EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"),
entered into as of the 1st day of January, 2006, 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 (the "Trustee"), recites and
provides as follows:
RECITALS
WHEREAS, Xxxxxx Capital, a division of Xxxxxx Brothers
Holdings Inc., acquired certain fixed and adjustable rate, conventional, first
lien, residential mortgage loans from the Servicer pursuant to the Seller's
Warranties and Servicing Agreement between the Bank 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, pursuant to an Assignment and Assumption Agreement,
dated January 1, 2006 (the "Assignment and Assumption Agreement") annexed as
Exhibit C hereto, the Seller acquired from Xxxxxx Brothers Bank, FSB (the
"Bank") all of the Bank's right, title and interest in and to the mortgage loans
currently serviced under the SWSA and assumed for the benefit of each of the
Servicer and the Bank the rights and obligations of the Bank as owner of such
mortgage loans pursuant to the SWSA.
WHEREAS, the Seller has conveyed the mortgage loans identified
on Exhibit D hereto (the "Serviced Mortgage Loans") to Structured Asset
Securities Corporation, a Delaware special purpose corporation ("SASCO"), which
in turn has conveyed the Serviced Mortgage Loans to the Trustee, pursuant to a
trust agreement, dated as of January 1, 2006 (the "Trust Agreement"), among the
Trustee, Aurora, as master servicer ("Aurora," and, together with any successor
master servicer appointed pursuant to the provisions of the Trust Agreement, the
"Master Servicer") and SASCO.
WHEREAS, the Serviced Mortgage Loans are currently being
serviced by the Servicer pursuant to the SWSA.
WHEREAS, the Seller desires that the Servicer continue to
service the Serviced Mortgage Loans, and the Servicer has agreed to do so,
subject to the rights of the Seller and the Master Servicer to terminate the
rights and obligations of the Servicer hereunder as set forth herein and to the
other conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions
of the SWSA shall apply to the Serviced Mortgage Loans, but only to the extent
provided herein and that this Agreement shall govern the Serviced Mortgage Loans
for so long as such Serviced Mortgage Loans remain subject to the provisions of
the Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer
shall be obligated, among other things, to supervise the servicing of the
Serviced Mortgage Loans on behalf of the Trustee, and shall have the right,
under certain circumstances, to terminate the rights and obligations of the
Servicer under this Agreement.
WHEREAS, the Seller and the Servicer intend that each of the
Master Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Seller and the Servicer
hereby agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the SWSA
incorporated by reference herein (regardless of whether such terms are defined
in the SWSA), shall have the meanings ascribed to such terms in the Trust
Agreement.
2. Custodianship. The parties hereto acknowledge that Deutsche Bank
National Trust Company will act as custodian of the Servicing Files for the
Trustee pursuant to a Custodial Agreement, dated January 1, 2006, 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 February 20,
2006 to the Trust Fund is to include principal due after January 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), (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 2006-2N 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
hereby restated as of the date 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 shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer
under this Agreement shall be delivered to the Master Servicer at the following
address:
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Attn: E. Xxxx Xxxxxxxxxx - Master Servicing
LXS 2006-2N
Tel: 000-000-0000
All remittances required to be made to the Master Servicer
under this Agreement shall be made on a scheduled/scheduled basis to the
following wire account:
JPMorgan Chase Bank, N.A.
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services LLC,
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: LXS 2006-2N
All notices required to be delivered to the Trustee hereunder
shall be delivered to the Trustee at the following address:
U.S. Bank National Association
0 Xxxxxxx Xxxxxx
Xxxxxx, X.X. 00000
Attention: Corporate Trust Services
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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 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 X Certificates
issued by the Trust Fund.
11. Distressed Mortgage Loans. The NIMS Insurer may, at its option,
purchase a Distressed Mortgage Loan; provided, however, prior to any such
purchase, the Servicer shall be required to continue to make Monthly Advances
with respect to such Distressed Mortgage Loans, to the extent required by the
applicable servicing provisions in the SWSA. Any such purchase shall be
accomplished by: (A) remittance to the Master Servicer of the Purchase Price (as
defined in the Trust Agreement) for the Distressed Mortgage Loan for deposit
into the Collection Account established by the Master Servicer pursuant to the
Trust Agreement, and (B) the NIMS Insurer's (i) acknowledgment and agreement to
retain Servicer, as the servicer for any such purchased Distressed Mortgage
Loan, to service such Distressed Mortgage Loan pursuant to the provisions of the
SWSA, and (ii) assumption, for the benefit of the Servicer, the rights and
obligations of the Trust Fund as owner of such purchased Distressed Mortgage
Loans pursuant to the SWSA. The Trustee and the Servicer shall immediately
effectuate the conveyance of the purchased Distressed Mortgage Loans to the NIMS
Insurer exercising the purchase option, including prompt delivery of the
Servicing File and all related documentation to the applicable NIMS Insurer. A
Distressed Mortgage Loan is as of any Determination Date a Mortgage Loan that is
delinquent in payment for a period of ninety (90) days or more, without giving
effect to any grace period permitted by the related Mortgage Loan, or for which
the Servicer or Trustee has accepted a deed in lieu of foreclosure.
[SIGNATURE PAGES IMMEDIATELY FOLLOW]
Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
INDYMAC BANK, F.S.B.,
as Servicer
By: ________________________________
Name:
Title:
Acknowledged:
AURORA LOAN SERVICES LLC,
as Master Servicer
By: _____________________________________
Name: E. Xxxx Xxxxxxxxxx
Title Executive Vice President
U.S. BANK NATIONAL ASSOCIATION as Trustee
By: _____________________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the SWSA
1. Unless otherwise specified herein, any provisions of the SWSA,
including definitions, relating to (i) representations and warranties
relating to the Mortgage Loans and not relating to the servicing of the
Mortgage Loans, (ii) Mortgage Loan repurchase obligations, (iii) Whole
Loan and Pass-Through Transfers and Reconstitution, and (iv)
Assignments of Mortgage, shall be disregarded for purposes relating to
this Agreement.
2. The definition of "Determination Date" in Article I is hereby amended
and restated in its entirety to read as follows:
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.
3. The definition of "Eligible Investments" in Article I is hereby amended
and restated in its entirety to read as follows:
Eligible Investments: Any one or more of the obligations and
securities listed below which investment provides for a date
of maturity not later than the Determination Date in each
month:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by,
the United States of America or any agency or instrumentality
of the United States of America the obligations of which are
backed by the full faith and credit of the United States of
America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued
by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or
any agent of the Trustee, acting in its respective commercial
capacity) incorporated or organized under the laws of the
United States of America or any state thereof and subject to
supervision and examination by federal or state banking
authorities, so long as at the time of investment or the
contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company
or deposit institution, as the case may be) have been rated by
each Rating Agency in its highest short-term rating category
or one of its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by Xxxxxx Xxx, Xxxxxx Xxx
or Xxxxxxx Mac with any registered broker/dealer subject to
Securities Investors' Protection Corporation jurisdiction or
any commercial bank insured by the FDIC, if such broker/dealer
or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest
short-term rating category;
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. 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 definition of "Xxxxxx Xxx" is hereby added to Article I to
immediately follow the definition of "Xxxxxxx Mac," to read as follows:
Xxxxxx Xxx: The Government National Mortgage Association, or
any successor thereto.
5. The definition of "Mortgage Loan" is hereby amended and restated in its
entirety to read as follows:
A-2
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 Article I is hereby
amended and restated in its entirety to read as follows:
Mortgage Loan Schedule: The schedule of Mortgage Loans
attached as Exhibit C to this Agreement setting forth certain
information with respect to the Mortgage Loans purchased from
the Servicer by Xxxxxx Brothers Bank, FSB pursuant to the
Purchase Agreement.
7. The definition of "Qualified Depository" in Article I is hereby amended
and restated in its entirety to read as follows:
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.
8. A new definition of "Qualified GIC" is hereby added to Article I to
immediately follow the definition of "Qualified Depository", to read as
follows:
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Custodial Account
and insuring a minimum, fixed or floating rate of return on
investments of such funds, which contract or surety bond
shall:
(a) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating
Agency in one of its two highest rating categories or, if such
insurance company has no long-term debt, whose claims paying
ability is rated by each Rating Agency in one of its two
highest rating categories, and whose short-term debt is rated
by each Rating Agency in its highest rating category;
(b) provide that the Servicer may exercise all of the rights
under such contract or surety bond without the necessity of
taking any action by any other Person;
A-3
(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.
9. A new definition of "Realized Loss" is added to Article I immediately
following the definition of "Rating Agency" to read as follows:
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.
10. The definition of "Regulation AB" in Article I is hereby amended and
restated in its entirety to read as follows:
Regulation AB: Subpart 229.1100-Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.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.
11. The definition of "Servicing Fee Rate" in Article I is hereby amended
and restated in its entirety to read as follows:
Servicing Fee Rate: 0.375% per annum.
12. The parties acknowledge that the fourth paragraph of Section 2.02
(Books and Records; Transfers of Mortgage Loans) shall be inapplicable
to this Agreement.
13. The parties acknowledge that Section 2.03 (Delivery of Documents) shall
be superseded by the provisions of the Custodial Agreement.
14. 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".
15. Section 3.01(f) (Ability to Perform) is hereby amended by deleting the
second and third sentences thereof.
16. Section 3.01(h) (No Consent Required) is hereby amended by deleting the
words "or the sale of the Mortgage Loans".
A-4
17. 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.
18. A new Section 3.01(p) is hereby added to read as follows:
Additional Representations and Warranties of the Company.
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."
19. Four new paragraphs are hereby added at the end of Section 3.01
(Company Representations and Warranties) to read as follows:
It is understood and agreed that the representations and
warranties set forth in Section 3.01 (a) through (h) and (k)
are hereby restated as of the Closing Date and shall survive
the engagement of the Company to perform the servicing
responsibilities hereunder and the delivery of the Servicing
Files to the Company and shall inure to the benefit of the
Trustee, the Trust Fund and the Master Servicer. Upon
discovery by either the Company, the Master Servicer or the
Trustee of a breach of any of the foregoing representations
and warranties which materially and adversely affects the
ability of the Company to perform its duties and obligations
under this Agreement or otherwise materially and adversely
affects the value of the Mortgage Loans, the Mortgaged
Property or the priority of the security interest on such
Mortgaged Property or the interest of the Trustee or the Trust
Fund, the party discovering such breach shall give prompt
written notice to the other.
Within 60 days of the earlier of either discovery by or notice
to the Company of any breach of a representation or warranty
set forth in Section 3.01 which materially and adversely
affects the ability of the Company to perform its duties and
obligations under this Agreement or otherwise materially and
adversely affects the value of the Loans, the Mortgaged
Property or the priority of the security interest on such
Mortgaged Property, the Company shall use its best efforts
promptly to cure such breach in all material respects and, if
such breach cannot be cured, the Company shall, at the Master
Servicer's option, assign the Company's rights and obligations
under this Agreement (or respecting the affected 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.
A-5
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.
20. 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.
21. Section 4.04 (Establishment of and Deposits to Custodial Account) is
hereby amended as follows:
A-6
(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 2006-2N 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".
22. 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;
23. 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 2006-2N Trust Fund and various Mortgagors".
24. 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.
A-7
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:
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.
25. 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:
All remittances required to be made to the Master
Servicer shall be made to the following wire account or to
such other account as may be specified by the Master Servicer
from time to time:
JPMorgan Chase Bank, N.A.
New York, New York
ABA #: 000-000-000
Account Name: Aurora Loan Services LLC
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: Aurora Loan Services
LXS 2006-2N
26. 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.
A-8
(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 (ss. 229.1117) of Regulation AB and
(ii) if the Company shall become (but only to the extent not
previously disclosed to the NIMS Insurer, the Master Servicer
and the Depositor) at any time an affiliate of any of the
parties listed on Exhibit F to this Agreement.
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 3.01(p) 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.
27. 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, 2006, an Officer's Certificate in the form of
Exhibit E hereto, stating that".
28. Section 6.08 (Assessment of Servicing Compliance) is hereby amended by
replacing the words "The Company shall deliver to the Purchaser or its
designee on or before March 1st of each year, beginning March 1, 2007,
a report reasonably satisfactory to the Purchaser" at the beginning of
the first sentence thereto with the words "The Company shall deliver to
the Master Servicer, the Trustee and the Depositor on or before March
1st of each year, beginning March 1, 2007, and prior to the closing
date related to each Securitization Transfer, a report reasonably
satisfactory to the Master Servicer in the form of Exhibit G hereto".
A-9
29. 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.
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.
A-10
30. 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.
31. 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
A-11
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.
32. Section 10.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master
Servicer";
(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.
33. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer".
34. 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.
35. 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."
A-12
36. 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.
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.
A-13
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.
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.
37. 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.
38. Section 12.04 (Duration of Agreement) is hereby amended by deleting the
last sentence thereof.
39. Section 12.10 (Assignment by Purchaser) is hereby deleted in its
entirety.
40. Section 12.11 (No Personal Solicitation) is hereby amended by replacing
the words "the Purchaser" with "Xxxxxx Brothers Holdings" in each
instance.
41. 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.
A-14
42. 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.
[DEPOSITORY],
as Depository
By: ________________________________
Name: ______________________________
Title: _____________________________
43. 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 99.5]
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
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 2006-2N
------------------------------------------------------------------
Reference is made to the Reconstituted Servicing Agreement, dated as of January
1, 2006 (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 and affixed the seal
of the Servicer.
Dated: _______________________ By:______________________________
Name:____________________________
Title:___________________________
E-1
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: ABN AMRO Bank N.V.
Interest Rate Cap Counterparty: N/A
Servicers: Indymac Bank, F.S.B. and Countrywide Home Loans Servicing LP
Originators: Indymac Bank, F.S.B. and Countrywide Home Loans, Inc.
Custodians: Deutsche Bank National Trust Company and U.S. Bank National
Association
Seller: Xxxxxx Brothers Holdings Inc.
F-1
EXHIBIT G
FORM OF CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN
REPORT ON ASSESSMENT OF COMPLIANCE
To:
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx
(LXS 2006-2N)
Structured Asset Securities Corporation
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Reference is made to that certain reconstituted servicing agreement,
dated as of January 1, 2006 (the "Agreement"), by and among Xxxxxx Brothers
Holdings Inc., IndyMac Bank, F.S.B., as servicer and Aurora Loan Services LLC,
as master servicer, and acknowledged by [_________________], as Trustee,
relating to the issuance of the Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2006-2N. This certification is delivered pursuant to
Section [__] of the Agreement. Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in the Agreement.
[_______], the undersigned, a duly authorized [_______] of [the
Servicer] [Name of Subservicer/Subcontractor], does hereby certify that the
assessment of compliance to be delivered by [the Servicer] [Name of
Subservicer/Subcontractor] shall address, at a minimum, the criteria identified
as below as "Applicable Servicing Criteria", as identified by a xxxx in the
column titled "Applicable Servicing Criteria":
----------------------------------------------------------------------------------------------------------------
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
----------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
--------------------- --------------------------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
1122(d)(1)(i) accordance with the transaction agreements.
--------------------- --------------------------------
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
1122(d)(1)(ii) such servicing activities.
--------------------- --------------------------------
Any requirements in the transaction agreements to maintain
1122(d)(1)(iii) a back-up servicer for the mortgage loans are maintained.
--------------------- --------------------------------
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
1122(d)(1)(iv) the transaction agreements.
--------------------- --------------------------------
CASH COLLECTION AND ADMINISTRATION
--------------------- --------------------------------
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
1122(d)(2)(i) transaction agreements.
--------------------- --------------------------------
G-1
----------------------------------------------------------------------------------------------------------------
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
----------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
1122(d)(2)(ii) personnel.
--------------------- --------------------------------
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
1122(d)(2)(iii) as specified in the transaction agreements.
--------------------- --------------------------------
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
1122(d)(2)(iv) transaction agreements.
--------------------- --------------------------------
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
1122(d)(2)(v) Securities Exchange Act.
--------------------- --------------------------------
Unissued checks are safeguarded so as to prevent
1122(d)(2)(vi) unauthorized access.
--------------------- --------------------------------
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
1122(d)(2)(vii) agreements.
--------------------- --------------------------------
INVESTOR REMITTANCES AND REPORTING
--------------------- --------------------------------
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
1122(d)(3)(i) serviced by the Servicer.
--------------------- --------------------------------
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
1122(d)(3)(ii) terms set forth in the transaction agreements.
--------------------- --------------------------------
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
1122(d)(3)(iii) agreements.
--------------------- --------------------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
1122(d)(3)(iv) custodial bank statements.
--------------------- --------------------------------
POOL ASSET ADMINISTRATION
--------------------- --------------------------------
Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage
1122(d)(4)(i) loan documents.
--------------------- --------------------------------
Mortgage loan and related documents are safeguarded as
1122(d)(4)(ii) required by the transaction agreements
--------------------- --------------------------------
Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
1122(d)(4)(iii) conditions or requirements in the transaction agreements.
--------------------- --------------------------------
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
1122(d)(4)(iv) documents.
--------------------- --------------------------------
G-2
----------------------------------------------------------------------------------------------------------------
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
----------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------
The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
1122(d)(4)(v) unpaid principal balance.
--------------------- --------------------------------
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
1122(d)(4)(vi) asset documents.
--------------------- --------------------------------
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
1122(d)(4)(vii) transaction agreements.
--------------------- --------------------------------
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
1122(d)(4)(viii) is deemed temporary (e.g., illness or unemployment).
--------------------- --------------------------------
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
1122(d)(4)(ix) the related mortgage loan documents.
--------------------- --------------------------------
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
1122(d)(4)(x) agreements.
--------------------- --------------------------------
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
1122(d)(4)(xi) number of days specified in the transaction agreements.
--------------------- --------------------------------
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
1122(d)(4)(xii) late payment was due to the obligor's error or omission.
--------------------- --------------------------------
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
1122(d)(4)(xiii) specified in the transaction agreements.
--------------------- --------------------------------
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements.
--------------------- --------------------------------
Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
1122(d)(4)(xv) 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 January 1, 2006 (the
"Agreement"), by and among Xxxxxx Brothers Holdings Inc., IndyMac Bank,
F.S.B. (the "Servicer") 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
H-1
(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.
Date: _________________________
By:____________________________
Name:
Title:
H-2
