EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"),
entered into as of the 1st day of October, 2005, by and between XXXXXX BROTHERS
HOLDINGS INC., a Delaware corporation (the "Seller" or "Xxxxxx Brothers
Holdings"), COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited partnership
(the "Servicer"), a wholly owned subsidiary of COUNTRYWIDE HOME LOANS, INC., a
New York corporation ("Countrywide"), and acknowledged by AURORA LOAN SERVICES
LLC, a Delaware limited liability company ("Aurora"), and U.S. BANK NATIONAL
ASSOCIATION (the "Trustee"), recites and provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain
fixed and adjustable rate, conventional, first lien, residential mortgage loans
from Countrywide Home Loans, Inc. pursuant to the Flow Seller's Warranties and
Servicing Agreement between the Seller and Countrywide Home Loans, Inc., dated
as of June 1, 2004 for Conventional Residential Fixed Rate Mortgage Loans (the
"SWSA") attached hereto as Exhibit B and such Mortgage Loans are being serviced
on behalf of Countrywide Home Loans, Inc. by the Servicer.
WHEREAS, pursuant to an Assignment and Assumption Agreement,
dated October 1, 2005 (the "Assignment and Assumption Agreement") annexed as
Exhibit C hereto, the Seller acquired from the Bank all of the Bank's right,
title and interest in and to the mortgage loans currently serviced under the
SWSA and assumed for the benefit of each of the Servicer and the Bank the rights
and obligations of the Bank as owner of such mortgage loans pursuant to the
SWSA.
WHEREAS, the Seller has conveyed the mortgage loans identified on
Exhibit D hereto (the "Serviced Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO"), which in turn has
conveyed the Serviced Mortgage Loans to the Trustee, pursuant to a trust
agreement, dated as of October 1, 2005 (the "Trust Agreement"), among the
Trustee, Aurora, as master servicer ("Aurora," and, together with any successor
master servicer appointed pursuant to the provisions of the Trust Agreement, the
"Master Servicer") and SASCO.
WHEREAS, the Serviced Mortgage Loans are currently being serviced
by the Servicer pursuant to the SWSA.
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 rights of the Seller and the Master Servicer to terminate the rights and
obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of
the SWSA shall 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.
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 certain circumstances, to terminate the rights and obligations of the
Servicer under this Agreement.
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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 SWSA
incorporated by reference herein (regardless of whether such terms are defined
in the SWSA), shall have the meanings ascribed to such terms in the Trust
Agreement.
2. Custodianship. The parties hereto acknowledge that U.S. Bank National
ASSOCIATION will act as custodian of the Servicing Files for the Trustee
pursuant to a Custodial Agreement, dated October 1, 2005, between U.S. Bank
National Association and the Trustee.
3. Servicing. 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 SWSA, except as
otherwise provided herein and on Exhibit A hereto, and the parties hereto agree
that the provisions of the SWSA, as so modified, are and shall be a part of this
Agreement to the same extent as if set forth herein in full.
4. Trust Cut-off Date. The parties hereto acknowledge that by operation
of Section 4.05 and Section 5.01 of the SWSA, the remittance on November 18,
2005 to the Trust Fund is to include principal due after October 1, 2005 (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 clauses (b), (c) and (d) of Section 5.01 of the SWSA.
5. 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
of this Agreement. The Master Servicer, acting on behalf of the Trustee and the
LXS 2005-5N Trust Fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as the Seller under the SWSA to enforce
the obligations of the Servicer under the SWSA and the term "Purchaser" as used
in the SWSA 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. The Master Servicer shall be entitled to terminate the rights and
obligations of the Servicer under this Agreement upon the failure of the
Servicer to perform any of its obligations under this Agreement, which failure
results in an Event of Default as provided in Section 10.01 of the SWSA.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of the Seller under the SWSA 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.
6. No Representations. Neither Countrywide nor 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 (other
than those representations and warranties made by Countrywide in Section 3.02 of
the SWSA as of the date of the sale from Countrywide to the Bank) in connection
with the transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto.
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7. 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 LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Attn: E. Xxxx Xxxxxxxxxx - Master Servicing
LXS 2005-5N
Tel: 000-000-0000
All remittances required to be made to the Master Servicer under
this Agreement shall be made on a scheduled/scheduled basis to the following
wire account:
JPMorgan Chase Bank, N.A.
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services LLC,
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: LXS 2005-5N
All notices required to be delivered to the Trustee hereunder
shall be delivered to the Trustee at the following address:
U.S. Bank National Association
0 Xxxxxxx Xxxxxx
Xxxxxx, X.X. 00000
Attention: Corporate Trust Services
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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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: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert, LLP
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder
shall be delivered to its office at the address for notices as set forth in the
SWSA.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR
OTHER CHOICE OF LAW RULES TO THE CONTRARY.
9. 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.
10.NIMS Insurer. In addition to the terms and conditions set forth in
this Agreement, any and all rights of the Master Servicer and Trustee to receive
notices from the Servicer pursuant to this Agreement shall hereby be equally
granted to the NIMS Insurer. The Master Servicer or the Trustee shall notify the
Servicer in writing of the name and address of the NIMS insurer and the name and
telephone number of the appropriate contact employee of the NIMS Insurer. For
any and all obligations of the Servicer to obtain consent from the Master
Servicer and the Trustee pursuant to this Agreement, the Servicer must also
obtain such consent from the NIMS Insurer. Notwithstanding any other provision
in this Agreement, the Trust Fund shall hold harmless and indemnify the Servicer
for any failure of the NIMS Insurer to comply with the provisions of this
Agreement. 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 NIMS Insurer receive the benefit of
the provisions of this Agreement as an intended third party beneficiary of this
Agreement to the extent of such provisions. The Servicer shall have the same
obligations to the NIMS Insurer as if it was a party to this Agreement, and the
NIMS Insurer shall have the same rights and remedies to enforce the provisions
of this Agreement as if it was a party to this Agreement. The parties hereto
agree to cooperate in good faith to amend this Agreement in accordance with the
terms hereof to include such other provisions as may be reasonably requested by
the NIMS Insurer. Notwithstanding the foregoing, all rights of the NIMS Insurer
set forth in this Agreement shall exist only so long as the NIM Securities
issued pursuant to the NIMS Transaction remain outstanding or the NIMS Insurer
is owed amounts in respect of its guarantee of payment on such NIM Securities.
NIM Security shall mean any net interest margin security issued
by an owner trust or special purpose entity that is holding all rights, title
and interest in and to the Class X Certificates issued by the Trust Fund.
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NIMS Insurer shall mean collectively, any insurance companies
issuing a financial guaranty insurance policy covering certain payments to be
made on NIM Securities pursuant to a NIMS Transaction.
NIMS Transaction shall mean any transaction in which NIM
Securities are secured, in part, by the payments on the Class X Certificates
issued by the Trust Fund.
11.Distressed Mortgage Loans. The NIMS Insurer may, at its option,
purchase a Distressed Mortgage Loan; provided, however, prior to any such
purchase, the Servicer shall be required to continue to make Monthly Advances
with respect to such Distressed Mortgage Loans, to the extent required by the
applicable servicing provisions in the SWSA. Any such purchase shall be
accomplished by: (A) remittance to the Master Servicer of the Purchase Price (as
defined in the Trust Agreement) for the Distressed Mortgage Loan for deposit
into the Collection Account established by the Master Servicer pursuant to the
Trust Agreement, and (B) the NIMS Insurer's (i) acknowledgment and agreement to
retain Servicer, as the servicer for any such purchased Distressed Mortgage
Loan, to service such Distressed Mortgage Loan pursuant to the provisions of the
SWSA, and (ii) assumption, for the benefit of the Servicer, the rights and
obligations of the Trust Fund as owner of such purchased Distressed Mortgage
Loans pursuant to the SWSA. The Trustee and the Servicer shall immediately
effectuate the conveyance of the purchased Distressed Mortgage Loans to the NIMS
Insurer exercising the purchase option, including prompt delivery of the
Servicing File and all related documentation to the applicable NIMS Insurer. A
Distressed Mortgage Loan is as of any Determination Date a Mortgage Loan that is
delinquent in payment for a period of ninety (90) days or more, without giving
effect to any grace period permitted by the related Mortgage Loan, or for which
the Servicer or Trustee has accepted a deed in lieu of foreclosure.
[SIGNATURE PAGES IMMEDIATELY FOLLOW]
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:_________________________________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
By: Countrywide GP, Inc.,
its General Partner
By:_________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By:_________________________________
Name:
Title:
Acknowledged:
AURORA LOAN SERVICES LLC,
as Master Servicer
By:_________________________________
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By:_________________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the SWSA
1. Unless otherwise specified herein, any provisions of the SWSA, including
definitions, relating to (i) representations and warranties relating to the
Mortgage Loans and not relating to the servicing of the Mortgage Loans, (ii)
Mortgage Loan repurchase obligations, (iii) Whole Loan and Pass-Through
Transfers and Reconstitution, and (iv) Assignments of Mortgage, shall be
disregarded for purposes relating to this Agreement. The exhibits to the
SWSA and all references to such exhibits shall also be disregarded.
2. 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.
3. A definition of "Xxxxxx Xxx" is hereby added to Article I to immediately
follow the definition of "Xxxxxxx Mac," to read as follows:
Xxxxxx Xxx: The Government National Mortgage Association, or any
successor thereto.
4. The definition of "Mortgage Loan" is hereby amended and restated in its
entirety to read as follows:
Mortgage Loan: An individual servicing retained Mortgage Loan
which has been purchased from the Company 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.
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5. The definition of "Mortgage Loan Schedule" is hereby amended and restated in
its entirety to read as follows:
Mortgage Loan Schedule: The schedule of Mortgage Loans attached
as Exhibit D 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 SWSA.
6. 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.
7. 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
(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.
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8. The parties acknowledge that the fourth paragraph of Section 2.02 (Books and
Records; Transfers of Mortgage Loans) shall be inapplicable to this
Agreement.
9. The parties acknowledge that Section 2.03 (Delivery of Documents) shall be
superseded by the provisions of the Custodial Agreement.
10. Section 3.01(c) (No Conflicts) is hereby amended by deleting the words "the
acquisition of the Mortgage Loans by the Company, the sale of the Mortgage
Loans to the Purchaser".
11. Section 3.01(f) (Ability to Perform) is hereby amended by deleting the
second sentence thereof.
12. Section 3.01(h) (No Consent Required) is hereby amended by deleting the
words "or the sale of the Mortgage Loans".
13. Section 3.01(i) (Selection Process), Section 3.01(j) (Pool Characteristics),
Section 3.01(l) (Sale Treatment), Section 3.01(n) (No Brokers' Fees) and
Section 3.01 (o) (Origination) shall be inapplicable to this Agreement.
14. Four new paragraphs are hereby added at the end of Section 3.01 (Company
Representations and Warranties) to read as follows:
It is understood and agreed that the representations and
warranties set forth in Section 3.01 (a) through (h) and (k) are
hereby restated as of the Closing Date and shall survive the
engagement of the Company to perform the servicing
responsibilities hereunder and the delivery of the Servicing
Files to the Company and shall inure to the benefit of the
Trustee, the Trust Fund and the Master Servicer. Upon discovery
by either the Company, the Master Servicer or the Trustee of a
breach of any of the foregoing representations and warranties
which materially and adversely affects the ability of the Company
to perform its duties and obligations under this Agreement or
otherwise materially and adversely affects the value of the
Mortgage Loans, the Mortgaged Property or the priority of the
security interest on such Mortgaged Property or the interest of
the Trustee or the Trust Fund, the party discovering such breach
shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or
notice to the Company of any breach of a representation or
warranty set forth in Section 3.01 which materially and adversely
affects the ability of the Company to perform its duties and
obligations under this Agreement or otherwise materially and
adversely affects the value of the Loans, the Mortgaged Property
or the priority of the security interest on such Mortgaged
Property, the Company shall use its best efforts promptly to cure
such breach in all material respects and, if such breach cannot
be cured, the Company shall, at the Master Servicer's option,
assign the Company's rights and obligations under this Agreement
(or respecting the affected Mortgage Loans) to a successor
servicer selected by the Master Servicer with the prior consent
and approval of the Trustee. Such assignment shall be made in
accordance with Section 12.01.
In addition, the Company shall indemnify (from its own
funds) the Trustee, the Trust Fund and Master Servicer and hold
each of them harmless against any costs resulting from any claim,
demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Company's representations and
warranties contained in this Agreement. It is understood and
agreed that the remedies set forth in this Section 3.01
constitute the sole remedies of the Master Servicer, the Trust
Fund and the Trustee respecting a breach of the foregoing
representations and warranties.
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Any cause of action against the Company relating to or
arising out of the breach of any representations and warranties
made in Section 3.01 shall accrue upon (i) discovery of such
breach by the Company or notice thereof by the Trustee or Master
Servicer to the Company, (ii) failure by the Company to cure such
breach within the applicable cure period, and (iii) demand upon
the Company by the Trustee or the Master Servicer for compliance
with this Agreement.
15. Section 4.01 (Company 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 Company
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 Company'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 judgment
of the Company, imminent, the Company 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 Company
shall forward to the Master Servicer copies of any documents
evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained in
this Agreement, the Company 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.
16. Section 4.04 (Establishment of and Deposits to Custodial Account) is hereby
amended as follows:
the words "in trust for the Purchaser of Conventional
Residential Conventional Residential Mortgage Loans, and various
Mortgagors" in the fourth and fifth lines of the first sentence
of the first paragraph shall be replaced by the following: "in
trust for LXS 2005-5N Trust Fund and various Mortgagors".
17. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by replacing the words from the word "Purchaser" in the sixth line
of clause (ii) to the end of such clause (ii) with the following:
the Trust Fund; provided however, that in the event that
the Company determines in good faith that any unreimbursed
Monthly Advances will not be recoverable from amounts
representing late recoveries of payments of principal or interest
respecting the particular Mortgage Loan as to which such Monthly
Advance was made or from Liquidation Proceeds or Insurance
Proceeds with respect to such Mortgage Loan, the Company may
reimburse itself for such amounts from the Custodial Account, it
being understood, in the case of any such reimbursement, that the
Company's right thereto shall be prior to the rights of the Trust
Fund;
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18. Section 4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by deleting the words "Purchaser of Conventional Residential
Mortgage Loans, and various Mortgagors" in the fifth line of the first
sentence of the first paragraph, and replacing it with the following:
"in trust for LXS 2005-5N Trust Fund and various Mortgagors."
19. Section 4.15 (Maintenance of LPMI Policy; Claims) is hereby amended by
adding the following sentence to the end of paragraph (a):
The Servicer will notify the Master Servicer or Xxxxxx Brothers
Holdings in the event that the LPMI Policy is terminated.
20. Section 4.16 (Title, Management and Disposition of REO Property) is hereby
amended by (i) replacing the reference to "one year" in the seventh line of
the third paragraph thereof with "three years" and (ii) adding two new
paragraphs after the fourth paragraph thereof to read as follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan,
the Company shall dispose of such REO Property not later than the
end of the third taxable year after the year of its acquisition
by the Trust Fund unless the Company has applied for and received
a grant of extension from the Internal Revenue Service to the
effect that, under the REMIC Provisions and any relevant proposed
legislation and under applicable state law, the applicable Trust
REMIC may hold REO Property for a longer period without adversely
affecting the REMIC status of such REMIC or causing the
imposition of a federal or state tax upon such REMIC. If the
Company has received such an extension, then the Company shall
continue to attempt to sell the REO Property for its fair market
value for such period longer than three years as such extension
permits (the "Extended Period"). If the Company has not received
such an extension and the Company is unable to sell the REO
Property within the period ending 3 months before the end of such
third taxable year after its acquisition by the Trust Fund or if
the Company has received such an extension, and the Company is
unable to sell the REO Property within the period ending three
months before the close of the Extended Period, the Company
shall, before the end of the three year period or the Extended
Period, as applicable, (i) purchase such REO Property at a price
equal to the REO Property's fair market value or (ii) auction the
REO Property to the highest bidder (which may be the Company) in
an auction reasonably designed to produce a fair price prior to
the expiration of the three-year period or the Extended Period,
as the case may be. The Trustee shall sign any document or take
any other action reasonably requested by the Company which would
enable the Company, on behalf of the Trust Fund, to request such
grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed
to continue to be rented) or otherwise used or held by or on
behalf of the Trust Fund in such a manner, pursuant to any terms
or for a period that would: (i) cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or (ii) result in the imposition
of any tax upon any REMIC included in the Trust Fund.
A-6
(iii) replacing the word "advances" in the sixth line of the fifth
paragraph thereof with "Monthly Advances", and (iv) by adding the
following to the end of such Section:
Prior to acceptance by the Company of an offer to sell any REO
Property, the Company 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 Company 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 Company shall not proceed with such sale.
21. Section 5.01 (Remittances) is hereby amended by adding the following after
the second paragraph of such Section:
All remittances required to be made to the Master Servicer
shall be made to the following wire account or to such other
account as may be specified by the Master Servicer from time to
time:
JPMorgan Chase Bank, N.A.
New York, New York
ABA #: 000-000-000
Account Name: Aurora Loan Services LLC
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: Aurora Loan Services, LXS 2005-5N
22. Section 5.02 (Statements to Purchaser) is hereby amended in its entirety to
read as follows:
Section 5.02 Statements to Master Servicer.
The Company shall deliver or cause to be delivered to the
Master Servicer executed copies of the custodial and escrow
account letter agreements pursuant to Sections 4.04 and 4.06
within 30 days of the Closing Date.
Not later than the tenth calendar day of each month, the
Company shall furnish to the Master Servicer an electronic file
providing loan level accounting data for the period ending on the
last Business Day of the preceding month in the format mutually
agreed to between the Company and the Master Servicer. The
information required by Exhibit E-1 and Exhibit E-2 is limited to
that which is readily available to the Company and is mutually
agreed to by the Company and Master Servicer.
23. Section 9.01 (Indemnification; Third Party Claims) is hereby amended in its
entirety to read as follows:
The Company shall indemnify the Trust Fund, 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, judgments and any other costs, fees and expenses that any
of such parties may sustain in any way related to the failure of
the Company to perform its duties and service the Mortgage Loans
in strict compliance with the terms of this Agreement. The
Company immediately shall notify the Purchaser, 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 judgment or decree which
may be entered against it or any of such parties in respect of
such claim. The Company 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 Company for all amounts advanced by it pursuant to
the preceding sentence except when the claim is in any way
related to the Company's indemnification pursuant to Section
6.02, or the failure of the Company to service and administer the
Mortgage Loans in strict compliance with the terms of this
Agreement.
A-7
The Trust Fund shall indemnify the Company 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 Company 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 Company 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.
24. Section 9.03 (Limitation on Liability of Company and Others) is hereby
amended in its entirety to read as follows:
Neither the Company nor any of the directors, officers,
employees or agents of the Company shall be under any liability
to the Master Servicer, the NIMS Insurer, the Trustee, the Trust
Fund or the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant
to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Company or any such
person against any liability that would otherwise be imposed for
its disregard for, or failure to perform its obligations and
duties under this Agreement, or by reason of any breach of the
terms and conditions of this Agreement. The Company and any
director, officer, employee or agent of the Company shall be
entitled to indemnification by the Trust Fund and will be held
harmless against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement, the
Trust Agreement, or the Certificates other than any loss,
liability or expense incurred by reason of its disregard for, or
failure to perform its obligations and duties hereunder. The
Company and any director, officer, employee or agent of the
Company may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Company shall be under no
obligation to appear in, prosecute or defend any legal action
that is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement and that in its opinion
may involve it in any expenses or liability; provided, however,
that the Company may in its sole discretion undertake any such
action that it may deem necessary or desirable in respect to this
Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund and the Company shall be entitled to be reimbursed
therefor out of the Custodial Account it maintains as provided by
Section 4.05.
A-8
25. Section 10.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master Servicer";
and
(b) amending subclause (vii) as follows: "the Company at any
time is neither a Xxxxxx Xxx or Xxxxxxx Mac approved
servicer, and the Master Servicer has not terminated the
rights and obligations of the Company under this Agreement
and replaced the Company with a Xxxxxx Mae or Xxxxxxx Mac
approved servicer within 30 days of the absence of such
approval; or".
26. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer".
27. Section 11.01 (Termination) is hereby amended by restating subclause (ii)
thereof to read as below and adding the following sentence after the first
sentence of Section 11.01:
(ii) mutual consent of the Company and the Master Servicer in
writing, provided such termination is also acceptable to
the Trustee and the Rating Agencies.
At the time of any termination of the Company pursuant to
this Section 11.01, the Company shall be entitled to all accrued
and unpaid Servicing Fees and unreimbursed Servicing Advances and
Monthly Advances; provided, however, in the event of a
termination for cause under Sections 10.01 hereof, such
unreimbursed amounts shall not be reimbursed to the Company until
such amounts are received by the Trust Fund from the related
Mortgage Loans.
28. Section 11.02 (Termination Without Cause) is hereby amended by replacing all
references to "Purchaser" with "Xxxxxx Brothers Holdings."
29. Section 12.01 (Successor to Company) is hereby amended in its entirety to
read as follows:
Simultaneously with the termination of the Company's
responsibilities and duties under this Agreement pursuant to
Sections 9.04, 10.01, 11.01(ii) or 11.02, the Master Servicer
shall, in accordance with the provisions of the Trust Agreement
(i) succeed to and assume all of the Company's responsibilities,
rights, duties and obligations under this Agreement, or (ii)
appoint a successor meeting the eligibility requirements of this
Agreement, and which shall succeed to all rights and assume all
of the responsibilities, duties and liabilities of the Company
under this Agreement with the termination of the Company's
responsibilities, duties and liabilities under this Agreement.
Any successor to the Company that is not at that time a servicer
of other mortgage loans for the Trust Fund shall be subject to
the approval of the Master Servicer, the Purchaser, the Trustee
and each Rating Agency (as such term is defined in the Trust
Agreement). Unless the successor servicer is at that time a
servicer of other mortgage loans for the Trust Fund, each Rating
Agency must deliver to the Trustee a letter to the effect that
such transfer of servicing will not result in a qualification,
withdrawal or downgrade of the then-current rating of any of the
Certificates. In connection with such appointment and assumption,
the Master Servicer or the Purchaser, as applicable, may make
such arrangements for the compensation of such successor out of
payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in
excess of that permitted the Company under this Agreement. In the
event that the Company's duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the
aforementioned sections, the Company shall discharge such duties
and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof
with the same degree of diligence and prudence which it is
obligated to exercise under this Agreement, and shall take no
action whatsoever that might impair or prejudice the rights or
financial condition of its successor. The resignation or removal
of the Company pursuant to the aforementioned sections shall not
become effective until a successor shall be appointed pursuant to
this Section 12.01 and shall in no event relieve the Company of
the representations and warranties made pursuant to Sections 3.01
and the remedies available to the Trust Fund under Section 3.03
shall be applicable to the Company notwithstanding any such
resignation or termination of the Company, or the termination of
this Agreement.
A-9
Within a reasonable period of time, but in no event longer
than 30 days of the appointment of a successor entity, the
Company shall prepare, execute and deliver to the successor
entity any and all documents and other instruments, place in such
successor's possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect
the purposes of such notice of termination. The Company shall
cooperate with the Trustee and the Master Servicer, as
applicable, and such successor in effecting the termination of
the Company's responsibilities and rights hereunder and the
transfer of servicing responsibilities to the successor servicer,
including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time
be credited by the Company to the Account or any Escrow Account
or thereafter received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Company and the
Master Servicer an instrument accepting such appointment, wherein
the successor shall make an assumption of the due and punctual
performance and observance of each covenant and condition to be
performed and observed by the Company under this Agreement,
whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and
liabilities of the Company, with like effect as if originally
named as a party to this Agreement. Any termination or
resignation of the Company or termination of this Agreement
pursuant to Sections 9.04, 10.01, 11.01 or 11.02 shall not affect
any claims that (i) the Master Servicer or the Trustee may have
against the Company arising out of the Company's actions or
failure to act, or (ii) the Company may have against the Trust
Fund, prior to any such termination or resignation.
The Company shall deliver, within three (3) Business Days
of the appointment of a successor Servicer, the funds in the
Custodial Account and Escrow Account and all Collateral Files,
Credit Files and related documents and statements held by it
hereunder to the successor Servicer and the Company shall account
for all funds and shall execute and deliver such instruments and
do such other things as may reasonably be required to more fully
and definitively vest in the successor all such rights, powers,
duties, responsibilities, obligations and liabilities of the
Company.
A-10
Upon a successor's acceptance of appointment as such, the
Company shall notify the Trustee and Master Servicer of such
appointment in accordance with the notice procedures set forth
herein.
Except as otherwise provided in this Agreement, all
reasonable costs and expenses incurred in connection with any
transfer of servicing hereunder (as a result of a termination of
the Company for cause pursuant to Section 10.01), including,
without limitation, the costs and expenses of the Master Servicer
or any other Person in appointing a successor servicer, or of the
Master Servicer in assuming the responsibilities of the Company
hereunder, or of transferring the Servicing Files and the other
necessary data to the successor servicer shall be paid by the
terminated Servicer from its own funds without reimbursement. The
Trust Fund shall be liable for all costs and expenses incurred in
connection with any transfer of servicing hereunder, other than
costs and expenses incurred in connection with a transfer of
servicing for cause as stated above.
30. Section 12.02 (Amendment) is hereby amended and restated in its entirety as
follows:
Section 12.02 (Amendment)
This Agreement may be amended from time to time by written
agreement signed by the Company and the Purchaser, with the
written consent of the Master Servicer, NIMS Insurer and the
Trustee.
31. Section 12.04 (Duration of Agreement) is hereby amended by deleting the last
sentence thereof.
32. Section 12.10 (Assignment by Purchaser) is hereby deleted in its entirety.
33. A new Section 12.12 (Intended Third Party Beneficiaries) is hereby added to
read as follows:
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 Company 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 Company
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.
A-11
34. A new Section 12.13 (Officer's Certificate) is hereby added to read as
follows:
By March 15th of each year beginning March 15, 2006, or at
any other time upon thirty (30) days written request, an officer
of the Servicer shall execute and deliver an Officer's
Certificate substantially in the form of Exhibit F attached
hereto, signed by the senior officer in charge of servicing of
the Servicer or any officer to whom that officer reports, to the
Master Servicer for the benefit of such Master Servicer and its
respective officers, directors and affiliates. Notwithstanding
the foregoing, in the event that as to any year a report on Form
10-K is not required to be filed with the Securities and Exchange
Commission with respect to the related securitization transaction
for the prior calendar year, then (i) the Depositor shall notify
the Servicer of that fact, and (ii) the Servicer shall not be
required to provide the Officer's Certificate described in this
Section 12.13.
A-12
EXHIBIT B
SWSA
[SEE EXHIBIT 99.3]
B-1
EXHIBIT C
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Schedule of Serviced Mortgage Loans
[INTENTIONALLY OMITTED]
D-1
EXHIBIT E-1
FORM OF 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
BEGINNING TRAIL BALANCE FOR ACTUAL/ACTUAL,
REQUIRED Number two decimals
SCHEDPRIN SCHEDULED PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED
ACTUAL PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
REQUIRED, .00 IF NO COLLECTIONS Number two decimals
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,
.00 IF NOT APPLICABLE Number two decimals
TOTREMIT TOTAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
ENDSCHEDBAL ENDING SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED
ENDING TRIAL BALANCE FOR ACTUAL/ACTUAL
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF Number two decimals
ENDACTBAL ENDING TRIAL BALANCE
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF Number two decimals
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%
SFRAT ESERVICE FEE RATE, REQUIRED Number seven decimals
E-1-1
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-1-2
EXHIBIT E-2
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
DATA FIELD FORMAT
---------------- -------------------- ----------------------
% of MI coverage NUMBER(6,5)
Actual MI claim filed date DATE(MM/DD/YYYY)
Actual bankruptcy start DATE(MM/DD/YYYY)
date
Actual MI claim amount NUMBER(15,2)
filed
Actual discharge date DATE(MM/DD/YYYY)
Actual due date DATE(MM/DD/YYYY)
Actual eviction complete DATE(MM/DD/YYYY)
date
Actual eviction start date DATE(MM/DD/YYYY)
Actual first legal date DATE(MM/DD/YYYY)
Actual redemption end DATE(MM/DD/YYYY)
date
Bankruptcy chapter VARCHAR2(2) 7= Chapter 7 filed 11= Chapter 11 filed
12= Chapter 12 filed 13= Chapter 13 filed
Bankruptcy flag VARCHAR2(2) Y=Active Bankruptcy N=No Active Bankruptcy
Bankruptcy Case Number VARCHAR2(15)
MI claim amount paid NUMBER(15,2)
DATA FIELD DATA DESCRIPTION
------------------------------------------------------
% of MI coverage The percent of coverage provided by the PMI
company in the event of loss on a defaulted loan.
Actual MI claim filed date Actual date that the claim was submitted to
the PMI company.
Actual bankruptcy start Actual date that the bankruptcy petition is
date filed with the court.
Actual MI claim amount The amount of the claim that was filed by the
filed servicer with the PMI company.
Actual discharge date Actual date that the Discharge Order is
entered in the bankruptcy docket.
Actual due date Actual due date of the next outstanding
payment amount due from the mortgagor.
Actual eviction complete Actual date that the eviction proceedings are
date completed by local counsel.
Actual eviction start date Actual date that the eviction proceedings are
commenced by local counsel.
Actual first legal date Actual date that foreclosure counsel filed the
first legal action as defined by state statute.
Actual redemption end Actual date that the foreclosure redemption
date period expires.
Bankruptcy chapter Chapter of bankruptcy filed.
Bankruptcy flag Servicer defined indicator that identifies that
the property is an asset in an active bankruptcy case.
Bankruptcy Case Number The court assigned case number of the
bankruptcy filed by a party with interest in
the property.
MI claim amount paid The amount paid to the servicer by the PMI
company as a result of submitting an MI
claim.
E-2-1
MI claim funds received DATE(MM/DD/YYYY)
date
Current loan amount NUMBER(10,2)
Date FC sale scheduled DATE(MM/DD/YYYY)
Date relief/dismissal DATE(MM/DD/YYYY)
granted
Date REO offer accepted DATE(MM/DD/YYYY)
Date REO offer received DATE(MM/DD/YYYY)
Delinquency value NUMBER(10,2)
Delinquency value source VARCHAR2(15) BPO= Broker's Price Opinion Appraisal=Appraisal
Delinquency value date DATE(MM/DD/YYYY)
Delinquency flag VARCHAR2(2) Y= 90+ delinq. Not in FC, Bky or Loss mit
N=Less than 90 days delinquent
Foreclosure flag VARCHAR2(2) Y=Active foreclosure N=No active foreclosure
Corporate expense balance NUMBER(10,2)
Foreclosure attorney DATE(MM/DD/YYYY)
referral date
MI claim funds received Actual date that funds were received from the
date PMI company as a result of transmitting an MI claim.
Current loan amount Current unpaid principal balance of the loan as
of the date of reporting to Aurora Master Servicing.
Date FC sale scheduled Date that the foreclosure sale is scheduled
to be held.
Date relief/dismissal Actual date that the dismissal or relief from
granted stay order is entered by the bankruptcy court.
Date REO offer accepted Actual date of acceptance of an REO offer.
Date REO offer received Actual date of receipt of an REO offer.
Delinquency value Value obtained typically from a BPO prior to
foreclosure referral not related to loss mitigation activity.
Delinquency value source Name of vendor or management company
that provided the delinquency valuation amount.
Delinquency value date Date that the delinquency valuation amount
was completed by vendor or property
management company.
Delinquency flag Servicer defined indicator that identifies that
the loan is delinquent but is not involved in loss mitigation, foreclosure,
bankruptcy or REO.
Foreclosure flag Servicer defined indicator that identifies
that the loan is involved in foreclosure
proceedings.
Corporate expense balance Total of all cumulative expenses advanced by
the servicer for non-escrow expenses such as
but not limited to: FC fees and costs,
bankruptcy fees and costs,
property preservation and property inspections.
Foreclosure attorney Actual date that the loan was referred to local
referral date counsel to begin foreclosure proceedings.
E-2-2
Foreclosure valuation NUMBER(15,2)
amount
Foreclosure valuation date DATE(MM/DD/YYYY)
Foreclosure valuation VARCHAR2(80) BPO= Broker's Price Opinion Appraisal=Appraisal
source
FHA 27011A transmitted DATE(MM/DD/YYYY)
date
FHA 27011 B transmitted DATE(MM/DD/YYYY)
date
VA LGC/ FHA Case VARCHAR2(15)
number
FHA Part A funds DATE(MM/DD/YYYY)
received date
Foreclosure actual sale date DATE(MM/DD/YYYY)
Servicer loan number VARCHAR2(15)
Loan type VARCHAR2(2) 1=FHA Residential 2=VA Residential
3=Conventional w/o PMI 4=Commercial
5=FHA Project 6=Conventional w/PMI
7=HUD 235/265 8=Daily Simple Interest Loan
9=Farm Loan U=Unknown
S=Sub prime
Loss mit approval date DATE(MM/DD/YYYY)
Loss mit flag VARCHAR2(2) Y= Active loss mitigation N=No active loss mitigation
Foreclosure valuation Value obtained during the foreclosure process.
amount Usually as a result of a BPO and typically used
to calculate the bid.
Foreclosure valuation date Date that foreclosure valuation amount was completed
by vendor or property management company.
Foreclosure valuation Name of vendor or management company
source that provided the foreclosure valuation
amount.
FHA 27011A transmitted Actual date that the FHA 27011A claim was
date submitted to HUD.
FHA 27011 B transmitted Actual date that the FHA 27011B
date claim was submitted to HUD.
VA LGC/ FHA Case Number that is assigned individually to the
number loan by either HUD or VA at the time of
origination. The number is located on the
Loan Guarantee Certificate (LGC) or the
Mortgage Insurance Certificate (MIC).
FHA Part A funds Actual date that funds were received from
received date HUD as a result of transmitting the 27011A
claim.
Foreclosure actual sale date Actual date that the foreclosure sale was held.
Servicer loan number Individual number that uniquely identifies
loan as defined by servicer.
Loan type Type of loan being serviced generally defined
by the existence of certain types of insurance.
(ie: FHA, VA, conventional insured,
conventional uninsured, SBA, etc.)
Loss mit approval date The date determined that the servicer and
mortgagor agree to pursue a defined loss
mitigation alternative.
Loss mit flag Servicer defined indicator that identifies that
the loan is involved in completing a loss
mitigation alternative.
E-2-3
Loss mit removal date DATE(MM/DD/YYYY)
Loss mit type VARCHAR2(2) L= Loss Mitigation LT=Litigation pending
NP=Pending non-performing sale CH= Charge off
DI= Deed in lieu FB= Forbearance plan
MO=Modification PC=Partial claim
SH=Short sale VA=VA refunding
Loss mit value NUMBER(10,2)
Loss mit value date DATE(MM/DD/YYYY)
Loss mit value source VARCHAR2(15) BPO= Broker's Price Opinion Appraisal=Appraisal
MI certificate number VARCHAR2(15)
LPMI Cost NUMBER(7,7)
Occupancy status VARCHAR2(1) O=Owner occupied T=Tenant occupied
U=Unknown V=Vacant
First Vacancy date/ DATE(MM/DD/YYYY)
Occupancy status date
Original loan amount NUMBER(10,2)
Original value amount NUMBER(10,2)
Origination date DATE(MM/DD/YYYY)
Loss mit removal date The date that the mortgagor is denied loss
mitigation alternatives or the date that the loss
mitigation alternative is completed resulting
in a current or liquidated loan.
Loss mit type The defined loss mitigation alternative
identified on the loss mit approval date.
Loss mit value Value obtained typically from a BPO prior to
foreclosure sale intended to aid in the
completion of loss mitigation activity.
Loss mit value date Name of vendor or management company
that provided the loss mitigation valuation
amount.
Loss mit value source Date that the lost mitigation valuation amount
was completed by vendor or property
management company.
MI certificate number A number that is assigned individually to the
loan by the PMI company at the time of
origination. Similar to the VA LGC/FHA
Case Number in purpose.
LPMI Cost The current premium paid to the PMI
company for Lender Paid Mortgage
Insurance.
Occupancy status The most recent status of the property
regarding who if anyone is occupying the
property. Typically a result of a routine
property inspection.
First Vacancy date/ The date that the most recent occupancy
Occupancy status date status was determined. Typically the date of
the most recent property inspection.
Original loan amount Amount of the contractual obligations (ie:
note and mortgage/deed of trust).
Original value amount Appraised value of property as of origination
typically determined through the appraisal
process.
Origination date Date that the contractual obligations (ie: note
and mortgage/deed of trust) of the mortgagor was executed.
E-2-4
FHA Part B funds received DATE(MM/DD/YYYY)
date
Post petition due date DATE(MM/DD/YYYY)
Property condition VARCHAR2(2) 1= Excellent 2=Good
3=Average 4=Fair
5=Poor 6=Very poor
Property type VARCHAR2(2) 1=Single family 2=Town house
3=Condo 4=Multifamily 5=Other
6=Prefabricated B=Commercial C=Land only
7=Mobile home U=Unknown D=Farm
A=Church P=PUD R=Row house
O=Co-op M=Manufactured housing 24= 2-4 family
CT=Condotel MU=Mixed use
Reason for default VARCHAR2(3) 001=Death of principal mtgr 02=Illness of principal mtgr
003=Illness of mtgr's family member
004=Death of mtgr's family member 005=Marital difficulties
006=Curtailment of income 007=Excessive obligations
008=Abandonment of property 009=Distant employee transfer
011=Property problem 012=Inability to sell property
013=Inability to rent property 014=Military service
015=Other 016=Unemployment
017=Business failure 019=Casualty loss
022=Energy-Environment costs 023= Servicing problems
026= Payment adjustment 027=Payment dispute
029=Transfer ownership pending 030=Fraud
031=Unable to contact borrower INC=Incarceration
REO repaired value NUMBER(10,2)
REO list price adjustment NUMBER(15,2)
amount
FHA Part B funds received Actual date that funds were received fro HUD
date as a result of transmitting the 27011B claim.
Post petition due date The post petition due date of a loan involved
in a chapter 13 bankruptcy.
Property condition Physical condition of the property as most
recently reported to the servicer by vendor or
property management company.
Property type Type of property secured by mortgage such
as: single family, 2-4 unit, etc.
Reason for default Cause of delinquency as identified by
mortgagor.
REO repaired value The projected value of the property that is
adjusted from the "as is" value assuming
necessary repairs have been made to the
property as determined by the
vendor/property management company.
REO list price adjustment The most recent listing/pricing amount as
amount updated by the servicer for REO properties.
E-2-5
REO list price adjustment DATE(MM/DD/YYYY)
date
REO value (as is) NUMBER(10,2)
REO actual closing date DATE(MM/DD/YYYY)
REO flag VARCHAR2(7) Y=Active REO N=No active REO
REO original list date DATE(MM/DD/YYYY)
REO original list price NUMBER(15,2)
REO net sales proceeds NUMBER(10,2)
REO sales price NUMBER(10,2)
REO scheduled close date DATE(MM/DD/YYYY)
REO value date DATE(MM/DD/YYYY)
REO value source VARCHAR2(15) BPO= Broker's Price Opinion Appraisal=Appraisal
Repay first due date DATE(MM/DD/YYYY)
Repay next due date DATE(MM/DD/YYYY)
REO list price adjustment The most recent date that the servicer advised
date the agent to make an adjustment to the REO
listing price.
REO value (as is) The value of the property without making any
repairs as determined by the vendor/property
management company.
REO actual closing date The actual date that the sale of the REO
property closed escrow.
REO flag Servicer defined indicator that identifies that
the property is now Real Estate Owned.
REO original list date The initial/first date that the property was
listed with an agent as an REO.
REO original list price The initial/first price that was used to list the
property with an agent as an REO.
REO net sales proceeds The actual REO sales price less closing costs
paid. The net sales proceeds are identified
within the HUD1 settlement statement.
REO sales price Actual sales price agreed upon by both the
purchaser and servicer as documented on the
HUD1 settlement statement.
REO scheduled close date The date that the sale of the REO property is
scheduled to close escrow.
REO value date Date that the vendor or management company
completed the valuation of the property
resulting in the REO value (as is).
REO value source Name of vendor or management company
that provided the REO value (as is).
Repay first due date The due date of the first scheduled payment
due under a forbearance or repayment plan
agreed to by both the mortgagor and servicer.
Repay next due date The due date of the next outstanding payment
due under a forbearance or repayment plan
agreed to by both the mortgagor and servicer.
E-2-6
Repay plan DATE(MM/DD/YYYY) The servicer defined date upon which the
broken/reinstated/closed servicer considers that the plan is no longer in
date effect as a result of plan completion or
mortgagor's failure to remit payments as
scheduled.
Repay plan created date DATE(MM/DD/YYYY) The date that both the mortgagor and servicer
agree to the terms of a forbearance or
repayment plan.
SBO loan number NUMBER(9) Individual number that uniquely identifies
loan as defined by Aurora Master Servicing.
Escrow balance/advance NUMBER(10,2) The positive or negative account balance that
balance is dedicated to payment of hazard insurance,
property taxes, MI, etc. (escrow items only)
Title approval letter DATE(MM/DD/YYYY) The actual date that the title approval was
received date received as set forth in the HUD title approval
letter.
Title package HUD/VA DATE(MM/DD/YYYY) The actual date that the title package was
date submitted to either HUD or VA.
VA claim funds received DATE(MM/DD/YYYY) The actual date that funds were received by
date the servicer from the VA for the expense
claim submitted by the servicer.
VA claim submitted date DATE(MM/DD/YYYY) The actual date that the expense claim was
submitted by the servicer to the VA.
VA first funds received NUMBER(15,2) The amount of funds received by the servicer
amount from VA as a result of the specified bid.
VA first funds received DATE(MM/DD/YYYY) The date that the funds from the specified bid
date were received by the servicer from the VA.
VA XXX submitted date DATE(MM/DD/YYYY) Actual date that the Notice of Election to
Convey was submitted to the VA.
Zip Code VARCHAR2(5) US postal zip code that corresponds to
property location.
E-2-7
FNMA Delinquency status VARCHAR2(3) 09=Forbearance 17=Preforeclosure sale
code 24=Drug seizure 26=Refinance 27=Assumption
28=Modification 29=Charge-off 30=Third-party sale
31=Probate 32=Military indulgence 43=Foreclosure
44=Deed-in-lieu 49=Assignment 61=Second lien considerations
62=VA no-bid 63=VA Refund 64=VA Buydown
65=Ch. 7 bankruptcy 66=Ch. 11 bankruptcy 67=Ch. 13 bankruptcy
FNMA delinquency reason VARCHAR2(3) 001=Death of principal mtgr 002=Illness of principal mtgr
code 003=Illness of mtgr's family member 004=Death of mtgr's family member
005=Marital difficulties 006=Curtailment of income
007=Excessive obligations 008=Abandonment of property
009=Distant employee transfer 011=Property problem
012=Inability to sell property 013=Inability to rent property
014=Military service 015=Other
016=Unemployment 017=Business failure
019=Casualty loss 022=Energy-Environment costs
023= Servicing problems 026= Payment adjustment
027=Payment dispute 029=Transfer ownership pending
030=Fraud 031=Unable to contact borrower
INC=Incarceration
Suspense balance NUMBER(10,2)
Restricted escrow balance NUMBER(10,2)
Investor number NUMBER (10,2)
FNMA Delinquency status The code that is electronically reported to
code FNMA by the servicer that reflects the current
defaulted status of a loan. (ie: 65, 67, 43 or
44)
FNMA delinquency reason The code that is electronically reported to
code FNMA by the servicer that describes the
circumstance that appears to be the primary
contributing factor to the delinquency.
Suspense balance Money submitted to the servicer, credited to
the mortgagor's account but not allocated to
principal, interest, escrow, etc.
Restricted escrow balance Money held in escrow by the mortgage
company through completion of repairs to
property.
Investor number Unique number assigned to a group of loans
in the servicing system.
E-2-8
EXHIBIT F
ANNUAL CERTIFICATION
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Re: Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2005-5N
Reference is made to the Reconstituted Servicing Agreement, dated as of October
1, 2005 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc., as
seller, and Countrywide Home Loans Servicing LP, as servicer (the "Servicer").
I, [identify the certifying individual], a [title] of the Servicer hereby
certify to Aurora Loan Services LLC (the "Master Servicer"), and its respective
officers, directors and affiliates, and with the knowledge and intent that it
will rely upon this certification, that:
1. I have reviewed the information required to be delivered to the Master
Servicer pursuant to the Servicing Agreement (the "Servicing Information");
2. Based on my knowledge, the information relating to the Mortgage Loans
submitted by the Servicer in its monthly reporting packages delivered to the
Master Servicer with respect to the Transaction, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading as of the date of this
certification;
3. Based on my knowledge, the Servicing Information required to be provided to
the Master Servicer by the Servicer under this Agreement has been provided
to the Master Servicer; and
4. I am responsible for reviewing the activities performed by the Servicer
under this Agreement and based upon the review required hereunder, and
except as disclosed in the Annual Statement of Compliance, the Annual
Independent Certified Public Accountant's Servicing Report and all servicing
reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer by the
Servicer, the Servicer has, as of this certification fulfilled its
obligations under this Agreement.
Name: ____________________________
Title: ____________________________
Date: ____________________________
F-1
