RECONSTITUTED SERVICING AGREEMENT
THIS
RECONSTITUTED SERVICING AGREEMENT (this “Agreement” or the “Reconstituted
Servicing Agreement”), entered into as of July 1, 2006, by and between XXXXXX
BROTHERS HOLDINGS INC., a Delaware corporation (the “Seller” or “Xxxxxx Brothers
Holdings”) and WASHINGTON MUTUAL BANK (formerly known as Washington Mutual Bank,
FA) (the “Servicer”), a savings association organized under the laws of the
United States, 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 under the Trust Agreement identified below (in such
capacity, the “Trustee”), recites and provides as follows recites and provides
as follows:
RECITALS
WHEREAS,
Xxxxxx Brothers Bank, FSB (the “Bank”) has acquired from the Servicer,
Washington Mutual Bank fsb (“WAMUFSB”) and Washington Mutual Bank (“WAMUB”)
certain conventional, residential, adjustable rate, first lien mortgage loans
(the “Mortgage Loans”) pursuant to a Mortgage Loan Purchase and Sale Agreement
among the Servicer, WAMUFSB, WAMUB and the Bank, dated as of September 1, 2003,
amended as of March 1, 2006 by the Regulation AB Amendment to the Mortgage
Loan
Purchase and Sale Agreement (as amended, the “Purchase Agreement”) and annexed
as Exhibit B hereto.
WHEREAS,
the Seller has conveyed certain Mortgage Loans identified on Exhibit C hereto
(the “Serviced Mortgage Loans”) to Structured Asset Securities Corporation, a
Delaware special purpose corporation (“SASCO”), which in turn has conveyed the
Serviced Mortgage Loans to Xxxxx Fargo Bank, National Association (the
“Trustee”), pursuant to a trust agreement, dated as of July 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”), Xxxxx Fargo Bank, N.A., as
securities administrator, (the “Securities Administrator”), and
SASCO.
WHEREAS,
the Serviced Mortgage Loans are currently being serviced by the Servicer
pursuant to a Servicing Agreement between the Bank and the Servicer, dated
as of
September 1, 2003, amended as of July 1, 2004 and as of March 1, 2006 by the
Regulation AB Amendment to the Servicing Agreement (the “Regulation AB
Amendment” and, collectively, the “Servicing Agreement”) and annexed as Exhibit
D hereto.
WHEREAS,
pursuant to an Assignment and Assumption Agreement, dated July 1, 2006 (the
“Assignment and Assumption Agreement”) annexed as Exhibit E 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 Servicing Agreement 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 Servicing
Agreement.
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 Servicing Agreement
shall continue to apply to the Serviced Mortgage Loans, but only to the extent
provided herein and that this Agreement shall govern the servicing of the
Serviced Mortgage Loans for so long as such Serviced Mortgage Loans remain
subject to the provisions of the Trust Agreement.
WHEREAS,
the Master Servicer and any successor master servicer shall be obligated, among
other things, to supervise the servicing of the Serviced Mortgage Loans on
behalf of the Trust Fund (or the Trustee on behalf of the Trust Fund), and
shall
have the right under the conditions specified herein to terminate for cause
the
rights and obligations of the Servicer under this Agreement.
WHEREAS,
the Seller and the Servicer intend that each of the Master Servicer and the
Trustee is an intended third party beneficiary of this Agreement as described
in
Section 22 of Exhibit A hereunder.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Seller and the Servicer hereby agree as
follows:
AGREEMENT
1. Definitions.
Capitalized terms used and not defined in this Agreement, including Exhibit
A
hereto and any provisions of the Servicing Agreement incorporated by reference
herein, shall have the meanings ascribed to such terms in the Servicing
Agreement or Purchase Agreement, as the case may be.
Notwithstanding
the foregoing, the term “Agreement” when used in the Servicing Agreement or the
Purchase Agreement shall have the meaning given to such term in the Servicing
Agreement or the Purchase Agreement, as the case may be.
2. Custodianship.
The
parties hereto acknowledge that U.S. Bank National Association will act as
custodian of the Collateral Files of the Serviced Mortgage Loans for the Trustee
on behalf of the Trust Fund and will maintain custody of the Collateral Files
at
the following address:
U.S.
Bank
National Association
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xx.
Xxxx,
Xxxxxxxxx 00000
Attention:
Document
Collateral Services
Telephone:
(000)
000-0000
Telecopier: (000)
000-0000
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 applicable Servicing
Agreement, except as otherwise provided herein and on Exhibit A hereto, and
that
the provisions of the Servicing Agreement, as so modified and incorporated
by
reference herein, are and shall be a part of this Agreement to the same extent
as if set forth herein in full. Pursuant
to Section 2.17 of the Servicing Agreement, the Servicer acknowledges that
a
REMIC election has been or will be made with respect to the Trust, and the
Servicer shall comply with the provisions of Section 2.17 of the Servicing
Agreement with respect to the REMIC provisions
4. Trust
Cut-off Date.
The
parties hereto acknowledge that by operation of Section 2.5 and Section 3.1
of
the Servicing Agreement, the remittance on August 18, 2006 to the SARM 2006-7
Trust Fund (the “Trust Fund”) is to include principal due after July 1, 2006
(the “Trust Cut-off Date”) plus interest, at the Net Rate collected during the
advancing period exclusive of any portion thereof allocable to a period prior
to
the Trust Cut-off Date, with the adjustments specified in Section 3.1 of the
relevant Servicing Agreement.
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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 Trust Fund created pursuant to the Trust Agreement, shall have
the same rights as the Seller, as owner, under the Servicing Agreement to
enforce the obligations of the Servicer under the Servicing Agreement and the
term “Owner” as used in the Servicing Agreement in connection with any rights of
the Owner 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 with respect
to the Servicer’s indemnification of the Trustee and the Trust Fund, or 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
and
the provisions of the Servicing Agreement to the extent unmodified or unamended
herein 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
Article 6 of the Servicing Agreement (such Article 6 and Article 7 of the
Servicing Agreement remaining unmodified except for the right to terminate
with
respect to the Serviced Mortgage Loans being vested in the Master Servicer
pursuant to this Agreement and as expressly described in Exhibit A hereto).
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of the Owner under the Servicing
Agreement and 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 or warranties regarding the characteristics of the Serviced
Mortgage Loans in connection with the transactions contemplated by the Trust
Agreement and issuance of the certificates (the “Certificates”) issued pursuant
thereto. Notwithstanding the preceding sentence, the Servicer hereby restates
and remakes to the Seller, the Owner, the Master Servicer, the Trustee and
the
Trust Fund each representation and warranty in Section 5.7 of the Servicing
Agreement as of July 1, 2006.
7. Waiver
and Amendment.
The
parties hereto agree that by execution of this Agreement, the Servicer has
waived or agreed to modification or amendment of, with respect to the Serviced
Mortgage Loans, certain of the Servicer’s rights that it has pursuant to the
provisions of the Servicing Agreement (the “Waiver”). The Waiver shall extend
only to the Serviced Mortgage Loans serviced under this Agreement, and shall
not
constitute a waiver or modification of any of the Servicer’s rights under any
other provision of the Servicing Agreement with respect to Mortgage Loans
purchased pursuant to the Purchase Agreement other than the Serviced Mortgage
Loans, waive any default by the Owner or impair any right of the Servicer
arising under this Agreement or the Servicing Agreement, in each case except
to
the extent expressly so waived in this Section 7. Except as otherwise provided
in this Agreement with respect to the Serviced Mortgage Loans, the Servicing
Agreement shall remain in full force and effect.
Notwithstanding
the foregoing and with respect to the Serviced Mortgage Loans, the Servicer
shall continue to be entitled to (i) collect its servicing compensation
(including, without limitation, its Servicing Fee), (ii) receive reimbursement
for advances (including, without limitation, Monthly Advances and Servicing
Advances), and (iii) timely receive all or any portion of the related Collateral
Files in connection with its performance of servicing activities (including,
without limitation, in connection with the processing of any satisfaction or
release of any Serviced Mortgage Loans), in accordance with the terms and
conditions of the Servicing Agreement. The Servicer shall be entitled to enforce
the rights set forth in the preceding sentence against the Trust Fund as the
Owner of the Serviced Mortgage Loans.
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8. Notices.
All
notices and communications between or among the parties hereto (including any
third party beneficiary thereof) or required to be provided to the Trustee
on
behalf of the Trust Fund shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient
is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attn: Xxxxxx
X. Xxxxxx - Master Servicing
SARM 2006-7
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
ABA#:
000-000-000
Account
Name: Aurora Loan Services LLC,
Master
Servicing Payment Clearing Account
Account
No.: 066-611059
Beneficiary:
Aurora Loan Services LLC
For
further credit to: SARM 2006-7
All
notices required to be delivered to the Trustee on behalf of the Trust Fund
hereunder shall be delivered to the Trustee at the following
address:
U.S.
Bank
National Association
0
Xxxxxxx
Xxxxxx, 0xx
Xxxxx
Boston,
M.A. 02110
Attention: Corporate
Trust Services/SARM 2006-7
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
4
With
a
copy to:
Dechert
LLP
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 following address:
Washington
Mutual Bank
0000
Xxxxx Xxxxxx, XXX0000
Xxxxxxx,
XX 00000
Attention:
General Counsel
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Washington
Mutual Bank
00000
X.
Xxxxxxxx Xxx.
Xxxxxxxxx,
XX 00000
Attention:
Vice President of Investor Reporting
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
9. 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.
10. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all of which counterparts shall
together constitute but one and the same instrument.
5
Executed
as of the day and year first above written.
XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
By:
Name:
Xxxxx Xxxxxxx
Title:
Authorized Signatory
WASHINGTON
MUTUAL BANK
as Servicer
as Servicer
By:
Name:
Title:
Acknowledged
By:
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
By:
Name: Xxxxxx
X.
Xxxxxx
Title: Vice
President
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U.S.
BANK NATIONAL ASSOCIATION
as
Trustee and not in its individual capacity
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By:
Name:
Title:
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EXHIBIT
A
Modifications
to the Servicing Agreement
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1.
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A
new definition of “Best Efforts” is hereby added to Article 1 to
immediately follow the definition of “Applicable Requirements,” to read as
follows:
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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.
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2.
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The
definition of “Determination Date” in Article 1 is hereby amended and
restated in its entirety, to read as
follows:
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Determination
Date:
The
fifteenth (15th)
day of
the calendar month of the related Monthly Remittance Date (or if such day is
not
a Business Day, the Business Day immediately preceding such day).
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3.
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A
new definition of “Mortgage Loan” is hereby added to Article 1 to
immediately follow the definition of “Mortgage Interest Rate,” to read as
follows:
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Mortgage
Loan:
An
individual servicing retained Mortgage Loan which has been purchased from
Washington Mutual Bank FA, Washington Mutual Bank fsb or Washington Mutual
Bank
by Xxxxxx Brothers Bank, FSB is subject to this Agreement by being identified
on
the Mortgage Loan Schedule to this Agreement, which mortgage loan includes
without limitation the rights to the mortgage loan documents, the monthly
reports, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan.
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4.
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A
new definition of “Mortgage Loan Schedule” is hereby added to Article 1 to
immediately follow the definition of “Mortgage Loan,” to read as
follows:
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Mortgage
Loan Schedule:
The
schedule of Mortgage Loans setting forth certain information with respect to
the
Mortgage Loans purchased from the Washington Mutual Bank, FA, Washington Mutual
Bank fsb or Washington Mutual Bank by Xxxxxx Brothers Bank, FSB, which Mortgage
Loan Schedule is attached as Exhibit C to this Reconstituted Servicing
Agreement.
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5.
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The
definition of “Qualified Depository” is hereby amended and restated in its
entirety to read as follows:
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Qualified
Depository:
Any of
(i) a depository the accounts of which are insured by the FDIC and the debt
obligations of which are rated AA (or its equivalent) or better by each Rating
Agency; (ii) the corporate trust department of any bank the debt obligations
of
which are rated at least A-1 or its equivalent by each Rating Agency; or (iii)
the Servicer, so long as the long-term unsecured debt obligations of the
Servicer are acceptable to either Rating Agency.
A-1
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6.
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A
new definition of “Rating Agency” is hereby added to Article 1 to
immediately follow the definition of “Qualified Depository,” to read as
follows:
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Rating
Agency:
Either
of Xxxxx’x or S&P, or any successor of the foregoing.
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7.
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Section
2.1 (Identification of Mortgage Loans; Servicer to Act as Servicer)
is
hereby amended by adding the following to the end of Subsection
(c):
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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.
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8.
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Section
2.3 (Collection of Mortgage Loan Payments) is hereby amended by replacing
the words “Continuously from the related Closing Date until the principal
and interest on all of the Mortgage Loans are paid in full,” with
“Continuously from July 1, 2006 until the date the Mortgage Loans
cease to
be subject to this Agreement.”
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9.
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Section
2.4 (Establishment of Account; Deposits in Account) is hereby amended
by:
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(i)
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replacing
the words “for Xxxxxx Brothers Bank, FSB, as Owner, and any successor
Owner” with the words “for SARM 2006-7 Trust Fund and various
Mortgagors.”; and
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(ii)
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adding
the following after the last sentence of subsection
(a):
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"Further,
a copy of such certification or letter agreement shall be furnished to the
Master Servicer within thirty (30) days of each Closing Date."
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10.
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Section
2.5 (Permitted Withdrawals from the Account) is hereby amended by
deleting
the word “and” at the end of clause (vii), by replacing the period at the
end of clause (viii) with “; and” and by adding the following new clause
(ix):
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(ix)
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to
invest funds in the Account in Permitted Investments in accordance
with
Section 2.4(d).
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11.
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Section
2.6 (Establishment of Escrow Account; Deposits in Escrow Account;
Escrow
Analysis) is hereby amended by:
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(i)
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replacing
the words “for Xxxxxx Brothers Bank, FSB, as Owner and any successor
Owner, and certain Mortgagors” with “for SARM 2006-7 Trust Fund and
various Mortgagors.”; and
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(ii)
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adding
the following after the last sentence of subsection
(a):
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"Further,
a copy of such certification or letter agreement shall be furnished to the
Master Servicer within thirty (30) days of each Closing Date."
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12.
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Section
2.12 (Title, Management and Disposition of Real Estate Owned) is
hereby
amended by replacing all references to “Owner” with “Trustee” in paragraph
(a).
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13.
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Section
3.1 (Distributions) is hereby amended as
follows:
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(i)
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replacing
the word “preceding” in the second line of 3.1(a) with the word “related;”
and
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A-2
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(ii)
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by
adding the following after Section
3.1(c):
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(d)
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All
remittances required to be made to the Master Servicer shall be made
to
the following wire account or to such other account as may be specified
by
the Master Servicer from time to
time:
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JPMorgan
Chase Bank
ABA#:
000-000-000
Account
Name: Aurora Loan Services LLC,
Master
Servicing Payment Clearing Account
Account
No.: 066-611059
Beneficiary:
Aurora Loan Services LLC
For
further credit to: SARM 2006-7
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14.
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Section
4.4 (Statements as to Compliance) is hereby deleted in its
entirety:
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15.
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Section
4.5 (Annual Independent Public Accountants’ Servicing Report) is hereby
deleted in its entirety.
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16.
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Section
5.1 (Indemnification; Third Party Claims) is hereby amended by deleting
Subsection (a) and replacing it with the
following:
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(a) The
Servicer agrees to indemnify the Trust Fund and the Trustee and hold each
of them harmless against any and all third party 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 service
the Mortgage Loans in compliance with the terms of this Agreement; provided,
a
written request for indemnity by the Master Servicer submitted directly by
the
Master Servicer to the Servicer shall be deemed by the Servicer to be a claim
for indemnity by the Trustee or the Trust Fund pursuant to this Section 5.1(a),
together with the Trust Fund’s direction to remit any amounts due hereunder to
the Master Servicer, if the Master Servicer provides the Servicer with (i)
reasonable evidence (x) confirming that such claim arises out of the Servicer’s
failure to service the Mortgage Loans in compliance with this Agreement and
(y)
identifying the losses, damages, penalties, fines, forfeitures, reasonable
and
necessary legal fees and related costs, judgments, and any other costs, fees
and
expenses incurred by the Master Servicer, and (ii) the agreement pursuant to
which the Trust Fund has agreed to indemnify the Master Servicer and specifying
the applicable provisions of such agreement; and further provided, however,
the
Servicer shall not be liable hereunder with respect to (i) any action or
inaction in accordance with the written direction or consent of the Trustee,
Trust Fund, Master Servicer or Xxxxxx Brothers Holdings Inc. or (ii) any action
or inaction resulting from the Trustee’s, Trust Fund’s, Master Servicer’s or
Xxxxxx Brothers Holdings Inc.’s failure to cause any Collateral File (or portion
thereof) to be released to the Servicer pursuant to Sections 2.18 or 4.2(c)
or
other terms of this Agreement or (iii) any action or inaction resulting from
the
Trust Fund’s failure to comply with Section 5.1(b) or Section 5.6. The Servicer
shall promptly notify the Trustee if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans, that the Servicer determines
in
its good faith judgment will materially affect the Trust Fund’s interest in such
Mortgage Loans. The Servicer shall 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 reasonable 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 indemnified
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 Section 5.1, and the Trustee,
from the assets of the Trust Fund, shall promptly reimburse the Servicer for
all
amounts advanced by the Servicer pursuant to this Section 5.1(a) 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 the
Servicer.
A-3
The
Trust
Fund shall indemnify the Servicer and hold it harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Servicer may sustain in any way related to the failure of the Trust
Fund to perform its duties in compliance with the terms of this
Agreement.
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17.
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Section
6.1 (Events of Default) is hereby amended by changing all references
to
“Owner” with “Master Servicer” in such Section and deleting Subsection
(vi) and replacing it with the
following:
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(vi) 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;
or
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18.
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The
parties hereto acknowledge that the word “Owner” in Section 6.2 (Waiver of
Defaults) shall refer to the “Master Servicer with the prior consent of
the Trustee.”
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19.
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Section
8.4 (Additional Representations and Warranties of the Servicer),
as such
section is amended by the Regulation AB Amendment, is hereby further
amended by replacing the words “any Securitization Transaction and any
party thereto identified by the related Depositor” with the words “any
party identified on Exhibit F of the Reconstituted Servicing
Agreement.”
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20.
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Section
8.5 (Information to be Provided by the Servicer), as such section
is
amended by the Regulation AB Amendment, is hereby further amended
by
replacing subsection (a)(iii) thereof in its entirety with “a description
of any affiliation or relationship (of a type described in Item 1119
of
Regulation AB) between the Servicer, each Third-Party Originator,
each
Subservicer and any of the parties listed on Exhibit F
hereto.”
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A-4
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21.
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Section
9.1 (Successor to the Servicer) is hereby amended in its entirety
to read
as follows:
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(a) Simultaneously
with the termination of the Servicer’s responsibilities and duties under this
Agreement pursuant to Sections 5.4, 6.1, 7.1 or 7.2 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 simultaneously 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 Inc., 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 Xxxxxx Brothers Holdings Inc., 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 sections, the Servicer shall discharge such
duties and responsibilities, and be compensated therefor as provided in this
Agreement, 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 sections shall not become effective until a successor
shall be appointed pursuant to this Section 9.1 and shall in no event relieve
the Servicer of the representations and warranties made pursuant to Section
5.7
prior to such resignation or termination, which representations and warranties
shall be applicable to the Servicer notwithstanding any such resignation or
termination of the Servicer, or the termination of this Agreement.
(b) Within
a reasonable period of time, the Servicer shall promptly prepare, execute and
deliver to the successor entity any and all documents and other instruments,
place in such successor’s possession all Collateral Files and Credit Files, and
do or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such termination. The Servicer shall cooperate with
the
Trustee and the Master Servicer, as applicable, on behalf of the Trust Fund
and
such successor in effecting the termination of the Servicer’s responsibilities
and rights hereunder and the transfer of servicing responsibilities to the
successor, 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 Account or the Escrow Account or thereafter received with
respect to the Mortgage Loans, in each case to which the Servicer is not
entitled pursuant to this Agreement.
A-5
(c) Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer and the Master Servicer, and the Trustee, on behalf of the Trust
Fund, 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 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 Sections 6.1 or 7.1 shall not affect any claims that the Trust
Fund
(or the Master Servicer or the Trustee on behalf of the Trust Fund) may have
against the Servicer arising out of the Servicer’s actions or failure to act
prior to any such termination or resignation.
(d) The
Servicer shall promptly deliver the funds in the Account and Escrow Account,
in
each case to which the Servicer is not entitled pursuant to this Agreement
and
all Collateral Files, Credit Files and related documents and statements held
by
it hereunder 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.
(e) Upon
a successor’s acceptance of appointment as such, the Servicer, the Master
Servicer and the Trustee shall each notify the others of such appointment,
but
only if and to the extent of having actual knowledge of such
appointment.
(f) Notwithstanding
any termination pursuant to this Agreement, the Servicer shall continue to
be
entitled to receive all amounts accrued or owing to it under this Agreement
on
or prior to the effective date of such termination, whether in respect of (i)
unreimbursed Servicing Advances or Monthly Advances, (ii) unpaid Servicing
Fees
or REO Management Fees or (iii) or other servicing compensation, and shall
continue to be entitled to the benefits of Section 5.3 notwithstanding any
such
termination, with respect to events occurring prior to such
termination.
|
22.
|
A
new
Section 9.15 is hereby added 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; provided,
however, that no third party beneficiary designation will extend indemnification
rights directly to the Master Servicer. 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
any
other terms of this Agreement, the parties agree that the overriding intent
is
for the Servicer to be entitled to deal with and through the Master Servicer
in
virtually all circumstances. This intent is not altered by anything herein,
including without limitation, the following: any third party beneficiary
designation of the Trustee; any requirement that the Servicer give notice to
others with respect to third party claims; any indemnification of the Servicer
for following instructions of others in selected circumstances; any
indemnifications running from the Servicer to others; or any provisions allowing
the Servicer in any circumstance to rely on instructions from others.
Notwithstanding the foregoing, all rights and obligations of the Master Servicer
and the Trustee hereunder (other than the Trustee’s right to indemnification)
shall terminate upon termination of the Trust Agreement and of the Trust Fund
pursuant to the Trust Agreement; and upon such termination of the Trust Fund
and
the Trust Agreement, the Serviced Mortgage Loans shall no longer be governed
by
this Agreement but will be governed by terms of the relevant Servicing
Agreement. The
parties to this Agreement further agree that the Depositor shall have the right
to enforce its rights and shall assume its obligations under the Regulation
AB
Amendment as if the Depositor were a signatory to the Regulation AB
Amendment.
A-6
EXHIBIT
B
Purchase
Agreement
[INTENTIONALLY
OMITTED]
EXHIBIT
C
Mortgage
Loan Schedule
On
File
at the offices of:
Dechert
LLP
Xxxx
Center
0000
Xxxx
Xxxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxx
T-215-994-2777
F-215-994-2222
EXHIBIT
D
Servicing
Agreement
(See
Exhibit 99.6)
EXHIBIT
E
Assignment
and Assumption Agreement
[INTENTIONALLY
OMITTED]
EXHIBIT
F
TRANSACTION
PARTIES
Trustee:
U.S. Bank National Association
Securities
Administrator: Xxxxx Fargo Bank, 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: N/A
Servicers:
Aurora Loan Services LLC, Countrywide Home Loans Servicing LP, Washington Mutual
Bank and Xxxxx Fargo Bank, N.A.
Originators:
American Home Mortgage Corp., American Sterling Bank, Alliance Bancorp, Bay
Capital Corporation, BSM Financial, LP, CCO Mortgage Corp., Countrywide Home
Loans, Inc., GreenPoint Mortgage Funding, Inc., Family Lending Services, Inc.,
Impac Funding Corporation, Xxxxxx Brothers Bank, FSB, Ohio Savings Bank,
Washington Mutual Bank and Xxxxx Fargo Bank, N.A.
Custodians:
Deutsche Bank National Trust Company, LaSalle Bank National Association, Xxxxx
Fargo Bank, N.A. and U.S. Bank National Association
Seller:
Xxxxxx Brothers Holdings Inc.
