EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of August, 2003, by and between XXXXXX BROTHERS HOLDINGS INC.,
a Delaware corporation (the "Seller"), and BANCMORTGAGE, A DIVISION OF NATIONAL
BANK OF COMMERCE, a federal bank (the "Servicer"), having an office at 000
Xxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, and acknowledged by AURORA
LOAN SERVICES INC., a Delaware corporation ("Aurora"), and XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association (the "Trustee"),
recites and provides as follows:
RECITALS
WHEREAS, the Seller has conveyed certain Mortgage Loans identified on
Exhibit C hereto (the "Serviced Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO") pursuant to a
Mortgage Loan Sale and Assignment Agreement dated as of August 1, 2003 (the
"Mortgage Loan Sale and Assignment Agreement"), which in turn has conveyed the
Serviced Mortgage Loans to the Trustee, pursuant to a trust agreement, dated as
of August 1, 2003 (the "Trust Agreement"), among the Trustee, Aurora, as master
servicer (together with any successor master servicer appointed pursuant to the
provisions of the Trust Agreement, the "Master Servicer"), and SASCO.
WHEREAS, Xxxxxx Brothers Bank, FSB ("Xxxxxx Brothers Bank") acquired
the Serviced Mortgage Loans from the Servicer, which Serviced Mortgage Loans
were either originated or acquired by the Servicer pursuant to the Mortgage Loan
Purchase and Warranties Agreement, dated as of July 11, 2003 (the "Purchase
Agreement"), and annexed as Exhibit B hereto.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by
the Servicer for Xxxxxx Brothers Bank pursuant to an Interim Servicing Agreement
for Conventional, Fixed and Adjustable Rate, Residential Mortgage Loans, dated
as of July 11, 2003 (the "Interim Servicing Agreement"), by and between Xxxxxx
Brothers Bank and the Servicer, which is annexed hereto as Exhibit D.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated as
of August 1, 2003 (the "Assignment and Assumption Agreement") and annexed hereto
as Exhibit F, Xxxxxx Brothers Bank has assigned all of its rights, title and
interest in the Serviced Mortgage Loans as well as all of its rights and
obligations as purchaser under the Purchase Agreement and the Interim Servicing
Agreement to the Seller, and the Seller has accepted such assignment.
WHEREAS, the Seller desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Interim Servicing Agreement shall continue to apply to the Serviced Mortgage
Loans, but only to the extent provided herein and that this Agreement shall
govern the Serviced Mortgage Loans for so long as such Serviced Mortgage Loans
remain subject to the provisions of the Trust Agreement and until September 1,
2003 (the "Servicing Transfer Date").
WHEREAS, the Seller and Servicer agree that on the Servicing Transfer
Date the Servicer shall no longer service the Mortgage Loans and shall transfer
servicing of the Mortgage Loans to the successor servicer designated by the
Seller herein.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right under the
conditions specified herein to terminate for cause the rights and obligations of
the Servicer under this Agreement.
WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller and the Servicer hereby
agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the Interim
Servicing Agreement incorporated by reference herein (regardless of whether such
terms are defined in the Interim Servicing Agreement or the Purchase Agreement),
shall have the meanings ascribed to such terms in the Trust Agreement.
2. Custodianship. The parties hereto acknowledge that LaSalle Bank
National Association will act as custodian of the Serviced Mortgage Files for
the Trustee pursuant to a Custodial Agreement, dated August 1, 2003, between
LaSalle Bank National Association and the Trustee.
3. Servicing Transfer Date. The Servicer agrees, with respect to the
Serviced Mortgage Loans, to perform and observe the duties, responsibilities and
obligations that are to be performed and observed under the provisions of the
Interim Servicing Agreement, except as otherwise provided herein and on Exhibit
A hereto, and that the provisions of the Interim Servicing Agreement, as so
modified, are and shall be a part of this Agreement to the same extent as if set
forth herein in full. The parties hereto acknowledge and agree that the
Servicing Transfer Date with respect to the Mortgage Loans is September 1, 2003.
On such date, the Servicer shall transfer all servicing of the Mortgage Loans in
accordance with the Interim Servicing Agreement and the Purchase Agreement to
the successor servicer designated by the Seller. The Seller hereby designates
Aurora to act as the Servicer of the Mortgage Loans on and after the Servicing
Transfer Date and to service such Mortgage Loans pursuant to an existing
servicing agreement between the Seller and Aurora.
4. Trust Cut-off Date. The parties hereto acknowledge that by operation
of Subsection 2.05 and Subsection 3.01 of the Interim Servicing Agreement, the
remittance on September 18, 2003 to the Trust Fund is to include principal due
after August 1, 2003 (the "Trust Cut-off Date") plus interest, at the Mortgage
Loan Remittance Rate collected during the related Due Period exclusive of any
portion thereof allocable to a period prior to the Trust Cut-off Date, with the
adjustments specified in clause (b) of Subsection 3.01 of the Interim Servicing
Agreement.
5. Servicing Fee. The obligation of the Trust Fund to pay Servicing Fee
set forth the Interim Servicing Agreement is payable solely from the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds, to the extent permitted by Section 2.05 of the Interim Servicing
Agreement) of the Monthly Payment collected by the Servicer or as otherwise
provided under Section 2.05.
6. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Serviced Mortgage Loans in accordance with the provisions
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of this Agreement. The Master Servicer, acting on behalf of the Trustee and the
SASCO 2003-26A Trust Fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as Xxxxxx Brothers Bank under the Interim
Servicing Agreement to enforce the obligations of the Servicer under the Interim
Servicing Agreement and the term "Purchaser" as used in the Interim Servicing
Agreement in connection with any rights of the Purchaser shall refer to the
Trust Fund or, as the context requires, the Master Servicer acting in its
capacity as agent for the Trust Fund, except as otherwise specified in Exhibit A
hereto. Notwithstanding anything herein to the contrary, in no event shall the
Master Servicer assume any of the obligations of Xxxxxx Brothers Bank under the
Interim Servicing Agreement and in connection with the performance of the Master
Servicer's duties hereunder, the parties and other signatories hereto agree that
the Master Servicer shall be entitled to all of the rights, protections and
limitations of liability afforded to the Master Servicer under the Trust
Agreement.
7. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations and warranties
regarding the characteristics of the Serviced Mortgage Loans in connection with
the transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto.
8. Notices. All notices and communications between or among the parties
hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under this
Agreement shall be delivered to the Master Servicer at the following address:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SASCO 0000-00X
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made by the Servicer with respect to the
Mortgage Loans shall be made to the Master Servicer at the following wire
account:
JPMorgan Chase Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc., Master Servicing Payment
Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2003-26A
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All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Xxxxx Fargo Bank Minnesota, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Client Manager - SASCO 0000-00X
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller at the following address:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Contract Finance - Xxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Servicer hereunder shall be
delivered to the address of its office as set forth in the first paragraph of
this Agreement.
9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:_________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
BANCMORTGAGE, A DIVISION OF NATIONAL
BANK OF COMMERCE,
as Servicer
By:_________________________________
Name:
Title:
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:______________________________________
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:______________________________________
Name: Xxx Xxxxx
Title: Vice President
EXHIBIT A
Modifications to the Interim Servicing Agreement
1. The definition of "Eligible Investments" in Article I is hereby amended in
its entirety to read as follows:
"Eligible Investments": Any one or more of the obligations and
securities listed below which investment provides for a date of
maturity not later than the Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in, certificates
of deposits of, or bankers' acceptances issued by, any depository
institution or trust company (including U.S. subsidiaries of foreign
depositories and the Trustee or any agent of the Trustee, acting in
its respective commercial capacity) incorporated or organized under
the laws of the United States of America or any state thereof and
subject to supervision and examination by federal or state banking
authorities, so long as at the time of investment or the contractual
commitment providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the commercial
paper or other short-term debt or deposit obligations of such holding
company or deposit institution, as the case may be) have been rated by
each Rating Agency in its highest short-term rating category or one of
its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct Obligations
or securities guaranteed by Xxxxxx Xxx, Xxxxxx Xxx or Xxxxxxx Mac with
any registered broker/dealer subject to Securities Investors'
Protection Corporation jurisdiction or any commercial bank insured by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured
and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of
America or any state thereof which have a credit rating from each
Rating Agency, at the time of investment or the contractual commitment
providing for such investment, at least equal to one of the two
highest long-term credit rating categories of each Rating Agency;
provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the aggregate principal balance of
the Mortgage Loans; provided, further, that such securities will not
be Eligible Investments if they are published as being under review
with negative implications from any Rating Agency;
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(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date of
issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on behalf
of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current rating
by each Rating Agency of any of the Certificates. Such investments in
this subsection (viii) may include money market mutual funds or common
trust funds, including any fund for which the Trustee, the Master
Servicer or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (x) the Trustee, the Master
Servicer or an affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (y) the Trustee, the
Master Servicer or an affiliate thereof charges and collects fees and
expenses for services rendered pursuant to this Agreement, and (z)
services performed for such funds and pursuant to this Agreement may
converge at any time; provided, however, that no such instrument shall
be an Eligible Investment if such instrument evidences either (i) a
right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and
interest payments derived from obligations underlying such instrument
and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the
yield to maturity at par of such underlying obligations.
2. A definition of "Xxxxxx Mae" is hereby added to Article I to immediately
follow the definition of "Xxxxxx Xxx Guides," to read as follows:
"Xxxxxx Mae": The Government National Mortgage Association, or any
successor thereto.
3. A new definition of "Mortgage Loan" is hereby added to Article I to
immediately follow the definition of "Mortgage Impairment Insurance
Policy," to read as follows:
"Mortgage Loan": An individual servicing retained Mortgage Loan which
has been purchased from the Servicer by Xxxxxx Brothers Bank, FSB and
is subject to this Agreement being identified on the Mortgage Loan
Schedule to this Agreement, which Mortgage Loan includes without
limitation the Mortgage Loan documents, the monthly reports, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits,
proceeds and obligations arising from or in connection with such
Mortgage Loan.
4. A new definition of "Mortgage Loan Schedule" is hereby added to Article I
to immediately follow the definition of "Mortgage Loan Remittance Rate," to
read as follows:
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"Mortgage Loan Schedule": The schedule of Mortgage Loans attached as
Exhibit C to this Agreement setting forth certain information with
respect to the Mortgage Loans purchased from the Servicer by Xxxxxx
Brothers Bank, FSB pursuant to the Purchase Agreement.
5. The definition of "Qualified Depository" is hereby amended and restated in
its entirety to read as follows:
"Qualified Depository": Any of (i) a federal or state-chartered
depository institution the accounts of which are insured by the FDIC
and whose commercial paper, short-term debt obligations or other
short-term deposits are rated at least "A-1+" by Standard & Poor's if
the deposits are to be held in the account for less than 30 days, or
whose long-term unsecured debt obligations are rated at least "AA-" by
Standard & Poor's if the deposits are to be held in the account for
more than 30 days, or (ii) the corporate trust department of a federal
or state-chartered depository institution subject to regulations
regarding fiduciary funds on deposit similar to Title 12 of the Code
of Federal Regulations Section 9.10(b), which, in either case, has
corporate trust powers, acting in its fiduciary capacity, or (iii)
Xxxxxx Brothers Bank, F.S.B., a federal savings bank.
6. A new definition of "Qualified GIC" is hereby added to Article I to
immediately follow the definition of "Qualified Depository", to read as
follows:
"Qualified GIC": A guaranteed investment contract or surety bond
providing for the investment of funds in the Custodial Account and
insuring a minimum, fixed or floating rate of return on investments of
such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other corporation
whose long-term debt is rated by each Rating Agency in one of its two
highest rating categories or, if such insurance company has no
long-term debt, whose claims paying ability is rated by each Rating
Agency in one of its two highest rating categories, and whose
short-term debt is rated by each Rating Agency in its highest rating
category;
(b) provide that the Servicer may exercise all of the rights
under such contract or surety bond without the necessity of taking any
action by any other Person;
(c) provide that if at any time the then current credit standing
of the obligor under such guaranteed investment contract is such that
continued investment pursuant to such contract of funds would result
in a downgrading of any rating of the Servicer, the Servicer shall
terminate such contract without penalty and be entitled to the return
of all funds previously invested thereunder, together with accrued
interest thereon at the interest rate provided under such contract to
the date of delivery of such funds to the Trustee;
(d) provide that the Servicer's interest therein shall be
transferable to any successor Servicer or the Master Servicer
hereunder; and
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(e) provide that the funds reinvested thereunder and accrued
interest thereon be returnable to the Custodial Account, as the
case may be, not later than the Business Day prior to any
Determination Date.
7. A new definition of "Rating Agency" is hereby added to Article I to
immediately follow the definition of "Qualified Insurer", to read as
follows:
"Rating Agency": Xxxxx'x Investors Service, Inc., Fitch Ratings
or Standard & Poor's, a division of the XxXxxx-Xxxx Companies,
Inc., or any successor of the foregoing.
8. Section 2.01 (Seller to Act as Servicer) is hereby amended as follows:
(i) by deleting the first sentence of the second paragraph of
such section and replacing it with the following:
Consistent with the terms of this Agreement, the Seller may
waive, modify or vary any term of any Mortgage Loan or consent to
the postponement of any such term or in any manner grant
indulgence to any Mortgagor if in the Seller's reasonable and
prudent determination such waiver, modification, postponement or
indulgence is not materially adverse to the Purchaser, provided,
however, that unless the Mortgagor is in default with respect to
the Mortgage Loan or such default is, in the judgement of the
Seller, imminent, the Seller shall not permit any modification
with respect to any Mortgage Loan that would change the Mortgage
Interest Rate, forgive the payment of principal or interest,
reduce or increase the outstanding principal balance (except for
actual payments of principal) or change the final maturity date
on such Mortgage Loan.
(ii) by adding the following to the end of the second paragraph
of such section:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer
shall forward to the Master Servicer copies of any documents
evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained in
the Interim Servicing Agreement, the Servicer shall not make or
permit any modification, waiver or amendment of any term of any
Mortgage Loan that would cause any REMIC created under the Trust
Agreement to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d) of
the Code.
9. Section 2.03 (Collection of Mortgage Loan Payments) is hereby amended by
replacing the words "Continuously from the date hereof until the related
Servicing Transfer Date" in the first and second lines thereof to
"Continuously from the Closing Date until the date the Mortgage Loan ceases
to be subject to this Agreement".
10. Section 2.04 (Establishment of and Deposits to Custodial Account) is hereby
amended by:
(i) replacing the words "Xxxxxx Brothers Bank, FSB, Residential Fixed and
Adjustable Rate Mortgage Loans, Group No. 2003-1 and various
Mortgagors" with the words "the SASCO 2003-26A Trust Fund".
11. Section 2.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by deleting the word "and" at the end of clause (v), by replacing
the period at the end of clause (vi) with a semicolon and by adding the
following new clauses (vii), (viii) and (ix):
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(vii) to invest funds in the Custodial Account in Eligible
Investments in accordance with Section 2.10;
(ix) to transfer funds to another Qualified Depository in
accordance with Section 2.10 hereof.
12. Section 2.06 (Establishment of and Deposits to Escrow Account) is hereby
amended by replacing the words "Xxxxxx Brothers Bank, FSB Residential Fixed
and Adjustable Rate Mortgage Loans, Group No. 2003-1, and various
Mortgagors" with "the SASCO 2003-26A Trust Fund."
13. Section 2.17 (Title, Management and Disposition of REO Property) is hereby
amended by:
(i) adding the following paragraph as the third paragraph of
such Section:
Notwithstanding anything to the contrary contained in this
Section 2.17, in connection with a foreclosure or acceptance of a
deed in lieu of foreclosure, in the event the Servicer has
reasonable cause to believe that a Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, or if
the Trustee or the Master Servicer otherwise requests, an
environmental inspection or review of such Mortgaged Property to
be conducted by a qualified inspector shall be arranged by the
Servicer. Upon completion of the inspection, the Servicer shall
provide the Trustee and the Master Servicer with a written report
of such environmental inspection. In the event that the
environmental inspection report indicates that the Mortgaged
Property is contaminated by hazardous or toxic substances or
wastes, the Servicer shall not proceed with foreclosure or
acceptance of a deed in lieu of foreclosure. In the event that
the environmental inspection report is inconclusive as to the
whether or not the Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, the Servicer shall not,
without the prior approval of the Master Servicer, proceed with
foreclosure or acceptance of a deed in lieu of foreclosure. In
such instance, the Master Servicer shall be deemed to have
approved such foreclosure or acceptance of a deed in lieu of
foreclosure unless the Master Servicer notifies the Servicer in
writing, within two (2) Business Days after its receipt of
written notice of the proposed foreclosure or deed in lieu of
foreclosure from the Servicer, that it disapproves of the related
foreclosure or acceptance of a deed in lieu of foreclosure. The
Servicer shall be reimbursed for all Servicing Advances made
pursuant to this paragraph with respect to the related Mortgaged
Property from the Custodial Account.
(ii) by replacing the existing third paragraph of such section
(before the amendment made by (i) above) by the following
paragraph:
The Servicer shall use its Best Efforts to dispose of the
REO Property as soon as possible and shall sell such REO Property
in any event within three years after title has been taken to
such REO Property, unless (a) a REMIC election has not been made
with respect to the arrangement under which the Mortgage Loans
and the REO Property are held, and (b) the Servicer determines,
and gives an appropriate notice to the Master Servicer to such
effect, that a longer period is necessary for the orderly
liquidation of such REO Property. If a period longer than three
years is permitted under the foregoing sentence and is necessary
to sell any REO Property, (i) the Servicer shall report monthly
to the Master Servicer as to the progress being made in selling
such REO Property and (ii) if, with the written consent of the
Trustee, a purchase money mortgage is taken in
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connection with such sale, such purchase money mortgage shall
name the Servicer as mortgagee, and such purchase money mortgage
shall not be held pursuant to this Agreement, but instead a
separate participation agreement among the Servicer and Trustee
shall be entered into with respect to such purchase money
mortgage. Notwithstanding anything herein to the contrary, the
Servicer shall not be required to provide financing for the sale
of any REO Property.
(iii) by adding the following paragraph to the end of such
section:
Prior to acceptance by the Servicer of an offer to sell any
REO Property, the Servicer shall notify the Master Servicer of
such offer in writing which notification shall set forth all
material terms of said offer (each a "Notice of Sale"). The
Master Servicer shall be deemed to have approved the sale of any
REO Property unless the Master Servicer notifies the Servicer in
writing, within five (5) days after its receipt of the related
Notice of Sale, that it disapproves of the related sale, in which
case the Servicer shall not proceed with such sale.
(iv) by adding the following paragraph at the end of such
section:
Notwithstanding any other provisions of this Agreement,
no REO Property acquired by the trust fund provided for in the
Trust Agreement shall be rented (or allowed to continue to be
rented) or otherwise used, held or disposed of by or on behalf of
such trust fund in such a manner or pursuant to any terms that
would: (i) cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8)
of the Internal Revenue Code of 1986, as amended (the "Code"), or
(ii) subject any REMIC provided for in the Trust Agreement to the
imposition of any federal income taxes on income earned from such
REO Property, including any taxes imposed by reason of Sections
860F or 860G of the Code, unless the Servicer has agreed to
indemnify and hold harmless the trust fund provided for in the
Trust Agreement with respect to the imposition of any such taxes.
14. Section 3.02 (Statements to Purchaser) is hereby amended as follows:
(i) by replacing the first paragraph of such Section in its
entirety by the following two (2) paragraphs:
Not later than the fifth Business Day of each month, the
Servicer shall furnish to the Master Servicer (a) a monthly
remittance advice in the format set forth in Exhibit E-1 hereto
and a monthly defaulted loan report in the format set forth in
Exhibit E-2 hereto (or in such other format mutually agreed
between the Servicer and the Master Servicer) as to the
accompanying remittance and the period ending on the last day of
the preceding Determination Date and (b) all such information
required pursuant to clause (a) above on a magnetic tape or other
similar media reasonably acceptable to the Master Servicer.
(ii) by replacing the last paragraph of such Section 3.02 in its
entirety with the following paragraph:
Beginning with calendar year 2003, the Servicer shall
prepare and file any and all tax returns, information statements
or other filings for the portion of the tax year 2003 and the
portion of subsequent tax years for which the Servicer has
serviced some or all of the Mortgage Loans hereunder as such
returns, information statements or other filings are required to
be delivered to any governmental taxing authority or to the
Master Servicer pursuant to any applicable law with respect to
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the Mortgage Loans and the transactions contemplated hereby. In
addition, the Servicer shall provide the Master Servicer with
such information concerning the Mortgage Loans as is necessary
for the Master Servicer to prepare the Trust Fund's federal
income tax return as the Master Servicer may reasonably request
from time to time.
15. The parties hereto acknowledge that Section 5.01 (Provision of Information)
and Section 5.02 (Financial Statements; Servicing Facilities) are
inapplicable to this Agreement.
16. Section 6.03 (Termination Upon Transfer of Servicing; Termination
Procedures) is hereby amended by replacing all references to "Purchaser" in
the second and fourth paragraphs with "Xxxxxx Brothers Holdings Inc."
17. Sections 8.01 (Indemnification) and 8.02 (Limitation on Liability of Seller
and Others) is replaced by the following:
The Servicer shall indemnify the Trust Fund, the Depositor,
the Trustee and the Master Servicer and hold each of them
harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and
related costs, judgements, and any other costs, fees and expenses
that any of such parties may sustain in any way related to the
failure of the Servicer to perform its duties and service the
Mortgage Loans in strict compliance with the terms of this
Agreement. The Servicer immediately shall notify Xxxxxx Brothers
Holdings Inc., the Depositor, the Master Servicer and the Trustee
or any other relevant party if a claim is made by a third party
with respect to this Agreement or the Mortgage Loans, assume
(with the prior written consent of the indemnified party) the
defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge
and satisfy any judgement or decree which may be entered against
it or any of such parties in respect of such claim. The Servicer
shall follow any written instructions received from the Trustee
in connection with such claim. The Trustee, from the assets of
the Trust Fund, promptly shall reimburse the Servicer for all
amounts advanced by it pursuant to the preceding sentence except
when the claim is in any way relates to the failure of the
Servicer to service and administer the Mortgage Loans in strict
compliance with the terms of this Agreement.
The Trust Fund shall indemnify the Servicer and hold it
harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses
that the Servicer may sustain in any way related to the failure
of the Trustee or the Master Servicer to perform its duties in
compliance with the terms of this Agreement.
In the event a dispute arises between an indemnified party
and the Servicer with respect to any of the rights and
obligations of the parties pursuant to this Agreement and such
dispute is adjudicated in a court of law, by an arbitration panel
or any other judicial process, then the losing party shall
indemnify and reimburse the winning party for all attorney's fees
and other costs and expenses related to the adjudication of said
dispute.
18. The first paragraph of Section 8.03 (Limitation on Resignation and
Assignment by Seller) is hereby amended in its entirety to read as follows:
The Servicer shall neither assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or
A-8
any portion hereof (to other than a third party in the case of
outsourcing routine tasks such as taxes, insurance and property
inspection, in which case the Servicer shall be fully liable for
such tasks as if the Servicer performed them itself) or sell or
otherwise dispose of all or substantially all of its property or
assets without the prior written consent of the Trustee and the
Master Servicer, which consent shall be granted or withheld in
the reasonable discretion of such parties; provided, however,
that the Servicer may assign its rights and obligations hereunder
without prior written consent of the Trustee and the Master
Servicer to any entity that is directly owned or controlled by
the Servicer, and the Servicer guarantees the performance of such
entity hereunder. In the event of such assignment by the
Servicer, the Servicer shall provide the Trustee and the Master
Servicer with a written statement guaranteeing the successor
entity's performance of the Servicer's obligations under the
Agreement.
19. A new Section 12.11 (Intended Third Party Beneficiaries) is hereby added to
read as follows:
Section 12.11 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein,
that the Master Servicer and the Trustee receive the benefit of
the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions.
The Servicer shall have the same obligations to the Master
Servicer and the Trustee as if they were parties to this
Agreement, and the Master Servicer and the Trustee shall have the
same rights and remedies to enforce the provisions of this
Agreement as if they were parties to this Agreement. The Servicer
shall only take direction from the Master Servicer (if direction
by the Master Servicer is required under this Agreement) unless
otherwise directed by this Agreement. Notwithstanding the
foregoing, all rights and obligations of the Master Servicer and
the Trustee hereunder (other than the right to indemnification)
shall terminate upon termination of the Trust Agreement and of
the Trust Fund pursuant to the Trust Agreement.
20. Acknowledgement. The Servicer hereby acknowledges that the rights of Xxxxxx
Brothers Bank, FSB under the Servicing Agreement, as amended by this
Agreement, will be assigned to SASCO under the Mortgage Loan Sale and
Assignment Agreement, and subsequently to the Trust Fund under the Trust
Agreement and agrees that the Mortgage Loan Sale and Assignment Agreement
and the Trust Agreement will constitute an assignment and assumption of the
rights of Xxxxxx Brothers Bank, FSB under the Servicing Agreement to SASCO
and the Trust Fund, as applicable. In addition, the Trust Fund will make a
REMIC election. The Servicer hereby consents to such assignment and
assumption and acknowledges the Trust Fund's REMIC election.
A-9
EXHIBIT B
Purchase Agreement
[INTENTIONALLY OMITTED]
B-1
EXHIBIT C
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Interim Servicing Agreement
See Exhibit 99.6
D-1
EXHIBIT E-1
STANDARD LAYOUT FOR MONTHLY REMITTANCE ADVICE
FIELD NAME DESCRIPTION FORMAT
---------- ----------- ------
INVNUM INVESTOR LOAN NUMBER Number no decimals
SERVNUM SERVICER LOAN NUMBER, REQUIRED Number no decimals
BEGSCHEDBAL BEGINNING SCHEDULED BALANCE FOR SCHED/SCHED Number two decimals
BEGINNING TRAIL BALANDE FOR ACTUAL/ACTUAL,
REQUIRED
SCHEDPRIN SCHEDULED PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED Number two decimals
ACTUAL PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
REQUIRED, .00 IF NO COLLECTIONS
CURT1 CURTAILMENT 1 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT1DATE CURTAILMENT 1 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT1ADJ CURTAILMENT 1 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
CURT2 CURTAILMENT 2 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT2DATE CURTAILMENT 2 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT2ADJ CURTAILMENT 2 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
LIQPRIN PAYOFF, LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
OTHPRIN OTHER PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
PRINREMIT TOTAL PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
INTREMIT NET INTEREST REMIT, INCLUDE PAYOFF INTEREST, Number two decimals
.00 IF NOT APPLICABLE
TOTREMIT TOTAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
ENDSCHEDBAL ENDING SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED Number two decimals
ENDING TRIAL BALANCE FOR ACTUAL/ACTUAL
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDACTBAL ENDING TRIAL BALANCE Number two decimals
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDDUEDATE ENDING ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT DD-MMM-YY
ACTCODE 60 IF PAIDOFF, BLANK IF NOT APPLICABLE Number no decimals
ACTDATE ACTUAL PAYOFF DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
INTRATE INTEREST RATE, REQUIRED Number seven decimals
Example .0700000 for 7.00%
SFRATE SERVICE FEE RATE, REQUIRED Number seven decimals
Example .0025000 for .25%
PTRATE PASS THRU RATE, REQUIRED Number seven decimals
Example .0675000 for 6.75%
PIPMT P&I CONSTANT, REQUIRED Number two decimals
.00 IF PAIDOFF
E-1-1
EXHIBIT E-2
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
1. Deal Identifier by Loan
2. SBO Loan Number
3. Loan Number
4. Investor Loan Number
5. Street Address
6. City
7. State
8. Zip Code
9. Original Loan Amount
10. Origination Date
11. First Payment Date
12. Current Loan Amount
13. Current Interest Rate
14. Current P&I Payment Amount
15. Scheduled Balance
16. Scheduled Due Date
17. Next Rate Adjustment Date
18. Next Payment Adjustment Date
19. Loan Term
20. Loan Type
21. Servicing Fee
22. Product Type
23. Property Type
24. Ownership Code
25. Actual Due Date
26. Delinquency Status
27. Reason for Default
28. FC Flag
29. Date Loan Reinstated
30. FC Suspended Date
31. Reason Suspended
32. FC Start Date (referral date)
33. Actual Notice of Intent Date
34. Actual First Legal Date
35. Date Bid Instructions Sent
36. Date F/C Sale Scheduled
37. Foreclosure Actual Sale Date
38. Actual Redemption End Date
39. Occupancy Status
40. Occupancy Status Date
41. Actual Eviction Start Date
42. Actual Eviction Complete Date
43. Loss Mit Workstation Status
44. Loss Mit Flag
45. Loss Mit Type
46. Loss Mit Start Date
47. Loss Mit Approval Date
E-2-1
48. Loss Mit Removal Date
49. REO Flag
50. Actual REO Start Date
51. REO List Date
52. REO List Price
53. Date REO Offer Received
54. Date REO Offer Accepted
55. REO Scheduled Close Date
56. REO Actual Closing Date
57. REO Net Sales proceeds
58. REO Sales Price
59. Paid Off Code
60. Paid in Full Date
61. MI Certificate Number
62. MI Cost
63. Other Advance Expenses
64. T&I Advances
65. Interest Advances
66. Liquidation Status
67. BK Atty Fees & Costs
68. FC Atty Fees & Costs
69. Eviction Atty Fees & Costs
70. Appraisal, BPO Costs
71. Property Preservation Fees
72. Actual Claim Filed Date
73. Actual Claim Amount Filed
74. Claim Amount Paid
75. Claim Funds Received Date
76. Realized Gain or Loss
77. BK Flag
78. Bankruptcy Chapter
79. Actual Bankruptcy Start Date
80. Actual Payment Plan Start Date
81. Actual Payment Plan End Date
82. Date POC Filed
83. Date Filed Relief/Dismissal
84. Relief/Dismissal Hearing Date
85. Date Relief/Dismissal Granted
86. Post Petition Due Date
87. Prepayment Flag
88. Prepayment Waived
89. Prepayment Premium Collected
90. Partial Prepayment Amount Collected
91. Prepayment Expiration Date
92. Origination Value Date
93. Origination Value Source
94. Original Value Amount
95. FC Valuation Amount
96. FC Valuation Source
97. FC Valuation Date
98. REO Value Source
E-2-2
99. REO Value(As-is)
100. REO Repaired Value
101. REO Value Date
102. Investor/Security Billing Date Sent
E-2-3
EXHIBIT F
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
