RECONSTITUTED SERVICING AGREEMENT
EXECUTION
COPY
RECONSTITUTED
SERVICING AGREEMENT
THIS
RECONSTITUTED SERVICING AGREEMENT (this “Agreement”), entered into as of the 1st
day of June, 2007, by and between XXXXXX BROTHERS HOLDINGS INC., a Delaware
corporation (the “Seller” or “Xxxxxx Brothers Holdings”), INDYMAC BANK, F.S.B.,
a Federal Savings Bank (the “Servicer”), and acknowledged by AURORA LOAN
SERVICES LLC, a Delaware limited liability company (“Aurora”), and U.S. BANK
NATIONAL ASSOCIATION, solely in its capacity as trustee (in such capacity,
the
“Trustee”) under the Trust Agreement (as defined below), recites and provides as
follows:
RECITALS
WHEREAS,
Xxxxxx Capital, a division of Xxxxxx Brothers Holdings Inc. (“Xxxxxx Capital”),
acquired certain fixed and adjustable rate, conventional, first lien,
residential mortgage loans from the Servicer pursuant to the Seller’s Warranties
and Servicing Agreement, by and between Xxxxxx Capital and the Servicer,
dated
as of September 1, 2005 for Conventional Residential Fixed and Adjustable
Rate
Mortgage Loans (Group No. 2005-1) (the
“SWSA”) attached hereto as Exhibit B.
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 June 1, 2007 (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 Trust Fund (or the Trustee on behalf of the Trust Fund), and
shall
have the right, under certain circumstances, to terminate 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 as described
in
Section 41 of Exhibit A hereunder.
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 Deutsche Bank National Trust Company will
act as
custodian of the Mortgage Loan Documents for the Trustee pursuant to a Custodial
Agreement, dated June 1, 2007, between Deutsche Bank National Trust Company
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 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 July 18, 2007 to the Trust Fund is to include
principal due after June 1, 2007 (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), (d) and
(e) 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 2007-12N 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
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 the
Servicer in Section 3.02 of the SWSA) in connection with the transactions
contemplated by the Trust Agreement and issuance of the Certificates issued
pursuant thereto.
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
on
behalf of the Trust Fund 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
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attn: Xxxxx
X.
Xxxxxxx - Master Servicing
LXS 0000-00X
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:
Bank
of
New York
ABA#:
000-000-000
Account
Name: Aurora
Loan Services LLC,
Master
Servicing Payment Clearing Account
Account
Number: 8900620730
Beneficiary:
Aurora Loan Services LLC
For
further credit to: LXS 2007-12N
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
Reference:
LXS
2007-12N
Attention: Corporate
Trust Services
Telephone: (000)
000-0000
Telecopier: (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:
Xxxxxx Xxxxxx
Telephone:
(000) 000-0000
E-mail:
xxxxxxx@xxxxxx.xxx
With
a
copy to:
Dechert,
LLP
0000
Xxxx
Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 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, the Seller 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 1-AP, Class 2-AP, Class 3-AP, Class 1-X, Class 2-X or Class
3-X
Certificates issued by the Trust Fund.
“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 1-AP, Class 2-AP, Class 3-AP, Class 1-X,
Class 2-X or Class 3-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.
12.Reg
AB
Compliance Issues.
Except
as disclosed in writing to the Seller, the Master Servicer, the Depositor
and
the Trustee prior to the Closing Date: (i) the Company is not aware and
has not received notice that any default, early amortization or other
performance triggering event has occurred as to any other securitization
due to
any act or failure to act of the Company; (ii) the Company has not been
terminated as servicer in a residential mortgage loan securitization, either
due
to a servicing default or to application of a servicing performance test
or
trigger; (iii) no material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage loans involving
the Company as servicer has been disclosed or reported by the Company; (iv)
no
material changes to the Company's policies or procedures with respect to
the
servicing function it will perform under this Agreement for mortgage loans
of a
type similar to the Mortgage Loans have occurred during the three-year period
immediately preceding the Closing Date; (v) there are no aspects of the
Company's financial condition that could have a material adverse effect on
the
performance by the Company of its servicing obligations under this Agreement
and
(vi) there are no affiliations, relationships or transactions relating to
the
Company or any Subservicer with any party listed on Exhibit F
hereto.
[SIGNATURE
PAGES IMMEDIATELY FOLLOW]
Executed
as of the day and year first above written.
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XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
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By:
Name:
Xxxxx Xxxxxxx
Title:
Authorized Signatory
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INDYMAC
BANK, F.S.B.,
as
Servicer
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By:
Name:
Title:
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Acknowledged:
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AURORA
LOAN SERVICES LLC,
as
Master Servicer
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By:
Name: Xxxxx
X. Xxxxxxx
Title: Senior
Vice President
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U.S.
BANK NATIONAL ASSOCIATION
as
Trustee and not individually
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By:
Name:
Title:
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EXHIBIT
A
Modifications
to the SWSA
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1.
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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.
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2.
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The
definition of “Determination Date” in Article I is hereby amended and
restated in its entirety to read as
follows:
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Determination
Date:
With
respect to each Remittance Date, the 15th day of the month in which such
Remittance Date occurs, or, if such 15th day is not a Business Day, the
succeeding Business Day.
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3.
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The
definition of “Eligible Investments” in Article I is hereby amended and
restated in its entirety to read as
follows:
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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 Mae, 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;
A-1
(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;
(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 and
has a
short-term rating of at least “A-1” or its equivalent by each Rating Agency.
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.
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4.
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A
definition of “Xxxxxx Mae” is hereby added to Article I to immediately
follow the definition of “Xxxxxxx Mac” to read as
follows:
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Xxxxxx
Mae:
The
Government National Mortgage Association, or any successor thereto.
A-2
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5.
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The
definition of “Mortgage Loan” in Article I is hereby amended and restated
in its entirety to read as follows:
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Mortgage
Loan:
An
individual servicing retained Mortgage Loan that has been purchased from
the
Servicer by Xxxxxx Brothers Bank, FSB or Xxxxxx Capital, a Division of Xxxxxx
Brothers Holdings Inc., which is subject to this Agreement and is 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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6.
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The
definition of “Mortgage Loan Schedule” in Article I is hereby amended and
restated in its entirety to read as
follows:
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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 or Xxxxxx Capital, a Division of Xxxxxx
Brothers Holdings Inc. pursuant to the SWSA.
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7.
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The
definition of “Qualified Depository” in Article I is hereby amended and
restated in its entirety to read as
follows:
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Qualified
Depository:
Any of
(i) a federal or state-chartered depository institution or trust company
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, or whose long-term unsecured debt obligations are rated
at least “AA-” by Standard & Poor’s if the amounts on deposit are to be held
in the account for no more than 365 days or whose commercial paper, short-term
debt obligations, demand deposits, or other short-term deposits are rated
at
least “A-2” by Standard & Poor’s if the amounts on deposit are to be held in
the account for no more than 30 days and are not intended to be used as credit
enhancement , 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, which has corporate trust powers, acting in its fiduciary capacity,
or (iii) Xxxxxx Brothers Bank, F.S.B., a federal savings bank.
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8.
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A
new definition of “Qualified GIC” is hereby added to Article I to
immediately follow the definition of “Qualified Depository” to read as
follows:
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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;
A-3
(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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9.
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A
new definition of “Realized Loss” is added to Article I immediately
following the definition of “Rating Agency” to read as
follows:
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Realized
Loss:
With
respect to each Liquidated Mortgage Loan (as defined in the Trust Agreement),
an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as
of the
date of liquidation, minus (ii) Liquidation Proceeds received, to the extent
allocable to principal, net of amounts that are reimbursable therefrom to
the
Master Servicer or the Company with respect to such Mortgage Loan (other
than
Monthly Advances of principal) including expenses of liquidation.
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10.
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The
definition of “Regulation
AB”
in Article I is hereby amended and restated in its entirety to
read as
follows:
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Regulation
AB:
Subpart
229.1100-Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1123,
as such may be amended from time to time, and subject to such clarification
and
interpretation as have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg.
1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may
be
provided by the Commission or its staff from time to time.
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11.
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The
definition of “Servicing Fee Rate” in Article I is hereby amended and
restated in its entirety to read as
follows:
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Servicing
Fee Rate:
0.375%
per annum.
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12.
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The
parties acknowledge that the fourth paragraph of Section 2.02 (Books
and
Records; Transfers of Mortgage Loans) shall be inapplicable to
this
Agreement.
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13.
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The
parties acknowledge that Section 2.03 (Delivery of Documents) shall
be
superseded by the provisions of the Custodial
Agreement.
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14.
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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”.
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A-4
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15.
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Section
3.01(f) (Ability to Perform) is hereby amended by deleting the
second and
third sentences thereof.
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16.
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Section
3.01(h) (No Consent Required) is hereby amended by deleting the
words “or
the sale of the Mortgage Loans”.
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17.
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Section
3.01(i) (Selection Process), Section 3.01(l) (Sale Treatment),
and Section
3.01(n) (No Brokers’ Fees) shall be inapplicable to this
Agreement.
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18.
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Four
new paragraphs are hereby added at the end of Section 3.01 (Company
Representations and Warranties) to read as
follows:
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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 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.
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.
A-5
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19.
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Section
4.01 (Company to Act as Servicer) is hereby amended as
follows:
|
(i) by
deleting the first, second, third and fourth sentences 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. Without limiting the
generality of the foregoing, the Company shall continue, and is hereby
authorized and empowered, to execute and deliver on behalf of itself and
the
Purchasers, all instruments of satisfaction or cancellation, or of partial
or
full release, discharge and all other comparable instruments, with respect
to
the Mortgage Loans and with respect to the Mortgaged Properties; provided,
further, that upon the full release or discharge, the Company shall notify
the
related Custodian of the related Mortgage Loan of such full release or
discharge.
(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.
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20.
|
Section
4.04 (Establishment of and Deposits to Custodial Account) is hereby
amended as follows:
|
(i) by
replacing the words “in trust for the Purchaser of Conventional Residential
Conventional Residential Fixed and Adjustable rate Mortgage Loans, Group
2005-1
and various Mortgagors” in the fourth, fifth and sixth lines of the first
sentence of the first paragraph with the words “in trust for LXS 2007-12N Trust
Fund”.
(ii) by
replacing the words “on a daily basis” in the first sentence of the second
paragraph with the words “within two (2) Business Days of receipt”.
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21.
|
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;
A-6
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22.
|
Section
4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by
deleting the words “Purchaser of Conventional Residential Conventional
Residential Fixed and Adjustable rate Mortgage Loans, Group 2005-1
and
various Mortgagors” in the fourth, fifth and sixth lines of the first
sentence of the first paragraph, and replacing it with the
following:
|
“in
trust
for LXS 2007-12N Trust Fund and various Mortgagors”.
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23.
|
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”, (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 furnished by the Servicer 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
by
or on behalf of the 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 Code; or (ii) subject any
Trust
REMIC to the imposition of any federal income taxes on the income earned
from
such REO Property, including any taxes imposed by reason of Sections 860F
or
860G(c) of the Code, unless the Company has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such taxes.
(iii)
replacing the word “advances” in the sixth line of the fifth paragraph thereof
with “Monthly Advances”, and (iv) adding the following to the end of such
Section:
A-7
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.
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24.
|
Section
5.01 (Remittances) is hereby amended by replacing the word “second” in the
second paragraph of such Section with the word “first”, and is further
amended by adding the following after the second paragraph of such
Section:
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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:
Bank
of
New York
ABA#:
000-000-000
Account
Name: Aurora
Loan Services LLC,
Master
Servicing Payment Clearing Account
Account
Number: 8900620730
Beneficiary:
Aurora Loan Services LLC
For
further credit to: LXS 2007-12N
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25.
|
Section
5.02 (Statements to Purchaser) is hereby amended and restated in
its
entirety to read as follows:
|
Section
5.02 Statements
to Master Servicer.
(a)
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.
(b)
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 a format
mutually agreed to between the Company and the Master Servicer.
(c)
The
Company shall promptly notify the Trustee, the NIMS Insurer, the Master Servicer
and the Depositor (i) of any legal proceedings pending against the Company
of
the type described in Item 1117 (§ 229.1117) of Regulation AB and (ii) of any
affiliation or relationship (of a type described in Item 1119 of Regulation
AB)
between the Company, each third-party originator, each subservicer
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB and any of the parties listed on Exhibit F hereto, and provide
a
description of such affiliation or relationship.
A-8
If
so
requested by the Trustee, the NIMS Insurer, the Master Servicer or the Depositor
on any date following the date on which information was first provided to
the
Trustee, the NIMS Insurer, the Master Servicer and the Depositor pursuant
to the
preceding sentence, the Company shall, within five Business Days following
such
request, confirm in writing the accuracy of the representations and warranties
set forth in Section 12 of the Reconstituted Servicing Agreement or, if such
a
representation and warranty is not accurate as of the date of such request,
provide reasonable adequate disclosure of the pertinent facts, in writing,
to
the requesting party.
The
Company shall provide to the Trustee, the NIMS Insurer, the Master Servicer
and
the Depositor prompt notice of the occurrence of any of the following: any
event
of default under the terms of this Agreement, any merger, consolidation or
sale
of substantially all of the assets of the Company, any material litigation
involving the Company, and any affiliation or other significant relationship
between the Company and other transaction parties.
(d)
Not
later than the tenth calendar day of each month (or if such calendar day
is not
a Business Day, the immediately preceding Business Day), the Company shall
provide to the Trustee, the NIMS Insurer, the Master Servicer and the Depositor
notice of the occurrence of any material modifications, extensions or waivers
of
terms, fees, penalties or payments relating to the Mortgage Loans during
the
related Due Period or that have cumulatively become material over time (Item
1121(a)(11) of Regulation AB) along with all information, data, and materials
related thereto as may be required to be included in the related Distribution
Report on Form 10-D.
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26.
|
Section
6.04 (Annual Statement as to Compliance) is hereby amended by replacing
the words “The Company shall deliver to the Purchaser, (a) on or before
March 1, 2006, an Officer’s Certificate, stating that” at the beginning of
the first sentence thereto with the words “The Company shall deliver to
the Master Servicer, the Trustee and the Depositor, (a) on or before
March
1, 2008, an Officer's Certificate in the form of Exhibit E hereto,
stating
that”.
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|
27.
|
Section
6.08 (Assessment of Servicing Compliance) is hereby amended by
adding the
following sentence to the end of such
Section:
|
“Such
report shall be addressed to the Purchaser, the Master Servicer and such
Depositor and signed by an authorized officer of the Company, and shall address
each of the Servicing Criteria specified in Exhibit G hereto”.
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28.
|
A
new Section 6.10 is hereby added to read as
follows:
|
Section
6.10 Reporting
Requirements of the Commission and Indemnification.
Notwithstanding
any other provision of this Agreement, the Company acknowledges and agrees
that
the purpose of Sections 3.01(p), 5.02(c) and (d), 6.03, 6.04, 6.08, 6.09
and
9.01 of this Agreement is to facilitate compliance by the Trustee, the Master
Servicer and the Depositor with the provisions of Regulation AB. Therefore,
the
Company agrees that (a) the obligations of the Company hereunder shall be
interpreted in such a manner as to accomplish that purpose, (b) such obligations
may change over time due to interpretive advice or guidance of the Commission,
convention or consensus among active participants in the asset-backed securities
markets, advice of counsel, or otherwise in respect of the requirements of
Regulation AB, (c) the Company shall agree to enter into such amendments
to this
Agreement as may be necessary, in the judgment of the Depositor, the Master
Servicer and their respective counsel, to comply with such interpretive advice
or guidance, convention, consensus, advice of counsel, or otherwise, (d)
the
Company shall otherwise comply with requests made by the Trustee, the Master
Servicer or the Depositor for delivery of additional or different information
as
such parties may determine in good faith is necessary to comply with the
provisions of Regulation AB and (e) the Company shall (i) agree to such
modifications and enter into such amendments to this Agreement as may be
necessary, in the judgment of the Depositor, the Master Servicer and their
respective counsel, to comply with any such clarification, interpretive
guidance, convention or consensus and (ii) promptly upon request provide
to the
Depositor for inclusion in any periodic report required to be filed under
the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), such items of
information regarding this Agreement and matters related to the Company,
(collectively, the “Servicer Information”), provided that such information shall
be required to be provided by the Company only to the extent that such shall
be
determined by the Depositor in its sole discretion and its counsel to be
necessary or advisable to comply with any Commission and industry guidance
and
convention.
A-9
The
Company hereby agrees to indemnify and hold harmless the Depositor,
the
Master Servicer, their respective officers and directors and each person,
if
any, who controls the Depositor or Master Servicer within the meaning of
Section
15 of the Securities Act of 1933, as amended (the “Act”), or Section 20 of the
Exchange Act, from and against any and all losses, claims, expenses, damages
or
liabilities to which the Depositor, the Master Servicer, their respective
officers or directors and any such controlling person may become subject
under
the Act or otherwise, as and when such losses, claims, expenses, damages
or
liabilities are incurred, insofar as such losses, claims, expenses, damages
or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
the Servicer Information or arise out of, or are based upon, the omission
or
alleged omission to state therein any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse
the
Depositor, the Master Servicer, their respective officers and directors and
any
such controlling person for any legal or other expenses reasonably incurred
by
it or any of them in connection with investigating or defending any such
loss,
claim, expense, damage, liability or action, as and when incurred; provided,
however, that the Company shall be liable only insofar as such untrue statement
or alleged untrue statement or omission or alleged omission relates solely
to
the information in the Servicer Information furnished to the Depositor or
Master
Servicer by or on behalf of the Servicer specifically in connection with
this
Agreement.
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29.
|
Section
9.01 (Indemnification; Third Party Claims) is hereby amended in
its
entirety to read as follows:
|
The
Company
shall indemnify the Purchaser, 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 (a) the failure of the Company
to
perform its duties and service the Mortgage Loans in strict compliance with
the
terms of this Agreement and (b) any failure by the Company, any Subservicer
or
any Subcontractor to deliver any information, report, certification accountants'
letter or other material when and as required under this Agreement, including
any report under Sections 6.04, 6.05 and 6.08. 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,
which consent shall not be unreasonably withheld or delayed) 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 Company shall provide the Trustee with a written report
of
all expenses and advances incurred by the Company pursuant to this Section
9.01,
and 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 relates to the failure of the Company to service
and administer the Mortgage Loans in strict compliance with the terms of
this
Agreement or the gross negligence, bad faith or willful misconduct of this
Company.
A-10
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30.
|
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 Trustee,
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 by reason of
willful misfeasance, bad faith or negligence in its performance of its
duties
or by
reason of reckless disregard for its obligations and duties under 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
willful misfeasance, bad faith or negligence in the performance of his or
its
duties hereunder or by reason of reckless disregard of his or 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.
|
31.
|
Section
10.01 (Events of Default) is hereby amended
by:
|
|
(a)
|
changing
any reference to “Purchaser” to “Master Servicer”;
|
A-11
|
(b)
|
amending
and restating subclause (vii) in its entirety to read 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”; and
|
|
(c)
|
replacing
the period at the end of subclause (ix) with “; or” and adding the
following subclauses immediately
thereafter:
|
(x)
any
failure by the Servicer to duly perform, within the required time period,
its
obligations to provide any certifications under Sections 6.03, 6.04 and 6.08,
which failure continues unremedied for a period of ten (10) days; or
(xi)
any
failure by the Servicer to duly perform, within the required time period,
its
obligations to provide any other information, data or materials required
to be
provided hereunder, including any items required to be included in any Exchange
Act report.
|
32.
|
Section
10.02 (Waiver of Defaults) is hereby amended by changing the reference
to
“Purchaser” to “Master Servicer”.
|
|
33.
|
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 Trustee in writing, provided such
termination is also acceptable to the Master Servicer and the Rating
Agencies.
|
At
the
time of any termination of the Company pursuant to 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.
|
34.
|
Section
11.02 (Termination Without Cause) is hereby amended by replacing
the first
reference to “Purchaser” with “Xxxxxx Brothers Holdings” and by replacing
all other references to “Purchaser” with “Xxxxxx Brothers
Holdings.”
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|
35.
|
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 8.04, 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 3.02 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-12
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
8.04, 10.01, 11.01 or 11.02 shall not affect any claims that the Master Servicer
or the Trustee may have against the Company arising out of the Company’s actions
or failure to act 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-13
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 (whether as a result
of
termination or removal of the Company or resignation of the Company or
otherwise), 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, removed or resigning Servicer from
its
own funds without reimbursement.
|
36.
|
Section
12.02 (Amendment) is hereby amended and restated in its entirety
as
follows:
|
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
and
the Trustee.
|
37.
|
Section
12.04 (Duration of Agreement) is hereby amended by deleting the
last
sentence thereof.
|
|
38.
|
Section
12.10 (Assignment by Purchaser) is hereby deleted in its
entirety.
|
|
39.
|
Section
12.11 (No Personal Solicitation) is hereby amended by replacing
the words
“the Purchaser” with “Xxxxxx Brothers Holdings” in each
instance.
|
|
40.
|
A
new Section 12.13 (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.
|
41.
|
Each
of Exhibit
D-1 (Form of Custodial Account Certification) and Exhibit E-1 (Form
of
Escrow Account Certification) is hereby amended to add a second
page
thereto containing the following:
|
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account
Number
__________, at the office of the Depository indicated above, and agrees to
honor
withdrawals on such account as provided above.
A-14
[DEPOSITORY],
as
Depository
By:
Name:
Title:
|
42.
|
Exhibit
J (Annual Certification) is hereby amended and restated in its
entirety to
be identical to Exhibit H to this
Agreement.
|
A-15
EXHIBIT
B
SWSA
SEE
EXHIBIT 99.3
B-1
EXHIBIT
C
[Reserved]
C-1
EXHIBIT
D
Schedule
of Serviced Mortgage Loans
[INTENTIONALLY
OMITTED]
D-1
EXHIBIT
E
ANNUAL
CERTIFICATION
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Aurora
Loan Services LLC
000
Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Mail
Stop
Code - 3195
Re: Xxxxxx
XS Trust Mortgage
Pass-Through Certificates, Series 2007-12N
Reference
is made to the Reconstituted Servicing Agreement, dated as of June 1, 2007
(the
“Agreement”), by and among Xxxxxx Brothers Holdings Inc., as seller and IndyMac
Bank, F.S.B., 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 Structured Asset Securities Corporation (the
“Depositor”), and their respective officers, directors and affiliates, and with
the knowledge and intent that they will rely upon this certification,
that:
|
1.
|
I
have reviewed the information required to be delivered to the Master
Servicer pursuant to the Agreement (the “Servicing
Information”).
|
|
2.
|
Based
on my knowledge, the Servicing Information does not contain any
material
untrue information or omit to state information necessary to make
the
Servicing Information, in light of the circumstances under which
such
information was provided, not misleading as of the date of this
certification;
|
|
3.
|
Based
on my knowledge, the Servicing Information has been provided to
the Master
Servicer when and as required under the Agreement;
and
|
|
4.
|
I
am responsible for reviewing the activities performed by the Servicer
under the Agreement, and based upon my knowledge and the review
required
under the Agreement, and except as disclosed in writing to you
on or prior
to the date of this certification either in the accountants’ report
required under the Agreement or in disclosure a copy of which is
attached
hereto, the Servicer has, for the period covered by the Form 10-K
Annual
Report, fulfilled its obligations under this
Agreement.
|
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated:
By:
Name:
Title:
E-1
EXHIBIT
F
TRANSACTION
PARTIES
Trustee:
U.S. Bank National Association
Master
Servicer: Aurora Loan Services LLC
Certificate
Insurer: N/A
Interest
Rate Swap and Cap Counterparty: Swiss Re Financial Products
Corporation
Deferred
Interest Cap Counterparty: Xxxxxx Brothers Special Financing Inc.
Servicers:
IndyMac Bank, F.S.B., Bank of America, National Association, Residential
Funding
Company, LLC, Countrywide Home Loans Servicing LP, Xxxx Financial, LLC,
GreenPoint Mortgage Funding, Inc. and Aurora Loan Services LLC
Originators:
IndyMac
Bank, F.S.B., Bank of America, National Association, Residential Funding
Company, LLC, Countrywide Home Loans, Inc., Xxxx Financial, LLC, GreenPoint
Mortgage Funding, Inc. and Xxxxxx Brothers Bank, FSB
Custodians:
Deutsche Bank National Trust Company, LaSalle Bank National Association,
U.S.
Bank National Association and Xxxxx Fargo Bank, N.A.
Seller:
Xxxxxx Brothers Holdings Inc.
F-1
EXHIBIT
G
FORM
OF
CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT OF COMPLIANCE
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
G-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
G-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
|
|
|
|
[NAME
OF
THE SERVICER] [NAME OF SUBSERVICER/SUBCONTRACTOR]
Date: _________________________
By:
________________________________
Name:
Title:
G-3
EXHIBIT
H
[Date]
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Reconstituted Servicing Agreement, dated as of June 1, 2007 (the
“Agreement”), by and among Xxxxxx Brothers Holdings Inc., IndyMac Bank,
F.S.B. (the “Servicer”) and Aurora Loan Services LLC (the “Master
Servicer”), and acknowledged by U.S. Bank National Association, as Trustee
(the “Trustee”).
|
I,
[identify the certifying individual], the [title] of the Servicer, certify
to
the Trustee, the Master Servicer and Structured Asset Securities Corporation
(the “Depositor”), and their officers, with the knowledge and intent that they
will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to any of the Depositor,
the
Master Servicer, the Securities Administrator, and the Trustee pursuant to
the
Agreement (collectively, the “Company Servicing Information”);
(2) Based
on
my knowledge, the Company Servicing Information, 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 the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Depositor, the
Master Servicer, the Securities Administrator and the Trustee;
(4) I
am
responsible for reviewing the activities performed by the Servicer as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant
to the
Agreement, have been provided to the Depositor, the Master Servicer, the
Securities Administrator and the Trustee. Any material instances of
noncompliance described in such reports have been disclosed to the Depositor,
the Master Servicer, the Securities Administrator and the Trustee. Any material
instance of noncompliance with the Servicing Criteria has been disclosed
in such
reports.
H-1
Date: _________________________
By:________________________________
Name:
Title:
H-2
