Exhibit 99.2
Execution Copy
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of June, 2006, by and between XXXXXX BROTHERS HOLDINGS INC., a
Delaware corporation (the "Seller" or "Xxxxxx Brothers Holdings"), and BANK OF
AMERICA, NATIONAL ASSOCIATION, a national banking association (referred to
herein as the "Servicer"), and acknowledged by AURORA LOAN SERVICES LLC, a
Delaware limited liability company ("Aurora"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking 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 Brothers Bank, FSB (the "Bank") acquired certain
conventional, negative amortization, residential, first lien mortgage loans (the
"Mortgage Loans") from the Servicer, which Mortgage Loans were originated or
acquired by the Servicer pursuant to the Third Amended and Restated Flow
Mortgage Loan Sale and Servicing Agreement between the Bank, as purchaser, and
the Servicer, as seller and as servicer, dated February 1, 2006 for Performing,
Residential Mortgage Loans and amended by the Regulation AB Compliance Addendum
dated February 23, 2006 (the "Regulation AB Addendum" and collectively the
"MLSSA"), which is annexed hereto as Exhibit B-1.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated June 1,
2006 (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 MLSSA 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 MLSSA.
WHEREAS, the Seller has conveyed certain 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, 2006 (the "Trust Agreement"), among the Trustee,
Aurora, as master servicer (together with any successor master servicer
appointed pursuant to the provisions of the Trust Agreement, the "Master
Servicer"), and SASCO.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by the
Servicer pursuant to the MLSAA.
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 MLSSA
shall continue to apply to the Serviced Mortgage Loans 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.
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 MLSSA incorporated by
reference herein (regardless of whether such terms are defined in the MLSSA),
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 Serviced Mortgage Files for the Trustee
pursuant to a Custodial Agreement, dated June 1, 2006, 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 MLSSA, except as
otherwise provided herein and on Exhibit A hereto, and that the provisions of
the MLSSA, 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
Subsection 11.05 and Subsection 11.15 of the MLSSA, the remittance on July 18,
2006 to the Trust Fund is to include principal due after June 1, 2006 (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 Subsection 11.15 of the MLSSA.
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
2006-10N Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement,
shall have the same rights as Xxxxxx Brothers Holdings under the MLSSA to
enforce the obligations of the Servicer under the MLSSA and the term "Purchaser"
as used in the MLSSA 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 Subsection 13.01 of the MLSSA.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of Xxxxxx Brothers Holdings under the
MLSSA 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 Subsection 7.01
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of the MLSSA) 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 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: Xxxxxx X. Xxxxxx - 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 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 2006-10N
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
Reference: LXS 0000-00X
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
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Attention: Contract Finance- Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert LLP
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder shall be
delivered to the address of its office as set forth in the MLSSA.
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 1-X or Class 2-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.
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"NIMS Transaction" shall mean any transaction in which NIM Securities are
secured, in part, by the payments on the Class 1-X or Class 2-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 MLSSA. 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
MLSSA, 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 MLSSA. 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 PAGE IMMEDIATELY FOLLOWS]
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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
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Servicer
By:
-----------------------------------
Name:
Title:
Acknowledged:
AURORA LOAN SERVICES LLC,
as Master Servicer
By:
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
as Trustee and not individually
By:
----------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the MLSSA
1. Unless otherwise specified herein, any provisions of the MLSSA, 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 and indemnification obligations relating to
such representations and warranties, (iii) Whole-Loan Transfers, Agency
Transfers and Securitizations and (iv) Assignments of Mortgage, shall be
disregarded for purposes relating to this Agreement. The exhibits to the
MLSSA and all references to such exhibits shall also be disregarded.
2. A new definition of "Best Efforts" is hereby added to Section 1 to
immediately follow the definition of "Balloon Mortgage Loan", to read as
follows:
Best Efforts: Efforts determined to be reasonably diligent by the
Servicer in its reasonable discretion. Such efforts do not require the
Servicer to enter into any litigation, arbitration or other legal or
quasi-legal proceeding, nor do they require the Servicer to advance or
expend fees or sums of money in addition to those specifically set
forth in this Agreement.
3. The definition of "Eligible Investments" in Section 1 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
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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 either 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. 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.
4. A new definition of "Xxxxxx Mae" is hereby added to Section 1 to
immediately follow the definition of "GAAP," to read as follows:
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Xxxxxx Xxx: The Government National Mortgage Association, or any
successor thereto.
5. The definition of "Mortgage Loan" in Section 1 is hereby amended in its
entirety to read as follows:
Mortgage Loan: An individual servicing retained Mortgage Loan which
has been purchased from the Servicer by Xxxxxx Brothers Bank, FSB and
is subject to this Agreement, being identified on the Mortgage Loan
Schedule to this Agreement, which Mortgage Loan includes without
limitation the Mortgage Loan documents, the Monthly Reports, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits,
proceeds and obligations arising from or in connection with such
Mortgage Loan.
6. The definition of "Mortgage Loan Schedule" in Section 1 is hereby amended
in its entirety to read as follows:
Mortgage Loan Schedule: The schedule of Mortgage Loans setting forth
certain information with respect to the Mortgage Loans which were
purchased from the Servicer by Xxxxxx Brothers Bank, FSB, which
Mortgage Loan Schedule is attached as Exhibit D to this Agreement.
7. The definition of "Opinion of Counsel" in Section 1 is hereby amended by
adding the following proviso at the end of such definition:
provided that any Opinion of Counsel relating to (a) qualification of
the Mortgage Loans in a REMIC or (b) compliance with the REMIC
Provisions, must be an opinion of counsel who (i) is in fact
independent of the Servicer and the Master Servicer of the Mortgage
Loans, (ii) does not have any material direct or indirect financial
interest in the Servicer or the Master Servicer of the Mortgage Loans
or in an affiliate of either and (iii) is not connected with the
Servicer or the Master Servicer of the Mortgage Loans as an officer,
employee, director or person performing similar functions.
8. The definition of "P&I Advance" in Section 1 is hereby deleted in its
entirety and the definition of Monthly Advance is added to read as follows
and moved in Section 1 to immediately follow the definition of "LTV" and
all references to "P&I Advance" shall be replaced with "Monthly Advance":
Monthly Advance: With respect to each Remittance Date and each
Mortgage Loan, an amount equal to the Monthly Payment (with the
interest portion of such Monthly Payment adjusted to the Mortgage Loan
Remittance Rate) that was due on the Mortgage Loan on the Due Date in
the related Due Period, and that (i) was delinquent at the close of
business on the related Determination Date and (ii) was not the
subject of a previous Monthly Advance, but only to the extent that
such amount is expected, in the reasonable judgment of the Servicer,
to be recoverable from collections or other recoveries in respect of
such Mortgage Loan. To the extent that the Servicer determines that
any such amount is not recoverable from collections or other
recoveries in respect of such Mortgage Loan, such determination shall
be evidenced by a certificate of a Servicing Officer delivered to the
Master Servicer setting forth such determination.
9. A new definition of "Prepayment Interest Shortfall Amount" is hereby added
to Section 1 to
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immediately follow the definition of "Person," to read as follows:
Prepayment Interest Shortfall Amount: With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full during any Due
Period, which Principal Prepayment was applied to such Mortgage Loan
prior to such Mortgage Loan's Due Date in such Due Period, the amount
of interest (net of the related Servicing Fee for Principal
Prepayments in full) that would have accrued on the amount of such
Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and
ending on the day immediately preceding such Due Date, inclusive; such
amount of interest shall not exceed the amount of the related
Servicing Fee.
10. The definition of "Principal Prepayment" is hereby amended and restated to
read as follows:
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date,
including any prepayment charge or premium thereon, and which is not
accompanied by an amount of interest representing scheduled interest
due on any date or dates in any month or months subsequent to the
month of prepayment.
11. A new definition of "Principal Prepayment Period" is hereby added to
Section 1 to immediately follow the definition of "Principal Prepayment,"
to read as follows:
Principal Prepayment Period: The month preceding the month in which
the related Remittance Date occurs.
12. The definition of "Qualified Depository" is hereby amended and restated 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, FSB, a federal savings bank.
13. A new definition of "Qualified GIC" is hereby added to Section 1 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;
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(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.
14. A new definition of "Rating Agency" is hereby added to Section 1 to
immediately follow the definition of "Qualified GIC," to read as follows:
Rating Agency: Any of Fitch Ratings, Xxxxx'x Investors Service, Inc.
or Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
or any successor of the foregoing.
15. The definition of "Servicing Fee" in Section 1 is hereby amended in its
entirety to read as follows:
Servicing Fee: An amount equal to one-twelfth the product of (a) the
Servicing Fee Rate and (b) the outstanding principal balance of the
Mortgage Loan. The Servicing Fee is payable solely from the interest
portion (including recoveries with respect to interest from
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds) of such Monthly Payment collected by the
Servicer or as otherwise provided under this Agreement.
16. The parties acknowledge that Section 2 shall be inapplicable to this
Agreement.
17. The parties acknowledge that the provisions of Section 3 are superseded by
Exhibit D attached hereto.
18. The parties acknowledge that Section 4 shall be inapplicable to this
Agreement.
19. The parties acknowledge that Section 5 shall be inapplicable to this
Agreement.
20. The parties hereto acknowledge that Section 6 (Delivery of Mortgage Loan
Documents) of the MLSSA shall be superseded by the provisions of the
Custodial Agreement.
21. Subsection 7.03 (Remedies for Breach of Representations and Warranties) is
hereby amended in its entirety to read as follows:
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It is understood and agreed that the representations and
warranties set forth in Subsection 7.02 shall survive the engagement
of the Servicer to perform the servicing responsibilities hereunder
and the delivery of the Servicing Files to the Servicer and shall
inure to the benefit of the Trustee, the Trust Fund and the Master
Servicer. Upon discovery by either the Servicer, 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
Servicer 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 Servicer of any breach of a representation or warranty set forth
in Subsection 7.02 which materially and adversely affects the ability
of the Servicer 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 Servicer shall use its best
efforts promptly to cure such breach in all material respects and, if
such breach cannot be cured, the Servicer shall, at the Master
Servicer's option, assign the Servicer's rights and obligations under
this Agreement (or respecting the affected Loans) to a successor
Servicer selected by the Master Servicer. Such assignment shall be
made in accordance with Subsection 14.03.
In addition, the Servicer 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 Servicer's representations and warranties contained in this
Agreement. It is understood and agreed that the remedies set forth in
this Subsection 7.03 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 Servicer relating to or arising
out of the breach of any representations and warranties made in
Subsection 7.02 shall accrue upon (i) discovery of such breach by the
Servicer or notice thereof by the Trustee or Master Servicer to the
Servicer, (ii) failure by the Servicer to cure such breach within the
applicable cure period, and (iii) demand upon the Servicer by the
Trustee or the Master Servicer for compliance with this Agreement.
22. The parties acknowledge that Section 8 shall be inapplicable to this
Agreement.
23. The parties acknowledge that Section 9 shall be inapplicable to this
Agreement.
24. The parties acknowledge that Section 10 shall be inapplicable to this
Agreement.
25. Subsection 11.01 (Servicer to Act as Servicer; Subservicing) is hereby
amended as follows:
(i) by deleting the fifth paragraph of such subsection and replacing
it with the following:
Consistent with the terms of this Agreement, the Servicer may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of any such term or
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in any manner grant indulgence to any Mortgagor if in the Servicer's
reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Master
Servicer, the Trustee or the Trust, provided, however, that unless the
Mortgagor is in default with respect to the Mortgage Loan or such
default is, in the judgment of the Servicer, imminent, the Servicer
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 fifth paragraph of such
subsection:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer shall
forward to the Master Servicer copies of any documents evidencing such
assumption, modification, consolidation or extension. Notwithstanding
anything to the contrary contained in this Agreement, the Servicer
shall not make or permit any modification, waiver or amendment of any
term of any Mortgage Loan that would cause any REMIC created under the
Trust Agreement to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d) of the
Code.
26. Subsection 11.03 (Collection of Mortgage Loan Payments) is hereby amended
by replacing the words "Continuously from the date hereof until the
principal and interest on all Mortgage Loans are paid in full" in the first
and second lines thereof to "Continuously from the Closing Date until the
date the Mortgage Loans cease to be subject to this Agreement".
27. Subsection 11.04 (Establishment of Custodial Account; Deposits in Custodial
Account) is hereby amended as follows:
(a) the words "Bank of America, National Association, in trust for
Xxxxxx Brothers Bank, FSB as Purchaser of Mortgage Loans and
various Mortgagors" in the fourth and fifth lines of the first
paragraph shall be replaced by the following words: "Bank of
America, National Association in trust for the LXS 2006-10N Trust
Fund";
(b) by amending clause (i) to read as follows:
(i) the amount of any Prepayment Interest Shortfall Amount paid
out of the Servicer's own funds without any right to
reimbursement therefor;
28. Subsection 11.05 (Withdrawals From the Custodial Account) is hereby amended
as follows:
(a) by replacing the last four lines of clause (c) with the
following:
(c) Servicer's right thereto shall be prior to the rights of the
Trust Fund; provided however, that in the event that the
Servicer 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 Servicer may reimburse itself for such amounts from the
Custodial Account, it being
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understood, in the case of any such reimbursement, that the
Servicer's right thereto shall be prior to the rights of the
Trust Fund;
(b) by deleting the word "and" at the end of clause (h), by replacing
the period at the end of clause (i) with a semicolon and by
adding the following new clauses (j) and (k):
(j) to invest funds in the Custodial Account in Eligible
Investments in accordance with Subsection 11.04; and
(k) to transfer funds to another Qualified Depository in
accordance with Subsection 11.09 hereof.
29. Subsection 11.06 (Establishment of Escrow Account; Deposits in Escrow
Account) shall be amended by deleting the words "Bank of America, National
Association, in trust for Xxxxxx Brothers Bank, FSB as Purchaser of
Mortgage Loans and various Mortgagors" in the fourth and fifth lines of the
first paragraph, and replacing them with the following words:
"Bank of America, National Association, in trust for the LXS
2006-10N Trust Fund";
30. Subsection 11.13 (Title, Management and Disposition of REO Property) is
hereby amended (i) by adding two new paragraphs after the second 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
Servicer 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 Servicer 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 Servicer has received such an extension (and
provided a copy of the same to the Trustee and the Master Servicer),
then the Servicer 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 Servicer has
not received such an extension and the Servicer 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
Servicer has received such an extension, and the Servicer is unable to
sell the REO Property within the period ending three months before the
close of the Extended Period, the Servicer 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 Servicer) 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 Servicer
which would enable the Servicer, 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
A-8
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 Servicer has agreed to indemnify and hold harmless the
Trust Fund with respect to the imposition of any such taxes;
(ii) by replacing the word "advances" in the tenth line of the
existing third paragraph thereof with "Monthly Advances"; and
(iii) by adding the following to the end of such Subsection:
Prior to acceptance by the Servicer of an offer to sell any REO
Property, the Servicer shall notify the Master Servicer of such offer
in writing which notification shall set forth all material terms of
said offer (each a "Notice of Sale"). The Master Servicer shall be
deemed to have approved the sale of any REO Property unless the Master
Servicer notifies the Servicer in writing, within five (5) days after
its receipt of the related Notice of Sale, that it disapproves of the
related sale, in which case the Servicer shall not proceed with such
sale.
31. Subsection 11.15 (Distributions) is hereby amended by adding the following
after the second paragraph of such Subsection:
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: LXS 2006-10N
32. Subsection 11.16 (Statements to the Purchaser) is hereby amended in its
entirety to read as follows:
Subsection 11.16 Statements to the 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 11.04 and 11.06 within 30 days of the
Closing Date.
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 Servicer shall furnish to the Master Servicer (a) a monthly
remittance advice in the format set forth in Exhibit E-1 hereto and a
monthly defaulted loan report in the format set forth in Exhibit E-2
hereto (or in such other format mutually agreed between the Servicer
and the Master Servicer) relating to the period ending on the last day
of the preceding calendar month, (b) all such
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information required pursuant to clause (a) above on a magnetic tape
or other similar media reasonably acceptable to the Master Servicer,
(c) on a current and cumulative basis the amount of any (i) claims
filed, (ii) claims payments made, (iii) claims denied, (iv) policies
cancelled with respect to those Serviced Mortgage Loans covered by any
PMI Policy and (v) all such other information reasonably required by
the Master Servicer and (d) the amount of any Monthly Advances made by
the Servicer on such Monthly Remittance Date.
Beginning with the calendar year 2007, the Servicer shall prepare
and file any and all tax returns, information statements or other
filings for the portion of the tax year 2006 and the portion of
subsequent tax years for which the Servicer has serviced some or all
of the Mortgage Loans hereunder as such returns, information
statements or other filings are required to be delivered to any
governmental taxing authority or to the Master Servicer pursuant to
any applicable law with respect to the Mortgage Loans and the
transactions contemplated hereby. In addition, the Servicer shall
provide the Master Servicer with such information concerning the
Mortgage Loans as is necessary for the Master Servicer to prepare the
Trust Fund's federal income tax return as the Master Servicer may
reasonably request from time to time.
33. Subsection 12.01 (Indemnification; Third Party Claims) is hereby amended
and restated in its entirety to read as follows:
The Servicer shall indemnify Xxxxxx Brothers Holdings, 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
Servicer to perform its duties and service the Mortgage Loans in
compliance with the terms of this Agreement. The Servicer immediately
shall notify Xxxxxx Brothers Holdings, 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 Servicer shall follow any written
instructions received from the Trustee in connection with such claim.
The Servicer shall provide the Trustee with a written report of all
expenses and advances incurred by the Servicer pursuant to this
Subsection 12.01, and the Trustee from the assets of the Trust Fund
promptly shall reimburse the Servicer for all amounts advanced by it
pursuant to the preceding sentence except when the claim is in any way
related to the failure of the Servicer to service and administer the
Mortgage Loans in compliance with the terms of this Agreement or the
gross negligence, bad faith or willful misconduct of this Servicer.
34. Subsection 12.04 (Seller and Servicer Not to Resign) is hereby amended and
restated in its entirety to read as follows:
Subsection 12.04 Limitation on Resignation and Assignment by Servicer
The Servicer shall neither assign this Agreement or the servicing
hereunder or delegate its rights or duties hereunder or any portion
hereof (to other than a third party in
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the case of outsourcing routine tasks such as taxes, insurance and
property inspection, in which case the Servicer shall be fully liable
for such tasks as if the Servicer performed them itself) or sell or
otherwise dispose of all or substantially all of its property or
assets without the prior written consent of the Trustee and the Master
Servicer, which consent shall be granted or withheld in the reasonable
discretion of such parties, provided, however, that the Servicer may
assign its rights and obligations hereunder without prior written
consent of the Trustee and the Master Servicer to any entity that is
directly owned or controlled by the Servicer, and the Servicer
guarantees the performance of such entity hereunder. In the event of
such assignment by the Servicer, the Servicer shall provide the
Trustee and the Master Servicer with a written statement guaranteeing
the successor entity's performance of the Servicer's obligations under
the Agreement.
35. Subsection 13.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master Servicer"
(b) adding the words "within the applicable cure period" after the
word "remedied" in the second line of the second paragraph; and
(c) amending subclause (g) to read as follows: "the Servicer 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 Servicer under this Agreement and replaced the
Servicer with a Xxxxxx Mae or Xxxxxxx Mac approved servicer
within 30 days of the absence of such approval;".
36. Subsection 13.02 (Waiver of Default) is hereby amended by changing the
reference to "Purchaser" in such Subsection to "Master Servicer with the
prior written consent of the Trustee".
37. Subsection 14.01 (Termination) is hereby amended by changing the word
"Purchaser" to "Xxxxxx Brothers Holdings."
38. Subsection 14.02 (Termination of the Servicer Without Cause) is hereby
amended by replacing the first reference to "Purchaser" with "Xxxxxx
Brothers Holdings (with the prior consent of the Trustee)" and by replacing
all other references to "Purchaser" with "Xxxxxx Brothers Holdings."
39. Subsection 14.03 (Successors to the Servicer) is hereby amended in its
entirety to read as follows:
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement pursuant to
Subsections 12.04, 13.01, 14.01 or 14.02, the Master Servicer shall,
in accordance with the provisions of the Trust Agreement (i) succeed
to and assume all of the Servicer'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 Servicer under this Agreement with the
termination of the Servicer's responsibilities, duties and liabilities
under this Agreement. Any successor to the Servicer 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, Xxxxxx Brothers
Holdings, 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
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then-current rating of any of the Certificates. In connection with
such appointment and assumption, the Master Servicer or Xxxxxx
Brothers Holdings, 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 Servicer under
this Agreement. In the event that the Servicer's duties,
responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned Subsections, the Servicer
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 Servicer pursuant to the aforementioned Subsections shall not
become effective until a successor shall be appointed pursuant to this
Subsection 14.03 and shall in no event relieve the Servicer of the
representations and warranties made pursuant to Section 7 and the
remedies available to the Trust Fund under Subsection 7.03 shall be
applicable to the Servicer notwithstanding any such resignation or
termination of the Servicer, or the termination of this Agreement.
Within a reasonable period of time, but in no event longer than
30 days of the appointment of a successor entity, the Servicer 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 Servicer shall cooperate with the Trustee and the
Master Servicer, as applicable, and such successor in effecting the
termination of the Servicer'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 Servicer to the Custodial 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 Servicer and the Master
Servicer an instrument (i) 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 Servicer under this Agreement, whereupon such
successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer,
with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Servicer or termination of this
Agreement pursuant to Subsections 12.04, 13.01, 14.01 or 14.02 shall
not affect any claims that the Master Servicer or the Trustee may have
against the Servicer arising out of the Servicer's actions or failure
to act prior to any such termination or resignation.
The Servicer shall deliver within three (3) Business Days of the
appointment of a successor Servicer the funds in the 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 Servicer 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 Servicer.
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Upon a successor's acceptance of appointment as such, the
Servicer 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 Servicer or resignation of the Servicer 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 Servicer 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.
40. The parties acknowledge that Section 22 shall be inapplicable to this
Agreement.
41. Section 25 (Amendment) is hereby amended by replacing the words "by the
Purchaser, the Seller and the Servicer by written agreement signed by the
parties hereto" with the words "by written agreement by the Servicer and
Xxxxxx Brothers Holdings, with the written consent of the Master Servicer,
the NIMS Insurer and the Trustee".
42. Section 29 (Successors and Assigns) is hereby deleted in its entirety.
43. Section 30 (Non-Solicitation) is hereby amended by replacing the words "the
Purchaser" with "Xxxxxx Brothers Holdings" in each instance.
44. A new Section 32 (Intended Third Party Beneficiaries) is hereby added below
Section 31 to read as follows:
Intended Third Party Beneficiaries. Notwithstanding any provision
herein to the contrary, the parties to this Agreement agree that it is
appropriate, in furtherance of the intent of such parties as set forth
herein, that the Master Servicer and the Trustee receive the benefit
of the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions. The
Servicer shall have the same obligations to the Master Servicer and
the Trustee as if they were parties to this Agreement, and the Master
Servicer and the Trustee shall have the same rights and remedies to
enforce the provisions of this Agreement as if they were parties to
this Agreement. The Servicer shall only take direction from the Master
Servicer (if direction by the Master Servicer is required under this
Agreement) unless otherwise directed by this Agreement.
Notwithstanding the foregoing, all rights and obligations of the
Master Servicer and the Trustee hereunder (other than the right to
indemnification) shall terminate upon termination of the Trust
Agreement and of the Trust Fund pursuant to the Trust Agreement.
45. Section 2.03 of the Regulation AB Addendum (Information to Be Provided by
the Company) is hereby amended as follows:
(a) (g) by replacing the words "identified to the company by the
Purchaser or any Depositor in writing in advance of such
Securitization Transaction" in Section 2.03(a)(D) with the words
"identified on Exhibit F hereto";
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(b) by replacing the words "the Purchaser or any Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in
each instance;
(c) by replacing the words "the Purchaser and such Depositor" with
"the Trust Fund, the Depositor, the Trustee and the Master
Servicer" in each instance;
(d) by replacing the words "the Purchaser and any Depositor" with
"the Trust Fund, the Depositor, the Trustee and the Master
Servicer" in each instance;
(e) by replacing the words "the Purchaser or Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in
each instance;
(f) by replacing the words "the Purchaser or the Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in
each instance; and
(g) by replacing the words "the Purchaser or such Depositor" with
"the Trust Fund, the Depositor, the Trustee or the Master
Servicer" in each instance.
46. Section 2.04 of the Regulation AB Addendum (Servicer Compliance Statement)
is hereby amended by replacing the words "the Purchaser and any Depositor"
and the words "the Purchaser and such Depositor" with "the Trust Fund, the
Depositor, the Trustee and the Master Servicer" in each instance.
47. Section 2.05 of the Regulation AB Addendum (Report on Assessment of
Compliance and Attestation) is hereby amended as follows:
(a) by replacing the words "each of the Servicing Criteria specified
on Exhibit B hereto" with "all of the Servicing Criteria
specified on Exhibit B hereto;"
(b) by replacing the words "the Purchaser and any Depositor" with
"the Trust Fund, the Depositor, the Trustee and the Master
Servicer" in each instance;
(c) by replacing the words "the Purchaser and such Depositor" with
"the Trust Fund, the Depositor, the Trustee and the Master
Servicer" in each instance;
(d) by replacing the words "the Purchaser, any Depositor" with "the
Trust Fund, the Depositor, the Trustee, the Master Servicer" in
each instance; and
(e) by replacing the words "the Purchaser" with "the Trust Fund, the
Depositor, the Trustee and the Master Servicer" in Section
2.05(b).
48. Section 2.06 of the Regulation AB Addendum (Use of Subservicers and
Subcontractors) is hereby amended as follows:
(a) by replacing the words "the Purchaser or any Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in
each instance;
(b) by replacing the words "the Purchaser and any Depositor" with
"the Trust Fund, the Depositor, the Trustee and the Master
Servicer" in each instance; and
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(c) by replacing the words "the Purchaser and such Depositor" with
"the Trust Fund, the Depositor, the Trustee and the Master
Servicer" in each instance.
49. Section 2.07 of the Regulation AB Addendum (Indemnification; Remedies) is
hereby amended as follows:
(a) subparagraph (a) of such section is hereby amended by (1)
replacing the words "the Purchaser, each affiliate of the
Purchaser" with "the Trust Fund, the Depositor, the Trustee, the
Master Servicer" (2) deleting the words "or the Depositor" and
(3) deleting the words "and of the Depositor";
(b) subparagraph (b)(iii) of such section is hereby amended by (1)
replacing the words "the Purchaser (or any designee of the
Purchaser, such as a master servicer) and any Depositor" with
"the Trust Fund, the Depositor, the Trustee and the Master
Servicer" and (2) replacing the words "the Purchaser (or such
designee) or such Depositor" with "such party";
(c) by replacing the words "the Purchaser, any Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in
each instance;
(d) by replacing the words "the Purchaser or Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in
each instance; and
(e) by replacing the words "the Purchaser or any Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in
each instance.
X-00
XXXXXXX X-0
Mortgage Loan Sale and Servicing Agreement (dated February 1, 2006)
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 Number two decimals
BEGINNING TRAIL BALANCE FOR ACTUAL/ACTUAL,
REQUIRED
SCHEDPRIN SCHEDULED PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED Number two decimals
ACTUAL PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
REQUIRED, .00 IF NO COLLECTIONS
CURT1 CURTAILMENT 1 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT1DATE CURTAILMENT 1 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT1ADJ CURTAILMENT 1 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
CURT2 CURTAILMENT 2 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT2DATE CURTAILMENT 2 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT2ADJ CURTAILMENT 2 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
LIQPRIN PAYOFF, LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
OTHPRIN OTHER PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
PRINREMIT TOTAL PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
INTREMIT NET INTEREST REMIT, INCLUDE PAYOFF INTEREST, Number two decimals
.00 IF NOT APPLICABLE
TOTREMIT TOTAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
ENDSCHEDBAL ENDING SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED Number two decimals
ENDING TRIAL BALANCE FOR ACTUAL/ACTUAL
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDACTBAL ENDING TRIAL BALANCE Number two decimals
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDDUEDATE ENDING ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT DD-MMM-YY
ACTCODE 60 IF PAIDOFF, BLANK IF NOT APPLICABLE Number no decimals
ACTDATE ACTUAL PAYOFF DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
INTRATE INTEREST RATE, REQUIRED Number seven decimals
E-1-1
Example .0700000 for 7.00%
SFRATE SERVICE FEE RATE, REQUIRED Number seven decimals
Example .0025000 for .25%
PTRATE PASS THRU RATE, REQUIRED Number seven decimals
Example .0675000 for 6.75%
PIPMT P&I CONSTANT, REQUIRED Number two decimals
E-1-2
EXHIBIT E-2
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
DATA FIELD FORMAT DATA DESCRIPTION
----------------------- ----------------------------------------------- ------------------------------------
% of MI coverage NUMBER(6, 5) The percent of coverage provided by
the PMI company in the event of loss
on a defaulted loan.
Actual MI claim filed DATE(MM/DD/YYYY) Actual date that the claim was
date submitted to the PMI company.
Actual bankruptcy start DATE(MM/DD/YYYY) Actual date that the bankruptcy
date petition is filed with the court.
Actual MI claim amount NUMBER(15, 2) The amount of the claim that was
filed filed by the servicer with the PMI
company.
Actual discharge date DATE(MM/DD/YYYY) Actual date that the Discharge Order
is entered in the bankruptcy docket.
Actual due date DATE(MM/DD/YYYY) Actual due date of the next
outstanding payment amount due from
the mortgagor.
Actual eviction DATE(MM/DD/YYYY) Actual date that the eviction
complete date proceedings are completed by local
counsel.
Actual eviction start DATE(MM/DD/YYYY) Actual date that the eviction
date proceedings are commenced by local
counsel.
Actual first legal date DATE(MM/DD/YYYY) Actual date that foreclosure counsel
filed the first legal action as
defined by state statute.
Actual redemption end DATE(MM/DD/YYYY) Actual date that the foreclosure
date redemption period expires.
Bankruptcy chapter VARCHAR2(2) 7= Chapter 7 filed Chapter of bankruptcy filed.
11= Chapter 11 filed
12= Chapter 12 filed
13= Chapter 13 filed
Bankruptcy flag VARCHAR2(2) Y=Active Bankruptcy Servicer defined indicator that
N=No Active Bankruptcy identifies that the property is an
asset in an active bankruptcy case.
Bankruptcy Case Number VARCHAR2(15) The court assigned case number of
the bankruptcy filed by a party with
interest in the property.
MI claim amount paid NUMBER(15, 2) The amount paid to the servicer by
the PMI company as a result of
submitting an MI claim.
MI claim funds received DATE(MM/DD/YYYY) Actual date that funds were received
date from the PMI company as a result of
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transmitting an MI claim.
Current loan amount NUMBER(10, 2) Current unpaid principal balance of
the loan as of the date of reporting
to Aurora Master Servicing.
Date FC sale scheduled DATE(MM/DD/YYYY) Date that the foreclosure sale is
scheduled to be held.
Date relief/dismissal DATE(MM/DD/YYYY) Actual date that the dismissal or
granted relief from stay order is entered by
the bankruptcy court.
Date REO offer accepted DATE(MM/DD/YYYY) Actual date of acceptance of an REO
offer.
Date REO offer received DATE(MM/DD/YYYY) Actual date of receipt of an REO
offer.
Delinquency value NUMBER(10, 2) Value obtained typically from a BPO
prior to foreclosure referral not
related to loss mitigation activity.
Delinquency value VARCHAR2(15) BPO= Broker's Price Opinion Name of vendor or management company
source Appraisal=Appraisal that provided the delinquency
valuation amount.
Delinquency value date DATE(MM/DD/YYYY) Date that the delinquency valuation
amount was completed by vendor or
property management company.
Delinquency flag VARCHAR2(2) Y= 90+ delinq. Not in FC, Bky Servicer defined indicator that
or Loss mit identifies that the loan is
N=Less than 90 days delinquent delinquent but is not involved in
loss mitigation, foreclosure,
bankruptcy or REO.
Foreclosure flag VARCHAR2(2) Y=Active foreclosure Servicer defined indicator that
N=No active foreclosure identifies that the loan is involved
in foreclosure proceedings.
Corporate expense NUMBER(10, 2) Total of all cumulative expenses
balance 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 DATE(MM/DD/YYYY) Actual date that the loan was
referral date referred to local counsel to begin
foreclosure proceedings.
Foreclosure valuation NUMBER(15, 2) Value obtained during the
amount foreclosure process. Usually as a
result of a BPO and typically used
to calculate the bid.
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Foreclosure valuation DATE(MM/DD/YYYY) Date that foreclosure valuation
date amount was completed by vendor or
property management company.
Foreclosure valuation VARCHAR2(80) BPO= Broker's Price Opinion Name of vendor or management company
source Appraisal=Appraisal that provided the foreclosure
valuation amount.
FHA 27011A transmitted DATE(MM/DD/YYYY) Actual date that the FHA 27011A
date claim was submitted to HUD.
FHA 27011 B transmitted DATE(MM/DD/YYYY) Actual date that the FHA 27011B
date claim was submitted to HUD.
VA LGC/ FHA Case number VARCHAR2(15) Number that is assigned individually
to the 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 DATE(MM/DD/YYYY) Actual date that funds were received
received date from HUD as a result of transmitting
the 27011A claim.
Foreclosure actual sale DATE(MM/DD/YYYY) Actual date that the foreclosure
date sale was held.
Servicer loan number VARCHAR2(15) Individual number that uniquely
identifies loan as defined by
servicer.
Loan type VARCHAR2(2) 1=FHA Residential Type of loan being serviced
2=VA Residential generally defined by the existence
3=Conventional w/o PMI of certain types of insurance. (ie:
4=Commercial FHA, VA, conventional insured,
5=FHA Project conventional uninsured, SBA, etc.)
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) The date determined that the
servicer and mortgagor agree to
pursue a defined loss mitigation
alternative.
Loss mit flag VARCHAR2(2) Y= Active loss mitigation Servicer defined indicator that
N=No active loss mitigation identifies that the loan is involved
in completing a loss mitigation
alternative.
Loss mit removal date DATE(MM/DD/YYYY) The date that the mortgagor is
denied loss mitigation alternatives
or the date that the loss mitigation
alternative is completed resulting
in a
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current or liquidated loan.
Loss mit type VARCHAR2(2) L= Loss Mitigation The defined loss mitigation
LT=Litigation pending alternative identified on the loss
NP=Pending non-performing sale mit approval date.
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) Value obtained typically from a BPO
prior to foreclosure sale intended
to aid in the completion of loss
mitigation activity.
Loss mit value date DATE(MM/DD/YYYY) Name of vendor or management company
that provided the loss mitigation
valuation amount.
Loss mit value source VARCHAR2(15) BPO= Broker's Price Opinion Date that the lost mitigation
Appraisal=Appraisal valuation amount was completed by
vendor or property management
company.
MI certificate number VARCHAR2(15) 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 NUMBER(7, 7) The current premium paid to the PMI
company for Lender Paid Mortgage
Insurance.
Occupancy status VARCHAR2(1) O=Owner occupied The most recent status of the
T=Tenant occupied property regarding who if anyone is
U=Unknown occupying the property. Typically a
V=Vacant result of a routine property
inspection.
First Vacancydate/ DATE(MM/DD/YYYY) The date that the most recent
Occupancy status date occupancy status was determined.
Typically the date of the most
recent property inspection.
Original loan amount NUMBER(10, 2) Amount of the contractual
obligations (ie: note and
mortgage/deed of trust).
Original value amount NUMBER(10, 2) Appraised value of property as of
origination typically determined
through the appraisal process.
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Origination date DATE(MM/DD/YYYY) Date that the contractual
obligations (ie: note and
mortgage/deed of trust) of the
mortgagor was executed.
FHA Part B funds DATE(MM/DD/YYYY) Actual date that funds were received
received date fro HUD as a result of transmitting
the 27011B claim.
Post petition due date DATE(MM/DD/YYYY) The post petition due date of a loan
involved in a chapter 13 bankruptcy.
Property condition VARCHAR2(2) 1= Excellent Physical condition of the property
2=Good as most recently reported to the
3=Average servicer by vendor or property
4=Fair management company.
5=Poor
6=Very poor
Property type VARCHAR2(2) 1=Single family Type of property secured by mortgage
2=Town house such as: single family, 2-4 unit,
3=Condo 4=Multifamily etc.
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 Cause of delinquency as identified
02=Illness of principal mtgr by mortgagor.
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
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REO repaired value NUMBER(10, 2) 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 NUMBER(15, 2) The most recent listing/pricing
adjustment amount amount as updated by the servicer
for REO properties.
REO list price DATE(MM/DD/YYYY) The most recent date that the
adjustment date servicer advised the agent to make
an adjustment to the REO listing
price.
REO value (as is) NUMBER(10, 2) The value of the property without
making any repairs as determined by
the vendor/property management
company.
REO actual closing date DATE(MM/DD/YYYY) The actual date that the sale of the
REO property closed escrow.
REO flag VARCHAR2(7) Y=Active REO Servicer defined indicator that
N=No active REO identifies that the property is now
Real Estate Owned.
REO original list date DATE(MM/DD/YYYY) The initial/first date that the
property was listed with an agent as
an REO.
REO original list price NUMBER(15, 2) The initial/first price that was
used to list the property with an
agent as an REO.
REO net sales proceeds NUMBER(10, 2) The actual REO sales price less
closing costs paid. The net sales
proceeds are identified within the
HUD1 settlement statement.
REO sales price NUMBER(10, 2) Actual sales price agreed upon by
both the purchaser and servicer as
documented on the HUD1 settlement
statement.
REO scheduled close DATE(MM/DD/YYYY) The date that the sale of the REO
date property is scheduled to close
escrow.
REO value date DATE(MM/DD/YYYY) Date that the vendor or management
company completed the valuation of
the property resulting in the REO
value (as is).
REO value source VARCHAR2(15) BPO= Broker's Price Opinion Name of vendor or management company
Appraisal=Appraisal that provided the REO value (as is).
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Repay first due date DATE(MM/DD/YYYY) 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 DATE(MM/DD/YYYY) The due date of the next outstanding
payment due under a forbearance or
repayment plan agreed to by both the
mortgagor and servicer.
Repay plan broken/ DATE(MM/DD/YYYY) The servicer defined date upon which
reinstated/closed date the servicer considers that the plan
is no longer in 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 balance that 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
received date approval was received as set forth
in the HUD title approval letter.
Title package HUD/VA DATE(MM/DD/YYYY) The actual date that the title
date package was submitted to either HUD
or VA.
VA claim funds received DATE(MM/DD/YYYY) The actual date that funds were
date received by 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
amount servicer from VA as a result of the
specified bid.
VA first funds received DATE(MM/DD/YYYY) The date that the funds from the
date specified bid were received by the
servicer from the VA.
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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.
FNMA Delinquency status VARCHAR2(3) 09=Forbearance The code that is electronically
code 17=Preforeclosure sale reported to FNMA by the servicer
24=Drug seizure 26=Refinance that reflects the current defaulted
27=Assumption status of a loan. (ie: 65, 67, 43 or
28=Modification 29=Charge-off 44)
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 VARCHAR2(3) 001=Death of principal mtgr The code that is electronically
reason code 002=Illness of principal mtgr reported to FNMA by the servicer
003=Illness of mtgr's family that describes the circumstance that
member appears to be the primary
004=Death of mtgr's family member contributing factor to the
005=Marital difficulties delinquency.
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) Money submitted to the servicer,
credited to the mortgagor's account
but not allocated to principal,
interest, escrow, etc.
Restricted escrow NUMBER(10, 2) Money held in escrow by the mortgage
balance company through completion of
repairs to property.
Investor number NUMBER (10, 2) Unique number assigned to a group of
loans in the servicing system.
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EXHIBIT F
TRANSACTION PARTIES
Trustee: U.S. Bank National Association
Securities Administrator: N/A
Master Servicer: Aurora Loan Services LLC
Credit Risk Manager: N/A
PMI Insurer: N/A
Interest Rate Swap Counterparty: N/A
Interest Rate Cap Counterparty: Xxxxxx Brothers Special Financing Inc.
Servicers: Aurora Loan Services LLC, Bank of America, National Association,
Countrywide Home Loans Servicing LP, GMAC Mortgage Corporation, IndyMac Bank,
F.S.B, SunTrust Mortgage, Inc. and Xxxxx Fargo Bank, N.A.
Originators: Aurora Loan Services LLC, Bank of America, National Association,
Countrywide Home Loans, Inc., GMAC Mortgage Corporation, IndyMac Bank, F.S.B,
SunTrust Mortgage, Inc. and Xxxxx Fargo Bank, N.A.
Custodian: 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
