Exhibit 99.9
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"),
INDYMAC BANK, F.S.B., a Federal Savings Bank (the "Servicer"), and acknowledged
by AURORA LOAN SERVICES LLC, a Delaware limited liability company ("Aurora"),
and U.S. BANK NATIONAL ASSOCIATION, solely in its capacity as trustee (in such
capacity, the "Trustee") under the Trust Agreement (as defined below), recites
and provides as follows:
RECITALS
WHEREAS, Xxxxxx Capital, a division of Xxxxxx Brothers Holdings Inc.,
acquired certain fixed and adjustable rate, conventional, first lien,
residential mortgage loans from the Servicer pursuant to the Seller's Warranties
and Servicing Agreement between the Bank and the Servicer, dated as of September
1, 2005 for Conventional Residential Fixed and Adjustable Rate Mortgage Loans
(Group No. 2005-1) (the "SWSA") attached hereto as Exhibit B.
WHEREAS, the Seller has conveyed the mortgage loans identified on
Exhibit D hereto (the "Serviced Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO"), which in turn has
conveyed the Serviced Mortgage Loans to the Trustee, pursuant to a trust
agreement, dated as of June 1, 2006 (the "Trust Agreement"), among the Trustee,
Aurora, as master servicer ("Aurora," and, together with any successor master
servicer appointed pursuant to the provisions of the Trust Agreement, the
"Master Servicer") and SASCO.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by
the Servicer pursuant to the SWSA.
WHEREAS, the Seller desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Seller and the Master Servicer to terminate the rights and
obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the
SWSA shall apply to the Serviced Mortgage Loans, but only to the extent provided
herein and that this Agreement shall govern the Serviced Mortgage Loans for so
long as such Serviced Mortgage Loans remain subject to the provisions of the
Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall
be obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right, under certain
circumstances, to terminate the rights and obligations of the Servicer under
this Agreement.
WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller and the Servicer hereby
agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this Agreement,
including Exhibit A hereto and any provisions of the SWSA incorporated by
reference herein (regardless of whether such terms are defined in the SWSA),
shall have the meanings ascribed to such terms in the Trust Agreement.
2. Custodianship. The parties hereto acknowledge that Deutsche Bank
National Trust Company will act as custodian of the Mortgage Loan Documents for
the Trustee pursuant to a Custodial Agreement, dated June 1, 2006, between
Deutsche Bank National Trust Company and the Trustee.
3. Servicing. The Servicer agrees, with respect to the Serviced Mortgage
Loans, to perform and observe the duties, responsibilities and obligations that
are to be performed and observed under the provisions of the SWSA, except as
otherwise provided herein and on Exhibit A hereto, and that the provisions of
the SWSA, as so modified, are and shall be a part of this Agreement to the same
extent as if set forth herein in full.
4. Trust Cut-off Date. The parties hereto acknowledge that by operation of
Section 4.05 and Section 5.01 of the SWSA, the remittance on July 18, 2006 to
the Trust Fund is to include principal due after June 1, 2006 (the "Trust
Cut-off Date") plus interest, at the Mortgage Loan Remittance Rate collected
during the related Due Period exclusive of any portion thereof allocable to a
period prior to the Trust Cut-off Date, with the adjustments specified in
clauses (b), (c), (d) and (e) of Section 5.01 of the SWSA.
5. Master Servicing; Termination of Servicer. The Servicer, including any
successor servicer hereunder, shall be subject to the supervision of the Master
Servicer, which Master Servicer shall be obligated to ensure that the Servicer
services the Serviced Mortgage Loans in accordance with the provisions of this
Agreement. The Master Servicer, acting on behalf of the Trustee and the LXS
2006-10N Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement,
shall have the same rights as the Seller under the SWSA to enforce the
obligations of the Servicer under the SWSA and the term "Purchaser" as used in
the SWSA in connection with any rights of the Purchaser shall refer to the Trust
Fund or, as the context requires, the Master Servicer acting in its capacity as
agent for the Trust Fund, except as otherwise specified in Exhibit A hereto. The
Master Servicer shall be entitled to terminate the rights and obligations of the
Servicer under this Agreement upon the failure of the Servicer to perform any of
its obligations under this Agreement, which failure results in an Event of
Default as provided in Section 10.01 of the SWSA. Notwithstanding anything
herein to the contrary, in no event shall the Master Servicer assume any of the
obligations of the Seller under the SWSA and in connection with the performance
of the Master Servicer's duties hereunder the parties and other signatories
hereto agree that the Master Servicer shall be entitled to all of the rights,
protections and limitations of liability afforded to the Master Servicer under
the Trust Agreement.
6. No Representations. Neither the Servicer nor the Master Servicer shall
be obligated or required to make any representations and warranties regarding
the characteristics of the Serviced Mortgage Loans (other than those
representations and warranties made by the Servicer in Section 3.02 of the SWSA)
in connection with the transactions contemplated by the Trust Agreement and
issuance of the Certificates issued pursuant thereto.
7. Notices. All notices and communications between or among the parties
hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may
designate to the other parties in writing, from time to time, other addresses to
which notices and communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under this
Agreement shall be delivered to the Master Servicer at the following address:
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Attn: Xxxxxx X. Xxxxxx - Master Servicing
LXS 0000-00X
Tel: 000-000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
JPMorgan Chase Bank, N.A.
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services LLC,
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: LXS 2006-10N
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
U.S. Bank National Association
0 Xxxxxxx Xxxxxx
Xxxxxx, X.X. 00000
Reference: LXS 2006-10N
Attention: Corporate Trust Services
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller, at the following address:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert, LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder shall
be delivered to its office at the address for notices as set forth in the SWSA.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR
OTHER CHOICE OF LAW RULES TO THE CONTRARY.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
10. NIMS Insurer. In addition to the terms and conditions set forth in this
Agreement, any and all rights of the Master Servicer and Trustee to receive
notices from the Servicer pursuant to this Agreement shall hereby be equally
granted to the NIMS Insurer. The Master Servicer, the Seller or the Trustee
shall notify the Servicer in writing of the name and address of the NIMS insurer
and the name and telephone number of the appropriate contact employee of the
NIMS Insurer. For any and all obligations of the Servicer to obtain consent from
the Master Servicer and the Trustee pursuant to this Agreement, the Servicer
must also obtain such consent from the NIMS Insurer. Notwithstanding any other
provision in this Agreement, the Trust Fund shall hold harmless and indemnify
the Servicer for any failure of the NIMS Insurer to comply with the provisions
of this Agreement. Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in furtherance of the
intent of such parties as set forth herein, that the NIMS Insurer receive the
benefit of the provisions of this Agreement as an intended third party
beneficiary of this Agreement to the extent of such provisions. The Servicer
shall have the same obligations to the NIMS Insurer as if it was a party to this
Agreement, and the NIMS Insurer shall have the same rights and remedies to
enforce the provisions of this Agreement as if it was a party to this Agreement.
The parties hereto agree to cooperate in good faith to amend this Agreement in
accordance with the terms hereof to include such other provisions as may be
reasonably requested by the NIMS Insurer. Notwithstanding the foregoing, all
rights of the NIMS Insurer set forth in this Agreement shall exist only so long
as the NIM Securities issued pursuant to the NIMS Transaction remain outstanding
or the NIMS Insurer is owed amounts in respect of its guarantee of payment on
such NIM Securities.
"NIM Security" shall mean any net interest margin security issued by
an owner trust or special purpose entity that is holding all rights, title and
interest in and to the Class 1-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.
11. Distressed Mortgage Loans. The NIMS Insurer may, at its option,
purchase a Distressed Mortgage Loan; provided, however, prior to any such
purchase, the Servicer shall be required to continue to make Monthly Advances
with respect to such Distressed Mortgage Loans, to the extent required by the
applicable servicing provisions in the SWSA. Any such purchase shall be
accomplished by: (A) remittance to the Master Servicer of the Purchase Price (as
defined in the Trust Agreement) for the Distressed Mortgage Loan for deposit
into the Collection Account established by the Master Servicer pursuant to the
Trust Agreement, and (B) the NIMS Insurer's (i) acknowledgment and agreement to
retain Servicer, as the servicer for any such purchased Distressed Mortgage
Loan, to service such Distressed Mortgage Loan pursuant to the provisions of the
SWSA, and (ii) assumption, for the benefit of the Servicer, the rights and
obligations of the Trust Fund as owner of such purchased Distressed Mortgage
Loans pursuant to the SWSA. The Trustee and the Servicer shall immediately
effectuate the conveyance of the purchased Distressed Mortgage Loans to the NIMS
Insurer exercising the purchase option, including prompt delivery of the
Servicing File and all related documentation to the applicable NIMS Insurer. A
Distressed Mortgage Loan is as of any Determination Date a Mortgage Loan that is
delinquent in payment for a period of ninety (90) days or more, without giving
effect to any grace period permitted by the related Mortgage Loan, or for which
the Servicer or Trustee has accepted a deed in lieu of foreclosure.
12. Reg AB Compliance Issues. Except as disclosed in writing to the Seller,
the Master Servicer, the Depositor and the Trustee prior to the Closing Date:
(i) the Company is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any other
securitization due to any act or failure to act of the Company; (ii) the Company
has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (iii) no material noncompliance with the
applicable servicing criteria with respect to other securitizations of
residential mortgage loans involving the Company as servicer has been disclosed
or reported by the Company; (iv) no material changes to the Company's policies
or procedures with respect to the servicing function it will perform under this
Agreement for mortgage loans of a type similar to the Mortgage Loans have
occurred during the three-year period immediately preceding the Closing Date;
(v) there are no aspects of the Company's financial condition that could have a
material adverse effect on the performance by the Company of its servicing
obligations under this Agreement and (vi) there are no affiliations,
relationships or transactions relating to the Company or any Subservicer with
any party listed on Exhibit F hereto.
[SIGNATURE PAGES IMMEDIATELY FOLLOW]
Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
INDYMAC BANK, F.S.B.,
as Servicer
By:
------------------------------------
Name:
Title:
Acknowledged:
AURORA LOAN SERVICES LLC,
as Master Servicer
By:
---------------------------------
Name: 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 SWSA
1. Unless otherwise specified herein, any provisions of the SWSA, including
definitions, relating to (i) representations and warranties relating to the
Mortgage Loans and not relating to the servicing of the Mortgage Loans,
(ii) Mortgage Loan repurchase obligations, (iii) Whole Loan and
Pass-Through Transfers and Reconstitution, and (iv) Assignments of
Mortgage, shall be disregarded for purposes relating to this Agreement.
2. The definition of "Determination Date" in Article I is hereby amended and
restated in its entirety to read as follows:
Determination Date: With respect to each Remittance Date, the 15th day
of the month in which such Remittance Date occurs, or, if such 15th
day is not a Business Day, the succeeding Business Day.
3. The definition of "Eligible Investments" in Article I is hereby amended and
restated in its entirety to read as follows:
Eligible Investments: Any one or more of the obligations and
securities listed below which investment provides for a date of
maturity not later than the Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in, certificates
of deposits of, or bankers' acceptances issued by, any depository
institution or trust company (including U.S. subsidiaries of foreign
depositories and the Trustee or any agent of the Trustee, acting in
its respective commercial capacity) incorporated or organized under
the laws of the United States of America or any state thereof and
subject to supervision and examination by federal or state banking
authorities, so long as at the time of investment or the contractual
commitment providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the commercial
paper or other short-term debt or deposit obligations of such holding
company or deposit institution, as the case may be) have been rated by
each Rating Agency in its highest short-term rating category or one of
its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct Obligations
or securities guaranteed by Xxxxxx Xxx, Xxxxxx Xxx or Xxxxxxx Mac with
any registered broker/dealer subject to Securities Investors'
Protection Corporation jurisdiction or any commercial bank insured by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured
and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
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(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of
America or any state thereof which have a credit rating from each
Rating Agency, at the time of investment or the contractual commitment
providing for such investment, at least equal to one of the two
highest long-term credit rating categories of each Rating Agency;
provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the aggregate principal balance of
the Mortgage Loans; provided, further, that such securities will not
be Eligible Investments if they are published as being under review
with negative implications from any Rating Agency;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date of
issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on behalf
of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current rating
by each Rating Agency of any of the Certificates. Such investments in
this subsection (viii) may include money market mutual funds or common
trust funds, including any fund for which the Trustee, the Master
Servicer or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (x) the Trustee, the Master
Servicer or an affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (y) the Trustee, the
Master Servicer or an affiliate thereof charges and collects fees and
expenses for services rendered pursuant to this Agreement, and (z)
services performed for such funds and pursuant to this Agreement may
converge at any time; provided, however, that no such instrument shall
be an Eligible Investment if such instrument evidences either (i) a
right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and
interest payments derived from obligations underlying such instrument
and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the
yield to maturity at par of such underlying obligations.
4. A definition of "Xxxxxx Mae" is hereby added to Article I to immediately
follow the definition of "Xxxxxxx Mac," to read as follows:
Xxxxxx Mae: The Government National Mortgage Association, or any
successor thereto.
5. The definition of "Mortgage Loan" is hereby amended and restated in its
entirety to read as follows:
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Mortgage Loan: An individual servicing retained Mortgage Loan which
has been purchased from the Servicer by Xxxxxx Brothers Bank, FSB and
is subject to this Agreement being identified on the Mortgage Loan
Schedule to this Agreement, which Mortgage Loan includes without
limitation the Mortgage Loan documents, the monthly reports, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits,
proceeds and obligations arising from or in connection with such
Mortgage Loan.
6. The definition of "Mortgage Loan Schedule" in Article I is hereby amended
and restated in its entirety to read as follows:
Mortgage Loan Schedule: The schedule of Mortgage Loans attached as
Exhibit C to this Agreement setting forth certain information with
respect to the Mortgage Loans purchased from the Servicer by Xxxxxx
Brothers Bank, FSB pursuant to the Purchase Agreement.
7. The definition of "Qualified Depository" in Article I is hereby amended and
restated in its entirety to read as follows:
Qualified Depository: Any of (i) a federal or state-chartered
depository institution or trust company the accounts of which are
insured by the FDIC and whose commercial paper, short-term debt
obligations or other short-term deposits are rated at least "A-1+" by
Standard & Poor's, or whose long-term unsecured debt obligations are
rated at least "AA-" by Standard & Poor's if the amounts on deposit
are to be held in the account for no more than 365 days or whose
commercial paper, short-term debt obligations, demand deposits, or
other short-term deposits are rated at least "A-2" by Standard &
Poor's if the amounts on deposit are to be held in the account for no
more than 30 days and are not intended to be used as credit
enhancement , or (ii) the corporate trust department of a federal or
state-chartered depository institution subject to regulations
regarding fiduciary funds on deposit similar to Title 12 of the Code
of Federal Regulations, which has corporate trust powers, acting in
its fiduciary capacity, or (iii) Xxxxxx Brothers Bank, F.S.B., a
federal savings bank.
8. A new definition of "Qualified GIC" is hereby added to Article I to
immediately follow the definition of "Qualified Depository", to read as
follows:
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Custodial Account and
insuring a minimum, fixed or floating rate of return on investments of
such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other corporation
whose long-term debt is rated by each Rating Agency in one of its two
highest rating categories or, if such insurance company has no
long-term debt, whose claims paying ability is rated by each Rating
Agency in one of its two highest rating categories, and whose
short-term debt is rated by each Rating Agency in its highest rating
category;
(b) provide that the Servicer may exercise all of the rights under
such contract or surety bond without the necessity of taking any
action by any other Person;
(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
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contract of funds would result in a downgrading of any rating of the
Servicer, the Servicer shall terminate such contract without penalty
and be entitled to the return of all funds previously invested
thereunder, together with accrued interest thereon at the interest
rate provided under such contract to the date of delivery of such
funds to the Trustee;
(d) provide that the Servicer's interest therein shall be transferable
to any successor Servicer or the Master Servicer hereunder; and
(e) provide that the funds reinvested thereunder and accrued interest
thereon be returnable to the Custodial Account, as the case may be,
not later than the Business Day prior to any Determination Date.
9. A new definition of "Realized Loss" is added to Article I immediately
following the definition of "Rating Agency" to read as follows:
Realized Loss: With respect to each Liquidated Mortgage Loan (as
defined in the Trust Agreement), an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation,
minus (ii) Liquidation Proceeds received, to the extent allocable to
principal, net of amounts that are reimbursable therefrom to the
Master Servicer or the Company with respect to such Mortgage Loan
(other than Monthly Advances of principal) including expenses of
liquidation.
10. The definition of "Regulation AB" in Article I is hereby amended and
restated in its entirety to read as follows:
Regulation AB: Subpart 229.1100-Asset Backed Securities (Regulation
AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed.
Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission,
or as may be provided by the Commission or its staff from time to
time.
11. The definition of "Servicing Fee Rate" in Article I is hereby amended and
restated in its entirety to read as follows:
Servicing Fee Rate: 0.375% per annum.
12. The parties acknowledge that the fourth paragraph of Section 2.02 (Books
and Records; Transfers of Mortgage Loans) shall be inapplicable to this
Agreement.
13. The parties acknowledge that Section 2.03 (Delivery of Documents) shall be
superseded by the provisions of the Custodial Agreement.
14. Section 3.01(c) (No Conflicts) is hereby amended by deleting the words "the
acquisition of the Mortgage Loans by the Company, the sale of the Mortgage
Loans to the Purchaser".
15. Section 3.01(f) (Ability to Perform) is hereby amended by deleting the
second and third sentences thereof.
16. Section 3.01(h) (No Consent Required) is hereby amended by deleting the
words "or the sale of the Mortgage Loans".
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17. Section 3.01(i) (Selection Process), Section 3.01(l) (Sale Treatment), and
Section 3.01(n) (No Brokers' Fees) shall be inapplicable to this Agreement.
18. Four new paragraphs are hereby added at the end of Section 3.01 (Company
Representations and Warranties) to read as follows:
It is understood and agreed that the representations and warranties
set forth in Section 3.01 (a) through (h) and (k) are hereby restated
as of the Closing Date and shall survive the engagement of the Company
to perform the servicing responsibilities hereunder and the delivery
of the Servicing Files to the Company and shall inure to the benefit
of the Trustee, the Trust Fund and the Master Servicer. Upon discovery
by either the Company, the Master Servicer or the Trustee of a breach
of any of the foregoing representations and warranties which
materially and adversely affects the ability of the Company to perform
its duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Mortgage Loans, the
Mortgaged Property or the priority of the security interest on such
Mortgaged Property or the interest of the Trustee or the Trust Fund,
the party discovering such breach shall give prompt written notice to
the other.
Within 60 days of the earlier of either discovery by or notice to the
Company of any breach of a representation or warranty set forth in
Section 3.01 which materially and adversely affects the ability of the
Company to perform its duties and obligations under this Agreement or
otherwise materially and adversely affects the value of the Loans, the
Mortgaged Property or the priority of the security interest on such
Mortgaged Property, the Company shall use its best efforts promptly to
cure such breach in all material respects and, if such breach cannot
be cured, the Company shall, at the Master Servicer's option, assign
the Company's rights and obligations under this Agreement (or
respecting the affected Loans) to a successor servicer selected by the
Master Servicer with the prior consent and approval of the Trustee.
Such assignment shall be made in accordance with Section 12.01.
In addition, the Company shall indemnify (from its own funds) the
Trustee, the Trust Fund and Master Servicer and hold each of them
harmless against any costs resulting from any claim, demand, defense
or assertion based on or grounded upon, or resulting from, a breach of
the Company's representations and warranties contained in this
Agreement. It is understood and agreed that the remedies set forth in
this Section 3.01 constitute the sole remedies of the Master Servicer,
the Trust Fund and the Trustee respecting a breach of the foregoing
representations and warranties.
Any cause of action against the Company relating to or arising out of
the breach of any representations and warranties made in Section 3.01
shall accrue upon (i) discovery of such breach by the Company or
notice thereof by the Trustee or Master Servicer to the Company, (ii)
failure by the Company to cure such breach within the applicable cure
period, and (iii) demand upon the Company by the Trustee or the Master
Servicer for compliance with this Agreement.
19. Section 4.01 (Company to Act as Servicer) is hereby amended as follows:
(i) by deleting the first, second, third and fourth sentences of the
second paragraph of such section and replacing it with the following:
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Consistent with the terms of this Agreement, the Company may waive,
modify or vary any term of any Mortgage Loan or consent to the
postponement of any such term or in any manner grant indulgence to any
Mortgagor if in the Company's reasonable and prudent determination
such waiver, modification, postponement or indulgence is not
materially adverse to the Purchaser, provided, however, that unless
the Mortgagor is in default with respect to the Mortgage Loan or such
default is, in the judgment of the Company, imminent, the Company
shall not permit any modification with respect to any Mortgage Loan
that would change the Mortgage Interest Rate, forgive the payment of
principal or interest, reduce or increase the outstanding principal
balance (except for actual payments of principal) or change the final
maturity date on such Mortgage Loan. Without limiting the generality
of the foregoing, the Company shall continue, and is hereby authorized
and empowered, to execute and deliver on behalf of itself and the
Purchasers, all instruments of satisfaction or cancellation, or of
partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to
the Mortgaged Properties; provided, further, that upon the full
release or discharge, the Company shall notify the related Custodian
of the related Mortgage Loan of such full release or discharge.
(ii) by adding the following to the end of the second paragraph of
such section:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Company shall
forward to the Master Servicer copies of any documents evidencing such
assumption, modification, consolidation or extension. Notwithstanding
anything to the contrary contained in this Agreement, the Company
shall not make or permit any modification, waiver or amendment of any
term of any Mortgage Loan that would cause any REMIC created under the
Trust Agreement to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d) of the
Code.
20. Section 4.04 (Establishment of and Deposits to Custodial Account) is hereby
amended as follows:
(i) by replacing the words "in trust for the Purchaser of Conventional
Residential Conventional Residential Fixed and Adjustable rate
Mortgage Loans, Group 2005-1 and various Mortgagors" in the fourth,
fifth and sixth lines of the first sentence of the first paragraph
with the words "in trust for LXS 2006-10N Trust Fund".
(ii) by replacing the words "on a daily basis" in the first sentence
of the second paragraph with the words "within two (2) Business Days
of receipt".
21. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by replacing the words from the word "Purchaser" in the sixth line
of clause (ii) to the end of such clause (ii) with the following:
the Trust Fund; provided however, that in the event that the Company
determines in good faith that any unreimbursed Monthly Advances will
not be recoverable from amounts representing late recoveries of
payments of principal or interest respecting the particular Mortgage
Loan as to which such Monthly Advance was made or from Liquidation
Proceeds or Insurance Proceeds with respect to such Mortgage Loan, the
Company may reimburse itself for such amounts from the Custodial
Account, it being understood, in the case of any such reimbursement,
that the Company's right thereto shall be prior to the rights of the
Trust Fund;
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22. Section 4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by deleting the words "Purchaser of Conventional Residential
Conventional Residential Fixed and Adjustable rate Mortgage Loans, Group
2005-1 and various Mortgagors" in the fourth, fifth and sixth lines of the
first sentence of the first paragraph, and replacing it with the following:
"in trust for LXS 2006-10N Trust Fund and various Mortgagors".
23. Section 4.16 (Title, Management and Disposition of REO Property) is hereby
amended by (i) replacing the reference to "one year" in the seventh line of
the third paragraph thereof with "three years", (ii) adding two new
paragraphs after the fourth paragraph thereof to read as follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan, the
Company shall dispose of such REO Property not later than the end of
the third taxable year after the year of its acquisition by the Trust
Fund unless the Company has applied for and received a grant of
extension from the Internal Revenue Service to the effect that, under
the REMIC Provisions and any relevant proposed legislation and under
applicable state law, the applicable Trust REMIC may hold REO Property
for a longer period without adversely affecting the REMIC status of
such REMIC or causing the imposition of a federal or state tax upon
such REMIC. If the Company has received such an extension, then the
Company shall continue to attempt to sell the REO Property for its
fair market value for such period longer than three years as such
extension permits (the "Extended Period"). If the Company has not
received such an extension and the Company is unable to sell the REO
Property within the period ending 3 months before the end of such
third taxable year after its acquisition by the Trust Fund or if the
Company has received such an extension, and the Company is unable to
sell the REO Property within the period ending three months before the
close of the Extended Period, the Company shall, before the end of the
three year period or the Extended Period, as applicable, (i) purchase
such REO Property at a price equal to the REO Property's fair market
value or (ii) auction the REO Property to the highest bidder (which
may be the Company) in an auction reasonably designed to produce a
fair price prior to the expiration of the three-year period or the
Extended Period, as the case may be. The Trustee shall sign any
document furnished by the Servicer or take any other action reasonably
requested by the Company which would enable the Company, on behalf of
the Trust Fund, to request such grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used by or on behalf of the Trust
Fund in such a manner or pursuant to any terms that would: (i) cause
such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code; or (ii) subject any
Trust REMIC to the imposition of any federal income taxes on the
income earned from such REO Property, including any taxes imposed by
reason of Sections 860F or 860G(c) of the Code, unless the Company has
agreed to indemnify and hold harmless the Trust Fund with respect to
the imposition of any such taxes.
(iii) replacing the word "advances" in the sixth line of the fifth
paragraph thereof with "Monthly Advances", and (iv) adding the following to
the end of such Section:
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
A-7
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.
24. Section 5.01 (Remittances) is hereby amended by replacing the word "second"
in the second paragraph of such Section with the word "first", and is
further amended by adding the following after the second paragraph of such
Section:
All remittances required to be made to the Master Servicer shall
be made to the following wire account or to such other account as may
be specified by the Master Servicer from time to time:
JPMorgan Chase Bank, N.A.
New York, New York
ABA #: 000-000-000
Account Name: Aurora Loan Services LLC
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: Aurora Loan Services LXS 2006-10N
25. Section 5.02 (Statements to Purchaser) is hereby amended and restated in
its entirety to read as follows:
Section 5.02 Statements to Master Servicer.
(a) The Company shall deliver or cause to be delivered to the
Master Servicer executed copies of the custodial and escrow account
letter agreements pursuant to Sections 4.04 and 4.06 within 30 days of
the Closing Date.
(b) Not later than the tenth calendar day of each month, the
Company shall furnish to the Master Servicer an electronic file
providing loan level accounting data for the period ending on the last
Business Day of the preceding month in a format mutually agreed to
between the Company and the Master Servicer.
(c) The Company shall promptly notify the Trustee, the NIMS
Insurer, the Master Servicer and the Depositor (i) of any legal
proceedings pending against the Company of the type described in Item
1117 (Section 229.1117) of Regulation AB and (ii) of any affiliation
or relationship (of a type described in Item 1119 of Regulation AB)
between the Company, each third-party originator, each subservicer
"participating in the servicing function" within the meaning of Item
1122 of Regulation AB and any of the parties listed on Exhibit F
hereto, and provide a description of such affiliation or relationship.
If so requested by the Trustee, the NIMS Insurer, the Master
Servicer or the Depositor on any date following the date on which
information was first provided to the Trustee, the NIMS Insurer, the
Master Servicer and the Depositor pursuant to the preceding sentence,
the Company shall, within five Business Days following such request,
confirm in writing the accuracy of the representations and warranties
set forth in Section 12 of the Reconstituted Servicing Agreement or,
if such a representation and
A-8
warranty is not accurate as of the date of such request, provide
reasonable adequate disclosure of the pertinent facts, in writing, to
the requesting party.
The Company shall provide to the Trustee, the NIMS Insurer, the
Master Servicer and the Depositor prompt notice of the occurrence of
any of the following: any event of default under the terms of this
Agreement, any merger, consolidation or sale of substantially all of
the assets of the Company, any material litigation involving the
Company, and any affiliation or other significant relationship between
the Company and other transaction parties.
(d) Not later than the tenth calendar day of each month (or if
such calendar day is not a Business Day, the immediately preceding
Business Day), the Company shall provide to the Trustee, the NIMS
Insurer, the Master Servicer and the Depositor notice of the
occurrence of any material modifications, extensions or waivers of
terms, fees, penalties or payments relating to the Mortgage Loans
during the related Due Period or that have cumulatively become
material over time (Item 1121(a)(11) of Regulation AB) along with all
information, data, and materials related thereto as may be required to
be included in the related Distribution Report on Form 10-D.
26. Section 6.04 (Annual Statement as to Compliance) is hereby amended by
replacing the words "The Company shall deliver to the Purchaser, (a) on or
before March 1, 2007, an Officer's Certificate, stating that" at the
beginning of the first sentence thereto with the words "The Company shall
deliver to the Master Servicer, the Trustee and the Depositor, (a) on or
before March 1, 2007, an Officer's Certificate in the form of Exhibit E
hereto, stating that".
27. Section 6.08 (Assessment of Servicing Compliance) is hereby amended by
adding the following sentence to the end of such Section:
"Such report shall be addressed to the Purchaser, the Master
Servicer and such Depositor and signed by an authorized officer of the
Company, and shall address each of the Servicing Criteria specified in
Exhibit G hereto".
28. A new Section 6.10 is hereby added to read as follows:
Section 6.10 Reporting Requirements of the Commission and
Indemnification.
Notwithstanding any other provision of this Agreement, the Company
acknowledges and agrees that the purpose of Sections 3.01(p), 5.02(c)
and (d), 6.03, 6.04, 6.08, 6.09 and 9.01 of this Agreement is to
facilitate compliance by the Trustee, the Master Servicer and the
Depositor with the provisions of Regulation AB. Therefore, the Company
agrees that (a) the obligations of the Company hereunder shall be
interpreted in such a manner as to accomplish that purpose, (b) such
obligations may change over time due to interpretive advice or
guidance of the Commission, convention or consensus among active
participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB,
(c) the Company shall agree to enter into such amendments to this
Agreement as may be necessary, in the judgment of the Depositor, the
Master Servicer and their respective counsel, to comply with such
interpretive advice or guidance, convention, consensus, advice of
counsel, or otherwise, (d) the Company shall otherwise comply with
requests made by the Trustee, the Master Servicer or the Depositor for
delivery of additional or different information as such parties may
determine in good faith is necessary to comply with the provisions of
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Regulation AB and (e) the Company shall (i) agree to such
modifications and enter into such amendments to this Agreement as may
be necessary, in the judgment of the Depositor, the Master Servicer
and their respective counsel, to comply with any such clarification,
interpretive guidance, convention or consensus and (ii) promptly upon
request provide to the Depositor for inclusion in any periodic report
required to be filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), such items of information regarding this
Agreement and matters related to the Company, (collectively, the
"Servicer Information"), provided that such information shall be
required to be provided by the Company only to the extent that such
shall be determined by the Depositor in its sole discretion and its
counsel to be necessary or advisable to comply with any Commission and
industry guidance and convention.
The Company hereby agrees to indemnify and hold harmless the
Depositor, the Master Servicer, their respective officers and
directors and each person, if any, who controls the Depositor or
Master Servicer within the meaning of Section 15 of the Securities Act
of 1933, as amended (the "Act"), or Section 20 of the Exchange Act,
from and against any and all losses, claims, expenses, damages or
liabilities to which the Depositor, the Master Servicer, their
respective officers or directors and any such controlling person may
become subject under the Act or otherwise, as and when such losses,
claims, expenses, damages or liabilities are incurred, insofar as such
losses, claims, expenses, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the
Servicer Information or arise out of, or are based upon, the omission
or alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, and
will reimburse the Depositor, the Master Servicer, their respective
officers and directors and any such controlling person for any legal
or other expenses reasonably incurred by it or any of them in
connection with investigating or defending any such loss, claim,
expense, damage, liability or action, as and when incurred; provided,
however, that the Company shall be liable only insofar as such untrue
statement or alleged untrue statement or omission or alleged omission
relates solely to the information in the Servicer Information
furnished to the Depositor or Master Servicer by or on behalf of the
Servicer specifically in connection with this Agreement.
29. Section 9.01 (Indemnification; Third Party Claims) is hereby amended in its
entirety to read as follows:
The Company shall indemnify the Purchaser, the Trust Fund, the Trustee
and the Master Servicer and hold each of them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any other
costs, fees and expenses that any of such parties may sustain in any
way related to (a) the failure of the Company to perform its duties
and service the Mortgage Loans in strict compliance with the terms of
this Agreement and (b) any failure by the Company, any Subservicer or
any Subcontractor to deliver any information, report, certification
accountants' letter or other material when and as required under this
Agreement, including any report under Sections 6.04, 6.05 and 6.08.
The Company immediately shall notify the Purchaser, the Master
Servicer and the Trustee or any other relevant party if a claim is
made by a third party with respect to this Agreement or the Mortgage
Loans, assume (with the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld or delayed)
the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay,
A-10
discharge and satisfy any judgment or decree which may be entered
against it or any of such parties in respect of such claim. The
Company shall follow any written instructions received from the
Trustee in connection with such claim. The Company shall provide the
Trustee with a written report of all expenses and advances incurred by
the Company pursuant to this Section 9.01, and the Trustee from the
assets of the Trust Fund promptly shall reimburse the Company for all
amounts advanced by it pursuant to the preceding sentence except when
the claim is in any way relates to the failure of the Company to
service and administer the Mortgage Loans in strict compliance with
the terms of this Agreement or the gross negligence, bad faith or
willful misconduct of this Company.
30. Section 9.03 (Limitation on Liability of Company and Others) is hereby
amended in its entirety to read as follows:
Neither the Company nor any of the directors, officers, employees or
agents of the Company shall be under any liability to the Master
Servicer, the Trustee, or the Certificateholders for any action taken
or for refraining from the taking of any action in good faith pursuant
to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Company or any such person
against any liability that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of its
duties or by reason of reckless disregard for its obligations and
duties under this Agreement. The Company and any director, officer,
employee or agent of the Company shall be entitled to indemnification
by the Trust Fund and will be held harmless against any loss,
liability or expense incurred in connection with any legal action
relating to this Agreement, the Trust Agreement, or the Certificates
other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of his
or its duties hereunder or by reason of reckless disregard of his or
its obligations and duties hereunder. The Company and any director,
officer, employee or agent of the Company may rely in good faith on
any document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder. The Company
shall be under no obligation to appear in, prosecute or defend any
legal action that is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and that in its
opinion may involve it in any expenses or liability; provided,
however, that the Company may in its sole discretion undertake any
such action that it may deem necessary or desirable in respect to this
Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund
and the Company shall be entitled to be reimbursed therefor out of the
Custodial Account it maintains as provided by Section 4.05.
31. Section 10.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master Servicer";
(b) amending and restating subclause (vii) in its entirety to read as
follows: "the Company at any time is neither a Xxxxxx Xxx or
Xxxxxxx Mac approved servicer, and the Master Servicer has not
terminated the rights and obligations of the Company under this
Agreement and replaced the Company with a Xxxxxx Xxx or Xxxxxxx
Mac approved servicer within 30 days of the absence of such
approval; or"; and
A-11
(c) replacing the period at the end of subclause (ix) with "; or" and
adding the following subclauses immediately thereafter:
(x) any failure by the Servicer to duly perform, within the
required time period, its obligations to provide any
certifications under Sections 6.03, 6.04 and 6.08, which failure
continues unremedied for a period of ten (10) days; or
(xi) any failure by the Servicer to duly perform, within the
required time period, its obligations to provide any other
information, data or materials required to be provided hereunder,
including any items required to be included in any Exchange Act
report.
32. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer".
33. Section 11.01 (Termination) is hereby amended by restating subclause (ii)
thereof to read as below and adding the following sentence after the first
sentence of Section 11.01:
(ii) mutual consent of the Company and the Trustee in writing,
provided such termination is also acceptable to the Master
Servicer and the Rating Agencies.
At the time of any termination of the Company pursuant to Section
11.01, the Company shall be entitled to all accrued and unpaid
Servicing Fees and unreimbursed Servicing Advances and Monthly
Advances; provided, however, in the event of a termination for cause
under Sections 10.01 hereof, such unreimbursed amounts shall not be
reimbursed to the Company until such amounts are received by the Trust
Fund from the related Mortgage Loans.
34. Section 11.02 (Termination Without Cause) is hereby amended by replacing
the first reference to "Purchaser" with "Xxxxxx Brothers Holdings" and by
replacing all other references to "Purchaser" with "Xxxxxx Brothers
Holdings."
35. Section 12.01 (Successor to Company) is hereby amended in its entirety to
read as follows:
Simultaneously with the termination of the Company's responsibilities
and duties under this Agreement pursuant to Sections 8.04, 10.01,
11.01(ii) or 11.02, the Master Servicer shall, in accordance with the
provisions of the Trust Agreement (i) succeed to and assume all of the
Company's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor meeting the eligibility
requirements of this Agreement, and which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of the
Company under this Agreement with the termination of the Company's
responsibilities, duties and liabilities under this Agreement. Any
successor to the Company that is not at that time a servicer of other
mortgage loans for the Trust Fund shall be subject to the approval of
the Master Servicer, the Purchaser, the Trustee and each Rating Agency
(as such term is defined in the Trust Agreement). Unless the successor
servicer is at that time a servicer of other mortgage loans for the
Trust Fund, each Rating Agency must deliver to the Trustee a letter to
the effect that such transfer of servicing will not result in a
qualification, withdrawal or downgrade of the then-current rating of
any of the Certificates. In connection with such appointment and
assumption, the Master Servicer or the Purchaser, as applicable, may
make such arrangements for the compensation of such successor out of
payments on the Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of
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that permitted the Company under this Agreement. In the event that the
Company's duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the aforementioned
sections, the Company shall discharge such duties and responsibilities
during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of
diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The
resignation or removal of the Company pursuant to the aforementioned
sections shall not become effective until a successor shall be
appointed pursuant to this Section 12.01 and shall in no event relieve
the Company of the representations and warranties made pursuant to
Sections 3.01 and 3.02 and the remedies available to the Trust Fund
under Section 3.03 shall be applicable to the Company notwithstanding
any such resignation or termination of the Company, or the termination
of this Agreement.
Within a reasonable period of time, but in no event longer than 30
days of the appointment of a successor entity, the Company shall
prepare, execute and deliver to the successor entity any and all
documents and other instruments, place in such successor's possession
all Servicing Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice
of termination. The Company shall cooperate with the Trustee and the
Master Servicer, as applicable, and such successor in effecting the
termination of the Company's responsibilities and rights hereunder and
the transfer of servicing responsibilities to the successor servicer,
including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be
credited by the Company to the Account or any Escrow Account or
thereafter received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Trustee, the Company and the Master Servicer an
instrument accepting such appointment, wherein the successor shall
make an assumption of the due and punctual performance and observance
of each covenant and condition to be performed and observed by the
Company under this Agreement, whereupon such successor shall become
fully vested with all the rights, powers, duties, responsibilities,
obligations and liabilities of the Company, with like effect as if
originally named as a party to this Agreement. Any termination or
resignation of the Company or termination of this Agreement pursuant
to Sections 8.04, 10.01, 11.01 or 11.02 shall not affect any claims
that the Master Servicer or the Trustee may have against the Company
arising out of the Company's actions or failure to act prior to any
such termination or resignation.
The Company shall deliver, within three (3) Business Days of the
appointment of a successor Servicer, the funds in the Custodial
Account and Escrow Account and all Collateral Files, Credit Files and
related documents and statements held by it hereunder to the successor
Servicer and the Company shall account for all funds and shall execute
and deliver such instruments and do such other things as may
reasonably be required to more fully and definitively vest in the
successor all such rights, powers, duties, responsibilities,
obligations and liabilities of the Company.
Upon a successor's acceptance of appointment as such, the Company
shall notify the Trustee and Master Servicer of such appointment in
accordance with the notice procedures set forth herein.
A-13
Except as otherwise provided in this Agreement, all reasonable costs
and expenses incurred in connection with any transfer of servicing
hereunder (whether as a result of termination or removal of the
Company or resignation of the Company or otherwise), including,
without limitation, the costs and expenses of the Master Servicer or
any other Person in appointing a successor servicer, or of the Master
Servicer in assuming the responsibilities of the Company hereunder, or
of transferring the Servicing Files and the other necessary data to
the successor servicer shall be paid by the terminated, removed or
resigning Servicer from its own funds without reimbursement.
36. Section 12.02 (Amendment) is hereby amended and restated in its entirety as
follows:
This Agreement may be amended from time to time by written agreement
signed by the Company and the Purchaser, with the written consent of
the Master Servicer and the Trustee.
37. Section 12.04 (Duration of Agreement) is hereby amended by deleting the
last sentence thereof.
38. Section 12.10 (Assignment by Purchaser) is hereby deleted in its entirety.
39. Section 12.11 (No Personal Solicitation) is hereby amended by replacing the
words "the Purchaser" with "Xxxxxx Brothers Holdings" in each instance.
40. A new Section 12.13 (Intended Third Party Beneficiaries) is hereby added to
read as follows:
Notwithstanding any provision herein to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the
intent of such parties as set forth herein, that the Master Servicer
and the Trustee receive the benefit of the provisions of this
Agreement as intended third party beneficiaries of this Agreement to
the extent of such provisions. The Company shall have the same
obligations to the Master Servicer and the Trustee as if they were
parties to this Agreement, and the Master Servicer and the Trustee
shall have the same rights and remedies to enforce the provisions of
this Agreement as if they were parties to this Agreement. The Company
shall only take direction from the Master Servicer (if direction by
the Master Servicer is required under this Agreement) unless otherwise
directed by this Agreement. Notwithstanding the foregoing, all rights
and obligations of the Master Servicer and the Trustee hereunder
(other than the right to indemnification) shall terminate upon
termination of the Trust Agreement and of the Trust Fund pursuant to
the Trust Agreement.
41. Each of Exhibit D-1 (Form of Custodial Account Certification) and Exhibit
E-1 (Form of Escrow Account Certification) is hereby amended to add a
second page thereto containing the following:
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number
__________, at the office of the Depository indicated above, and
agrees to honor withdrawals on such account as provided above.
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[DEPOSITORY],
as Depository
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
42. Exhibit J (Annual Certification) is hereby amended and restated in its
entirety to be identical to Exhibit H to this Agreement.
A-15
EXHIBIT B
SWSA
See Exhibit 99.10
B-1
EXHIBIT C
[Reserved]
C-1
EXHIBIT D
Schedule of Serviced Mortgage Loans
[Intentionally Omitted]
D-1
EXHIBIT E
ANNUAL CERTIFICATION
Structured Asset Securities Corporation
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Re: Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2006-10N
Reference is made to the Reconstituted Servicing Agreement, dated as of June 1,
2006 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc., as seller
and IndyMac Bank, F.S.B., as servicer (the "Servicer"). I, [identify the
certifying individual], a [title] of the Servicer hereby certify to Aurora Loan
Services LLC (the "Master Servicer") and Structured Asset Securities Corporation
(the "Depositor"), and their respective officers, directors and affiliates, and
with the knowledge and intent that they will rely upon this certification, that:
1. I have reviewed the information required to be delivered to the Master
Servicer pursuant to the Agreement (the "Servicing Information").
2. Based on my knowledge, the Servicing Information does not contain any
material untrue information or omit to state information necessary to make
the Servicing Information, in light of the circumstances under which such
information was provided, not misleading as of the date of this
certification;
3. Based on my knowledge, the Servicing Information has been provided to the
Master Servicer when and as required under the Agreement; and
4. I am responsible for reviewing the activities performed by the Servicer
under the Agreement, and based upon my knowledge and the review required
under the Agreement, and except as disclosed in writing to you on or prior
to the date of this certification either in the accountants' report
required under the Agreement or in disclosure a copy of which is attached
hereto, the Servicer has, for the period covered by the Form 10-K Annual
Report, fulfilled its obligations under this Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: By:
------------------------------ -----------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-1
EXHIBIT F
TRANSACTION PARTIES
Trustee: U.S. Bank National Association
Securities Administrator: N/A
Master Servicer: Aurora Loan Services LLC
Credit Risk Manager: N/A
PMI Insurer: N/A
Interest Rate Swap Counterparty: N/A
Interest Rate Cap Counterparty: Xxxxxx Brothers Special Financing Inc.
Servicers: Aurora Loan Services LLC, Bank of America, National Association,
Countrywide Home Loans Servicing LP, GMAC Mortgage Corporation, IndyMac Bank,
F.S.B, SunTrust Mortgage, Inc. and Xxxxx Fargo Bank, N.A.
Originators: Aurora Loan Services LLC, Bank of America, National Association,
Countrywide Home Loans, Inc., GMAC Mortgage Corporation, IndyMac Bank, F.S.B,
SunTrust Mortgage, Inc. and Xxxxx Fargo Bank, N.A.
Custodian: Deutsche Bank National Trust Company, LaSalle Bank National
Association, U.S. Bank National Association and Xxxxx Fargo Bank, N.A.
Seller: Xxxxxx Brothers Holdings Inc.
F-1
EXHIBIT G
FORM OF CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN
REPORT ON ASSESSMENT OF COMPLIANCE
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
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REFERENCE CRITERIA
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GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any X
performance or 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 X
parties, 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 X
on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of the
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate X
custodial bank accounts and related bank clearing accounts no
more than two business days following receipt, or such other
number of days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor X
or to an investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash X
flows or 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 X
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured X
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized X
access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset X
-backed securities related bank accounts, including custodial
accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date,
or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than
the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items
are resolved within 90 calendar days of their original
identification, or such other number of days specified in the
transaction agreements.
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APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
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REFERENCE CRITERIA
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INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the X
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance
with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and
regulations; and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and number
of mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in X
accordance with 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 X
business days 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 X
agree with 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 X
required by the transaction agreements or related mortgage
loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as X
required by the transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool X
are made, 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 X
accordance with the related mortgage loan documents are
posted to the Servicer's obligor records maintained no more
than two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree X
with the 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 X
mortgage loans (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
the transaction agreements and related pool asset documents.
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 X
the period a mortgage loan is delinquent in accordance with
the transaction agreements. Such records are maintained on at
least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling plans
in cases where delinquency is deemed temporary (e.g., illness
or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage X
loans with variable rates are computed based on the related
mortgage loan documents.
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APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
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REFERENCE CRITERIA
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1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as X
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number
of days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or X
insurance payments) are made on or before the related penalty
or expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior
to these dates, or such other number of days specified in the
transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to X
be made on behalf of an obligor are paid from the servicer's
funds and not charged to the obligor, unless the late payment
was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within X
two 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 X
recognized 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.
[NAME OF THE SERVICER] [NAME OF
SUBSERVICER/SUBCONTRACTOR]
Date:
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By:
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Name:
Title:
G-3
EXHIBIT H
[Date]
FORM OF ANNUAL CERTIFICATION
Re: The Reconstituted Servicing Agreement dated as of June 1, 2006 (the
"Agreement"), by and among Xxxxxx Brothers Holdings Inc., IndyMac
Bank, F.S.B. (the "Servicer")Aurora Loan Services LLC (the "Master
Servicer"), and acknowledged by U.S. Bank National Association, as
Trustee (the "Trustee").
I, [identify the certifying individual], the [title] of the
Servicer, certify to the Trustee, the Master Servicer and Structured Asset
Securities Corporation (the "Depositor"), and their officers, with the knowledge
and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), and all servicing reports,
officer's certificates and other information relating to the servicing of
the Mortgage Loans by the Servicer during 200[ ] that were delivered by the
Servicer to any of the Depositor, the Master Servicer, the Securities
Administrator, and the Trustee pursuant to the Agreement (collectively, the
"Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in the
light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the Depositor, the Master Servicer, the Securities
Administrator and the Trustee;
(4) I am responsible for reviewing the activities performed by the
Servicer as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Servicer has fulfilled its obligations under
the Agreement in all material respects; and
H-1
(5) The Compliance Statement required to be delivered by the Servicer
pursuant to the Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Servicer and by any Subservicer or
Subcontractor pursuant to the Agreement, have been provided to the
Depositor, the Master Servicer, the Securities Administrator and the
Trustee. Any material instances of noncompliance described in such reports
have been disclosed to the Depositor, the Master Servicer, the Securities
Administrator and the Trustee. Any material instance of noncompliance with
the Servicing Criteria has been disclosed in such reports.
Date:
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By:
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Name:
Title:
H-2
