Exhibit 99.7
Execution Copy
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of June, 2006, by and between XXXXXX BROTHERS HOLDINGS
INC., a Delaware corporation (the "Seller" or "Xxxxxx Brothers Holdings"), and
GMAC MORTGAGE CORPORATION, a Pennsylvania corporation (the "Servicer" or the
"Company"), having an office at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000,
recites and provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain fixed
rate, conventional, first lien residential mortgage loans from the Servicer,
which mortgage loans were either originated or acquired by the Servicer pursuant
to the Master Mortgage Loan Sale and Servicing Agreement dated as of June 1,
2005, as amended as of August 16, 2005, and as further amended by that certain
Amendment Regulation AB dated as of March 1, 2006 ("Amendment Reg AB" and
collectively, the "Sale and Servicing Agreement"), which Sale and Servicing
Agreement is annexed as Exhibit B hereto.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated
June 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 Sale and
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 Master Mortgage Loan Purchase Agreement.
WHEREAS, the Seller has conveyed certain mortgage loans as identified
on Exhibit C hereto (the "Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO"), which in turn has
conveyed the Mortgage Loans to U.S. Bank National Association, as trustee (the
"Trustee"), pursuant to a trust agreement, dated as of June 1, 2006 (the "Trust
Agreement"), among the Trustee, Aurora Loan Services LLC, 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 Mortgage Loans are currently being serviced by the
Servicer for the Seller pursuant to the Sale and Servicing Agreement.
WHEREAS, the Seller desires that the Servicer continue to service the
Mortgage Loans, and the Servicer has agreed to do so, subject to the rights of
the Seller (with the consent of the Master Servicer) to terminate the rights and
obligations of the Servicer hereunder as permitted under Section 10.02 of the
Sale and Servicing Agreement, as amended hereby and subject to the other
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Sale and Servicing Agreement shall continue to apply to the Mortgage Loans, but
only to the extent provided herein and that this Agreement shall govern the
Mortgage Loans for so long as such
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Mortgage Loans remain subject to the provisions of the Trust Agreement and until
the Transfer Date.
WHEREAS, the Seller and the Servicer agree that if a successor
servicer is appointed pursuant to the terms of this Agreement, the Servicer
shall no longer service the Mortgage Loans and shall transfer servicing of the
Mortgage Loans to the successor servicer designated by the Seller herein.
WHEREAS, the Master Servicer and any successor master servicer shall
be obligated, among other things, to supervise the servicing of the Mortgage
Loans on behalf of the Trustee, 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.
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 Sale and
Servicing Agreement incorporated by reference herein (regardless of whether such
terms are defined in the Sale and Servicing Agreement), shall have the meanings
ascribed to such terms in the Trust Agreement.
2. Custodianship. The parties hereto acknowledge that U.S. Bank
National Association will act as custodian of the Mortgage Files for the Trustee
pursuant to a Custodial Agreement, dated June 1, 2006, between U.S. Bank
National Association and the Trustee.
3. Servicing. The Servicer agrees, with respect to the Mortgage Loans,
to perform and observe the duties, responsibilities and obligations that are to
be performed and observed under the provisions of the Sale and Servicing
Agreement, except as otherwise provided herein and on Exhibit A hereto, and that
the provisions of the Sale and Servicing Agreement, as so modified, are and
shall be a part of this Agreement to the same extent as if set forth herein in
full.
4. 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 Mortgage Loans in accordance with the provisions of this
Agreement. The Master Servicer, acting on behalf of the Trustee and the LXS
2006-10N Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement,
shall have the same rights as the Seller under the Sale and Servicing Agreement
to enforce the obligations of the Servicer under the Sale and Servicing
Agreement and the term "Initial Owner" or "Owner" as used in the Sale and
Servicing Agreement in connection with any rights of the Initial Owner or Owner
shall refer to the Trust Fund or, as the context requires, the
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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
9.01 of the Sale and Servicing Agreement. Notwithstanding anything herein to the
contrary, in no event shall the Master Servicer assume any of the obligations of
the Seller under the Sale and Servicing Agreement 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.
5. Representations. Neither the Servicer nor the Master Servicer shall
be obligated or required to make any representations and warranties regarding
the characteristics of the Mortgage Loans in connection with the transactions
contemplated by the Trust Agreement and issuance of the Certificates issued
pursuant thereto. The Servicer hereby restates as of the Closing Date the
representations and warranties made in Section 3.01.
6. 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, Xxxxxxxx 00000
Mail Stop Code - 3195
Attention: Xxxxxx X. Xxxxxx - Master Servicing, LXS 0000-00X
Telephone: (000) 000-0000
Telecopier: (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:
0
XXXxxxxx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx
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: LXS 2006-10N
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
U.S. Bank National Association
One Federal Street
Boston, M.A. 02110
Attention: Corporate Trust Services
Reference: LXS 0000-00X
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller at the following address:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder shall
be delivered to the Servicer at the following address:
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Email: xxxxx.xxxx@xxxxx.xxx
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7. 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.
8. 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.
9. NIMS Insurer. In addition to the terms and conditions set forth in
this Agreement, any and all rights of the Master Servicer and Trustee to receive
notices from the Servicer pursuant to this Agreement shall hereby be equally
granted to the NIMS Insurer. The Master Servicer or the Trustee shall notify the
Servicer in writing of the name and address of the NIMS insurer and the name and
telephone number of the appropriate contact employee of the NIMS Insurer. For
any and all obligations of the Servicer to obtain consent from the Master
Servicer and the Trustee pursuant to this Agreement, the Servicer must also
obtain such consent from the NIMS Insurer. Notwithstanding any other provision
in this Agreement, the Trust Fund shall hold harmless and indemnify the Servicer
for any failure of the NIMS Insurer to comply with the provisions of this
Agreement. Notwithstanding any provision herein to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the intent of
such parties as set forth herein, that the NIMS Insurer receive the benefit of
the provisions of this Agreement as an intended third party beneficiary of this
Agreement to the extent of such provisions. The Servicer shall have the same
obligations to the NIMS Insurer as if it was a party to this Agreement, and the
NIMS Insurer shall have the same rights and remedies to enforce the provisions
of this Agreement as if it was a party to this Agreement. The parties hereto
agree to cooperate in good faith to amend this Agreement in accordance with the
terms hereof to include such other provisions as may be reasonably requested by
the NIMS Insurer. Notwithstanding the foregoing, all rights of the NIMS Insurer
set forth in this Agreement shall exist only so long as the NIM Securities
issued pursuant to the NIMS Transaction remain outstanding or the NIMS Insurer
is owed amounts in respect of its guarantee of payment on such NIM Securities.
"NIM Security" shall mean any net interest margin security issued by
an owner trust or special purpose entity that is holding all rights, title and
interest in and to the Class 1-X or Class 2-X Certificates issued by the Trust
Fund.
"NIMS Insurer" shall mean collectively, any insurance companies
issuing a financial guaranty insurance policy covering certain payments to be
made on NIM Securities pursuant to a NIMS Transaction.
"NIMS Transaction" shall mean any transaction in which NIM Securities
are secured, in part, by the payments on the Class 1-X or Class 2-X Certificates
issued by the Trust Fund.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
GMAC MORTGAGE CORPORATION,
as Servicer
By:
------------------------------------
Name:
Title:
ACKNOWLEDGED BY:
AURORA LOAN SERVICES LLC,
as Master Servicer
By:
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
as Trustee and not individually
By:
---------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Sale and Servicing Agreement
1. Unless otherwise specified herein, any provisions of the Sale and Servicing
Agreement, including definitions, relating to Whole-Loan Transfers,
Pass-Through Transfers, Closing Dates, Cut-off Dates and First Remittance
Dates shall be disregarded. Unless otherwise specified herein, for purposes
of this Agreement, the exhibits to the Sale and Servicing Agreement and all
references to such exhibits shall also be disregarded.
2. The definition of "Custodial Agreement" in Article I is hereby amended in
its entirety to read as follows:
"Custodial Agreement" means the Trust Agreement.
3. The definition of "Determination Date" in Article I is hereby amended in
its entirety to read as follows:
"Determination Date" means the 15th day (or if such 15th day is not a
Business Day, the Business Day immediately preceding such 15th day) of
the month of the related Remittance Date.
4. The definition of "Due Period" in Article I is hereby amended in its
entirety to read as follows:
"Due Period": With respect to each Remittance Date, the period
commencing on the second day of the month immediately preceding the
month of such Remittance Date and ending on the first day of the month
of such Remittance Date.
5. The definition of "Eligible Depository Institution" in Article I is hereby
amended in its entirety to read as follows:
"Eligible Depository Institution": Any of (i) a federal or
state-chartered depository institution the accounts of which are
insured by the FDIC and whose commercial paper, short-term debt
obligations or other short-term deposits are rated at least "A-1+" by
S&P, or whose long-term unsecured debt obligations are rated at least
"AA-" by S&P if the deposits 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 S&P, 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 Section 9.10(b), which, in either case, has
corporate trust powers, acting in its fiduciary capacity, or (iii)
Xxxxxx Brothers Bank, FSB, a federal savings bank.
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6. The definition of "Eligible Investments" in Article I is hereby amended in
its entirety to read as follows:
"Eligible Investments": Any one or more of the obligations and
securities listed below which investment provides for a date of
maturity not later than the Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in, certificates
of deposits of, or bankers' acceptances issued by, any depository
institution or trust company (including U.S. subsidiaries of foreign
depositories and the Trustee or any agent of the Trustee, acting in
its respective commercial capacity) incorporated or organized under
the laws of the United States of America or any state thereof and
subject to supervision and examination by federal or state banking
authorities, so long as at the time of investment or the contractual
commitment providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the commercial
paper or other short-term debt or deposit obligations of such holding
company or deposit institution, as the case may be) have been rated by
each Rating Agency in its highest short-term rating category or one of
its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct Obligations
or securities guaranteed by Xxxxxx Mae, Xxxxxx Xxx or Xxxxxxx Mac with
any registered broker/dealer subject to Securities Investors'
Protection Corporation jurisdiction or any commercial bank insured by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured
and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(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
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Eligible Investments if they are published as being under review with
negative implications from either Rating Agency;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date of
issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on behalf
of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then-current rating
by each Rating Agency of any of the Certificates. Such investments in
this subsection (viii) may include money market mutual funds or common
trust funds, including any fund for which the Trustee, the Master
Servicer or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (x) the Trustee, the Master
Servicer or an affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (y) the Trustee, the
Master Servicer or an affiliate thereof charges and collects fees and
expenses for services rendered pursuant to this Agreement and (z)
services performed for such funds and pursuant to this Agreement may
converge at any time, provided, however, that no such instrument shall
be an Eligible Investment if such instrument evidences either (1) a
right to receive only interest payments with respect to the
obligations underlying such instrument or (2) 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.
7. The definition of "Xxxxxx Mae" is hereby added to Article I to immediately
follow the definition of "GMAC" and to read as follows:
"Xxxxxx Xxx": The Government National Mortgage Association, or any
successor thereto.
8. The definition of "Mortgage Loan" in Article I is hereby amended in its
entirety to read as follows:
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"Mortgage Loan": An individual Mortgage Loan which has been purchased
from the Company by Xxxxxx Brothers Holdings 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.
9. The definition of "Mortgage Loan Schedule" in Article I is hereby amended
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 Company by Xxxxxx
Brothers Holdings pursuant to the Sale and Servicing Agreement.
10. The definition of "P&I Advance" in Article I is hereby amended in its
entirety to read as follows:
"P&I Advance": With respect to each Remittance Date and each Mortgage
Loan, an amount equal to the Monthly Payment (with the interest
portion of such Monthly Payment adjusted to the Mortgage Loan
Remittance Rate) that was due on the Mortgage Loan on the Due Date in
the related Due Period, and that (i) was delinquent at the close of
business on the related Determination Date and (ii) was not the
subject of a previous P&I Advance, but only to the extent that such
amount is expected, in the reasonable judgment of the Company, to be
recoverable from collections or other recoveries in respect of such
Mortgage Loan. To the extent that the Company determines that any such
amount is not recoverable from collections or other recoveries in
respect of such Mortgage Loan, such determination shall be evidenced
by a certificate of a Servicing Officer delivered to the Master
Servicer setting forth such determination and the procedures and
considerations of the Company forming the basis of such determination,
which shall include a copy of any broker's price opinion and any other
information or reports obtained by the Company which may support such
determinations.
11. The definition of "Prepayment Interest Shortfall" in Article I is hereby
amended in its entirety to read as follows:
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part during
any Due Period, which Principal Prepayment was applied to such
Mortgage Loan prior to such Mortgage Loan's Due Date in such Due
Period, the amount of interest (net the related Servicing Fee for
Principal Prepayments in full) that would have accrued on the
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amount of such Principal Prepayment during the period commencing on
the date as of which such Principal Prepayment was applied to such
Mortgage Loan and ending on the day immediately preceding such Due
Date, inclusive.
12. The definition of "Qualified GIC" in Article I is hereby added to
immediately follow the definition of "Qualified Appraiser" and 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 Company may exercise all of the rights
under such contract or surety bond without the necessity of taking any
action by any other Person;
(c) provide that if at any time the then-current credit
standing of the obligor under such guaranteed investment contract is
such that continued investment pursuant to such contract of funds
would result in a downgrading of any rating of the Company, the
Company 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 Company's interest therein shall be
transferable to any successor Company 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.
13. The definition of "Servicing Fee" in Article I is hereby amended and
restated in its entirety to read as follows:
Servicing Fee: An amount equal to one-twelfth the product of (a) 0.25%
per annum (the "Servicing Fee Rate") and (b) the outstanding principal
balance of the Mortgage Loan. The Servicing Fee is payable solely from
the interest portion (including recoveries with respect to interest
from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds) of such
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Monthly Payment collected by the Company or as otherwise provided
under this Agreement.
14. Section 3.03 (Repurchase and Substitution) is hereby amended by:
(i) adding the phrase "and the Master Servicer" after the phrase "inure to
the benefit of the Owner" in the first paragraph of such Subsection;
and
(iii) adding the words "each of" after the word "indemnify" and the phrase
"and the Master Servicer (and each of their respective directors,
officers, employees and agents)" after the words "the Owner" in the
first sentence of the fourth paragraph of such Subsection.
15. Section 4.01 (Company to Act as Servicer) is hereby amended and restated in
its entirety to read as follows:
From the date of origination of the related Mortgage Loans to the
related Closing Date, the Company shall have serviced the related
Mortgage Loans in accordance with Customary Servicing Procedures. From
and after the related Closing Date, the Company, as an independent
contractor, shall service and administer the Mortgage Loans pursuant
to this Agreement and shall have full power and authority, acting
alone, to do any and all things in connection with such servicing and
administration which the Company may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted
Servicing Practices.
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 strict compliance with 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 Owner, 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 and
the Company has obtained the prior written consent of the Owner) the
Company shall not permit any modification with respect to any Mortgage
Loan that would change the Mortgage Interest Rate, defer or 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.
With respect to a Reconstitution Agreement, in the event of any such
modification which permits the deferral of interest or principal
payments on any Mortgage Loan, the Company shall, on the Business Day
immediately preceding the Remittance Date in any month in which any
such principal or interest payment has been deferred, deposit in the
Custodial Account from its own funds, in accordance with Section 4.04,
the difference between (a) such month's principal and one month's
interest at the Mortgage Loan Remittance Rate on the
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unpaid principal balance of such Mortgage Loan and (b) the amount paid
by the Mortgagor. With the approval of the Master Servicer, the
Company shall be entitled to reimbursement for such advances only to
the same extent as for P&I Advances made pursuant to Section 5.03
hereunder. 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 Owner, 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. If
reasonably required by the Company, the Owner shall furnish the
Company with any powers of attorney and other documents necessary or
appropriate to enable the Company to carry out its servicing and
administrative duties under this Agreement.
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.
In servicing and administering the Mortgage Loans, the Company
shall employ procedures (including collection procedures) and exercise
the same care that it customarily employs and exercises in servicing
and administering mortgage loans for its own account, giving due
consideration to Customary Servicing Procedures where such practices
do not conflict with the requirements of this Agreement, and the
Owner's reliance on the Company.
Absent written consultation and approval by the Owner, as
specified in this Section 4.01, the Company may take actions relative
to the servicing and administration of the Mortgage Loans that are
consistent with Customary Servicing Procedures.
16. The parties hereto acknowledge that references to the "Owner" in the first
paragraph of Section 4.02 shall refer to the Master Servicer, except that
the expense of any environmental inspection or review at the request of the
Master Servicer shall be an expense of the Trust Fund.
17. The parties hereto acknowledge that (i) the Custodial Account referenced in
Section 4.04 shall be titled "GMAC Mortgage Corporation in trust for U.S.
Bank National Association, as trustee for LXS 2006-10N" and (ii) references
to the Cutoff Date shall mean the close of business on June 1, 2006.
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18. Section 4.04 (Establishment of Custodial Account; Deposits in Custodial
Account" shall be amended by replacing the phrase "on a daily basis" in the
first line of the second paragraph of such Section with the phrase "within
two Business Days after receipt".
19. The parties hereto acknowledge that (i) the Escrow Account referenced in
Section 4.06 shall be titled "GMAC Mortgage Corporation in trust for U.S.
Bank National Association, as trustee for LXS 2006-10N."
20. Section 4.09 (Transfer of Accounts) is hereby amended by adding the
following sentence at the end of such Section:
The Company shall give notice to the Master Servicer of any change in
the location of the Custodial Account no later than 30 days after any such
transfer is made and deliver to the Master Servicer a certification notice
in the form of Exhibit B or Exhibit C, as applicable, with respect to such
Eligible Account.
21. Section 4.14 (Title, Management and Disposition of REO Property) is hereby
amended by (i) adding two new paragraphs after the second paragraph thereof
to read as follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan, the
Company shall dispose of such REO Property not later than the end of the
third taxable year after the year of its acquisition by the Trust Fund
unless the Company has applied for and received a grant of extension from
the Internal Revenue Service to the effect that, under the REMIC Provisions
and any relevant proposed legislation and under applicable state law, the
applicable Trust REMIC may hold REO Property for a longer period without
adversely affecting the REMIC status of such REMIC or causing the
imposition of a federal or state tax upon such REMIC. If the Company has
received such an extension, then the Company shall continue to attempt to
sell the REO Property for its fair market value for such period longer than
three years as such extension permits (the "Extended Period"). If the
Company has not received such an extension and the Company is unable to
sell the REO Property within the period ending 3 months before the end of
such third taxable year after its acquisition by the Trust Fund or if the
Company has received such an extension, and the Company is unable to sell
the REO Property within the period ending three months before the close of
the Extended Period, the Company shall, before the end of the three-year
period or the Extended Period, as applicable, (i) purchase such REO
Property at a price equal to the REO Property's fair market value or (ii)
auction the REO Property to the highest bidder (which may be the Company)
in an auction reasonably designed to produce a fair price prior to the
expiration of the three-year period or the Extended Period, as the case may
be. The Trustee shall sign any document or take any other action reasonably
requested by the Company which would enable the Company, on behalf of the
Trust Fund, to request such grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed to continue
to be rented) or
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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.
(ii) 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.
22. Section 5.02 (Statements to the Owner) is hereby amended and restated in
its entirety as follows:
Section 5.02 Statements to the Master Servicer.
The Company shall deliver or cause to be delivered to the Master
Servicer executed copies of the custodial and escrow account letter
agreements pursuant to Sections 4.04 and 4.06 within 30 days of the Closing
Date.
Not later than the tenth calendar day of each month (or, if such tenth
day is not a Business Day, the following Business Day), the Company shall
furnish to the Master Servicer (a) a monthly remittance and reporting
format in the format currently being used and mutually agreed upon by the
Company and by the Master Servicer as to the accompanying remittance and
the period ending on the last day of the preceding Determination Date and
(b) all such information required pursuant to clause (a) above on a
magnetic tape or other similar media reasonably acceptable to the Master
Servicer.
Beginning with calendar year 2007, the Company shall prepare and file
any and all tax returns, information statements or other filings for the
portion of the tax year 2006 and the portion of subsequent tax years for
which the Company has serviced some or all of the Mortgage Loans hereunder
as such returns, information statements or other filings are required to be
delivered to any governmental taxing authority or to the Master Servicer
pursuant to any applicable law with respect to the Mortgage Loans and the
transactions contemplated hereby. In addition, the Company shall provide
the Master Servicer with such information concerning the Mortgage Loans as
is necessary for the Master Servicer to prepare the Trust Fund's federal
income tax return as the Master Servicer may reasonably request from time
to time.
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23. Section 5.03 (P&I Advances by the Company) is hereby amended and restated
in its entirety as follows:
On the Business Day immediately preceding each Remittance Date, the
Company shall deposit in the Custodial Account from its own funds an amount
equal to all Monthly Payments (with interest adjusted to the Mortgage Loan
Remittance Rate) which were due on the Mortgage Loans during the applicable
Due Period and which were delinquent at the close of business on the
immediately preceding Determination Date or which were deferred pursuant to
Section 4.01. Any amounts held for future distribution and so used to make
P&I Advances shall be replaced by the Company by deposit in the Custodial
Account on or before any future Remittance Date if funds in the Custodial
Account on such Remittance Date shall be less than payments to the Trust
Fund required to be made on such Remittance Date. The Company's obligation
to make such P&I Advances as to any Mortgage Loan will continue through the
last Monthly Payment due prior to the payment in full of the Mortgage Loan,
or through the last Remittance Date prior to the Remittance Date for the
distribution of all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds and Condemnation Proceeds) with respect to
the Mortgage Loan unless the Company deems such P&I Advances to be
unrecoverable, as evidenced by an Officer's Certificate of the Company
delivered to the Master Servicer.
24. Section 6.03 (Servicing Compensation) is hereby amended by adding the
following sentence at the end of such Section:
The Company shall be required to pay all expenses incurred by it
in connection with its servicing activities hereunder and shall not be
entitled to reimbursement thereof except as specifically provided for
herein.
25. Section 6.04 (Annual Statement as to Compliance) is hereby amended by (i)
replacing "Owner" with "Xxxxxx Brothers Holdings and Master Servicer", (ii)
replacing "March 31 of each year" with "the 15th day of March of each year"
and (iii) replacing "March 31, 2004" with "March 15, 2006".
26. Section 6.05 (Annual Independent Public Accountants' Servicing Report) is
hereby deleted in its entirety.
27. A new Section 6.09 is hereby added to this Agreement to read as follows:
(a) By March 15th of each year (or if not a Business Day, the
immediately preceding Business Day), commencing with March 15, 2007, an
officer of the Company shall execute and deliver an Officer's Certificate
in the form of Exhibit D attached hereto, signed by an officer of the
Company, to the Master Servicer and the Depositor for the benefit of such
Master Servicer and such Depositor and their respective officers, directors
and affiliates.
28. Sections 8.01 (Indemnification; Third Party Claims) is hereby amended in
its entirety to read as follows:
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The Company shall indemnify the Trust Fund, the Trustee and
the Master Servicer and hold each of them harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and any other costs,
fees and expenses that any of such parties may sustain directly
resulting from the failure of the Company to perform its duties and
service the Mortgage Loans in material compliance with the terms of
this Agreement. The Company immediately shall notify Xxxxxx Brothers
Holdings, the Master Servicer and the Trustee or any other relevant
party if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the prior written
consent of the indemnified party) the defense of any such claim and
pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or any of such parties in respect of such claim.
The Company shall follow any written instructions received from the
Trustee in connection with such claim. The Trustee, from the assets of
the Trust Fund, promptly shall reimburse the Company for all amounts
advanced by it pursuant to the preceding sentence except when the
claim is in any way related to the failure of the Company to service
and administer the Mortgage Loans in material compliance with the
terms of this Agreement.
The Trust Fund shall indemnify the Company and hold it
harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the
Company may sustain in any way related to the failure of the Trustee
or the Master Servicer to perform its duties in compliance with the
terms of this Agreement.
In the event a dispute arises between an indemnified party
and the Company with respect to any of the rights and obligations of
the parties pursuant to this Agreement and such dispute is adjudicated
in a court of law, by an arbitration panel or any other judicial
process, then the losing party shall indemnify and reimburse the
winning party for all attorney's fees and other costs and expenses
related to the adjudication of said dispute.
29. Section 9.01 (Events of Default) is hereby amended as follows:
(a) Amending Subsection 9.01(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 after the
absence of such approval; or"
(b) Replacing the last paragraph thereof with the following:
Upon receipt by the Company of such written notice, all
authority
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and power of the Company under this Agreement, whether with respect to
the Mortgage Loans or otherwise, shall pass to and be vested in a
successor Company appointed by the Xxxxxx Brothers Holdings and the
Master Servicer. Upon written request from the Seller, the Company
shall prepare, execute and deliver to the successor entity designated
by the Seller 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, including but not limited to
the transfer and endorsement or assignment of the Mortgage Loans and
related documents, at the Company's sole expense. The Company shall
cooperate with Xxxxxx Brothers Holdings and the Master Servicer and
such successor in effecting the termination of the Company's
responsibilities and rights hereunder, 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
Custodial Account or Escrow Account or thereafter received with
respect to the Mortgage Loans.
30. The parties hereto acknowledge that the word "Owner" in Section 9.02
(Waiver of Defaults) shall refer to the "Master Servicer with the prior
consent of the Trustee."
31. Section 10.02 (Termination Without Cause) is hereby amended by replacing
the first paragraph thereof with the following paragraphs:
Section 10.02 Termination Without Cause.
This Agreement shall terminate upon: (i) the later of (a)
the distribution of the final payment or liquidation proceeds on the
last Mortgage Loan to the Trust Fund (or advances by the Company for
the same), and (b) the disposition of all REO Property acquired upon
foreclosure of the last Mortgage Loan and the remittance of all funds
due hereunder, or (ii) mutual consent of the Company, Xxxxxx Brothers
Holdings and the Master Servicer in writing or (iii) at the sole
option of the Xxxxxx Brothers Holdings, without cause, upon 30 days
written notice. Any such notice of termination shall be in writing and
delivered to the Company by registered mail to the address set forth
at the beginning of this Agreement. The Master Servicer, the Trustee
and the Company shall comply with the termination procedures set forth
in Article X.
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In connection with any such termination referred to in
clause (ii) above, Xxxxxx Brothers Holdings will be responsible for
reimbursing the Company for all unreimbursed out-of-pocket Servicing
Advances within 15 Business Days following the date of termination and
other reasonable and necessary out-of-pocket costs associated with any
transfer of servicing.
In connection with any such termination referred to in
clause (iii) above, Xxxxxx Brothers Holdings will be responsible for
paying a sum, as liquidated damages, in an amount equal to (I) two
percent (2%) of the aggregate Assumed Principal Balance of the
Mortgage Loans (as defined herein) if such written notice is received
by the Company on or before the Business Day five years from the date
such Mortgage Loans were sold by the Company to Xxxxxx Brothers
Holdings or (II) one percent (1%) of the aggregate Assumed Principal
Balance of the Mortgage Loans if such written notice is received by
the Company after the Business Day five years from the date such
Mortgage Loans were sold by the Company to Xxxxxx Brothers Holdings
(either amount shall be referred to as "Liquidated Damages").
32. Section 11.01 (Successor to the 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
8.03, 9.01 or 10.01(a)(ii), 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 (iii) 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, Xxxxxx Brothers
Holdings, the Trustee and each Rating Agency (as such term is defined
in the Trust Agreement). Unless the successor servicer is at that time
a servicer of other mortgage loans for the Trust Fund, each Rating
Agency must deliver to the Trustee a letter to the effect that such
transfer of servicing will not result in a qualification, withdrawal
or downgrade of the then-current rating of any of the Certificates. In
connection with such appointment and assumption, the Master Servicer
or Xxxxxx Brothers Bank, 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
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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 11.01 and shall in no event relieve the Company of the
representations and warranties made pursuant to Article III 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 Custodial Account or any Escrow Account
or thereafter received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Company and the Master
Servicer an instrument (i) accepting such appointment, wherein the
successor shall make an assumption of the due and punctual performance
and observance of each covenant and condition to be performed and
observed by the 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 10.01 or 10.02 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.
Within three (3) Business Days of the appointment of a
successor servicer, the Company shall deliver to the successor
servicer the funds in the Custodial Account and Escrow Account and all
Mortgage Loan Documents and related documents and statements held by
it hereunder 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.
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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 Company from its own funds without reimbursement.
33. A new Section 11.14 is hereby added to read as follows:
Section 11.14 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,
the Depositor 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, the Depositor and the Trustee as
if they were parties to this Agreement, and the Master Servicer, the
Depositor 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, the Depositor 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.
34. Section 2(a) of Amendment Reg AB (Intent of the Parties; Reasonableness) is
hereby amended as follows:
(a) The first paragraph of such subsection is amended by (1) replacing
the words "the Purchaser and any Depositor" with "the Trust Fund, the
Depositor, the Trustee and the Master Servicer" and (2) by replacing
the words "the Purchaser or any Depositor" with "the Trust Fund, the
Depositor, the Trustee or the Master Servicer"; and
(b) The second paragraph of such subsection is amended by (1)
replacing the words "Neither the Purchaser nor any Depositor" with
"None of the Trust Fund, the Depositor, the Trustee and the Master
Servicer," (2) by replacing the words
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"xxx Xxxxxxxxx or any Depositor" with "the Trust Fund, the Depositor,
the Trustee or the Master Servicer" in each instance, (3) by replacing
the words "the Purchaser to deliver to the Purchaser (including any of
its assignees or designees) and any Depositor" with "the Trust Fund,
the Depositor, the Trustee or the Master Servicer to deliver to such
party (including any of its assignees or designees)," and (4) by
replacing the words "the Purchaser or such Depositor" with "the Trust
Fund, the Depositor, the Trustee or the Master Servicer."
35. Section 2(b) of Amendment Reg AB (Additional Representations and Warranties
of the Company) is hereby amended as follows:
(a) by replacing the words "the Purchaser and to any Depositor" with
"the Trust Fund, the Depositor, the Trustee and the Master Servicer"
in each instance;
(b) by replacing the words "the Purchaser or any Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in each
instance;
(c) by replacing the words "the Purchaser or such Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in each
instance; and
(d) by replacing the words "by the related Depositor" with "by the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in each
instance.
(e) by replacing in its entirety the words in subsection (vii) of
Section (b)(i) of Amendment Reg AB with the words "there are no
affiliations, relationships or transactions of a type described in
Item 1119 of Regulation AB relating to the Company or any Subservicer
with respect to any party listed on Exhibit F hereto."
36. Section 2(c) (Information to Be Provided by the Company) is hereby amended
as follows:
(a) by replacing the words "the Purchaser or any Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in each
instance;
(b) by replacing the words "the Purchaser and such Depositor" with
"the Trust Fund, the Depositor, the Trustee and the Master Servicer"
in each instance;
(c) by replacing the words "the Purchaser and any Depositor" with "the
Trust Fund, the Depositor, the Trustee and the Master Servicer" in
each instance;
(d) by replacing the words "the Purchaser or Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in each
instance;
(e) by replacing the words "the Purchaser or the Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in each
instance; and
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(f) by replacing the words "the Purchaser or such Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in each
instance.
(g) by replacing the words in subsection (D) of Section 2(c) of
Amendment Reg AB with the words "a description of any affiliation or
relationship between the Company, each Subservicer and any of the
parties listed on Exhibit F hereto."
37. Section 2(d) of Amendment Reg AB (Servicer Compliance Statement) is hereby
amended by replacing the words "the Purchaser and the Depositor" and the
words "the Purchaser and such Depositor" with "the Trust Fund, the
Depositor, the Trustee and the Master Servicer" in each instance.
38. Section 2(e) of Amendment Reg AB (Report on Assessment of Compliance and
Attestation) is hereby amended as follows:
(a) the first paragraph after subparagraph (D) of such section is
hereby amended by (1) replacing the words "Neither the Purchaser nor
any Depositor" with "None of the Trust Fund, the Depositor, the
Trustee and the Master Servicer" and (2) replacing the words "unless a
Depositor" with "unless such party";
(b) by replacing the words "each of the Servicing Criteria specified
on a certification substantially in the form of Exhibit B hereto
delivered to the Purchaser concurrently with the execution of this
Agreement" in both instances with "all of the Servicing Criteria
specified on Exhibit B hereto;"
(c) by replacing the words "the Purchaser and any Depositor" with "the
Trust Fund, the Depositor, the Trustee and the Master Servicer" in
each instance;
(d) by replacing the words "the Purchaser and such Depositor" with
"the Trust Fund, the Depositor, the Trustee and the Master Servicer"
in each instance;
(e) by replacing the words "the Purchaser or any Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in each
instance; and
(f) by replacing the words "the Purchaser, any Depositor and any other
Person" with "the Trust Fund, the Depositor, the Trustee, the Master
Servicer and any other Person" in each instance.
39. Section 2(f) of Amendment Reg AB (Use of Subservicers and Subcontractors)
is hereby amended as follows:
(a) by replacing the words "the Purchaser or any Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in each
instance;
(b) by replacing the words "the Purchaser and any Depositor" with "the
Trust Fund, the Depositor, the Trustee and the Master Servicer" in
each instance; and
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(c) by replacing the words "the Purchaser and such Depositor" with
"the Trust Fund, the Depositor, the Trustee and the Master Servicer" in
each instance.
40. Section 2(g) (Indemnification) is hereby amended as follows:
(a) by replacing the words "the Purchaser, any Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in each
instance;
(d) by replacing the words "the Purchaser or Depositor" with "the
Trust Fund, the Depositor, the Trustee or the Master Servicer" in each
instance; and
(c) by replacing the words "Neither the Purchaser nor any Depositor"
with "None of the Trust Fund, the Depositor, the Trustee and the Master
Servicer" in each instance.
41. Exhibit B of Amendment Reg AB (Servicing Criteria to be Addressed in
Assessment of Compliance) is hereby replaced in its entirety with the
following:
EXHIBIT B
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
---------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
---------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or X
other triggers and events of default in accordance with the transaction
agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, X
policies and procedures are instituted to monitor the third party's
performance and compliance with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up
servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the X
party participating in the servicing function throughout the reporting
period in the amount of coverage required by and otherwise in
accordance with the terms of the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial X
bank accounts and related bank clearing accounts no more than two
business days following receipt, or such other number of days specified
in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an X
investor are made only by authorized personnel.
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APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
---------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
---------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or X
distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts X
or accounts established as a form of overcollateralization, are
separately maintained (e.g., with respect to commingling of cash) as
set forth in the transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository X
institution as set forth in the transaction agreements. For purposes of
this criterion, "federally insured depository institution" with respect
to a foreign financial institution means a foreign financial
institution that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed X
securities related bank accounts, including custodial accounts and
related bank clearing accounts. These reconciliations are (A)
mathematically accurate; (B) prepared within 30 calendar days after the
bank statement cutoff date, or such other number of days specified in
the transaction agreements; (C) reviewed and approved by someone other
than the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original identification, or
such other number of days specified in the transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, X
are maintained in accordance with the transaction agreements and
applicable Commission requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms set forth in the
transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and regulations;
and (D) agree with investors' or the trustee's records as to the total
unpaid principal balance and number of mortgage loans serviced by the
Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with X
timeframes, distribution priority and other terms set forth in the
transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days X
to the Servicer's investor records, or such other number of days
specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with X
cancelled checks, or other form of payment, or custodial bank
statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by X
the transaction agreements or related mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the X
transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, X
reviewed and approved in accordance with any conditions or requirements
in the transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance X
with the related mortgage loan documents are posted to the Servicer's
obligor records maintained no more than two business days after
receipt, or such other number of days specified in the transaction
agreements, and allocated to principal, interest or other items (e.g.,
escrow) in accordance with the related mortgage loan documents.
A-19
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
---------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
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1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the X
Servicer's records with respect to an obligor's unpaid principal
balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage X
loans (e.g., loan modifications or re-agings) are made, reviewed and
approved by authorized personnel in accordance with the transaction
agreements and related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, X
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded in
accordance with the timeframes or other requirements established by the
transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period X
a mortgage loan is delinquent in accordance with the transaction
agreements. Such records are maintained on at least a monthly basis, or
such other period specified in the transaction agreements, and describe
the entity's activities in monitoring delinquent mortgage loans
including, for example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary (e.g., illness or
unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans X
with variable rates are computed based on the related mortgage loan
documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow X
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis, or such
other period specified in the transaction agreements; (B) interest on
such funds is paid, or credited, to obligors in accordance with
applicable mortgage loan documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full repayment
of the related mortgage loans, or such other number of days specified
in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance X
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the servicer
at least 30 calendar days prior to these dates, or such other number of
days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on X
behalf of an obligor are paid from the servicer's funds and not charged
to the obligor, unless the late payment was due to the obligor's error
or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two X
business days to the obligor's records maintained by the servicer, or
such other number of days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized X
and recorded in accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as
set forth in the transaction agreements.
A-20
EXHIBIT B
Sale and Servicing Agreement
See Exhibit 99.8
B-1
EXHIBIT C
Mortgage Loan Schedule
[Intentionally Omitted]
C-1
EXHIBIT D
[Reserved]
E-1
EXHIBIT E
Assignment and Assumption Agreement
[Intentionally Omitted]
E-2
EXHIBIT F
TRANSACTION PARTIES
Trustee: U.S. Bank National Association
Securities Administrator: N/A
Master Servicer: Aurora Loan Services LLC
Credit Risk Manager: N/A
PMI Insurer: N/A
Interest Rate Swap Counterparty: N/A
Interest Rate Cap Counterparty: Xxxxxx Brothers Special Financing Inc.
Servicers: Aurora Loan Services LLC, Bank of America, National Association,
Countrywide Home Loans Servicing LP, GMAC Mortgage Corporation, IndyMac Bank,
F.S.B, SunTrust Mortgage, Inc. and Xxxxx Fargo Bank, N.A.
Originators: Aurora Loan Services LLC, Bank of America, National Association,
Countrywide Home Loans, Inc., GMAC Mortgage Corporation, IndyMac Bank, F.S.B,
SunTrust Mortgage, Inc. and Xxxxx Fargo Bank, N.A.
Custodian: Deutsche Bank National Trust Company, LaSalle Bank National
Association, U.S. Bank National Association and Xxxxx Fargo Bank, N.A.
Seller: Xxxxxx Brothers Holdings Inc.
E-1
