EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"),
entered into as of the 1st day of October, 2005, by and between XXXXXX BROTHERS
HOLDINGS INC., a Delaware corporation (the "Seller" or "Xxxxxx Brothers
Holdings"), INDYMAC BANK, F.S.B., a Federal Savings Bank (the "Servicer"), and
acknowledged by AURORA LOAN SERVICES LLC, a Delaware limited liability company
("Aurora"), and U.S. BANK NATIONAL ASSOCIATION (the "Trustee"), recites and
provides as follows:
RECITALS
WHEREAS, Xxxxxx Capital, a division of Xxxxxx Brothers Holdings
Inc., acquired certain fixed and adjustable rate, conventional, first lien,
residential mortgage loans from the Servicer pursuant to the Seller's Warranties
and Servicing Agreement between the Bank and the Servicer, dated as of September
1, 2005 for Conventional Residential Fixed and Adjustable Rate Mortgage Loans
(Group No. 2005-1) (the "SWSA") attached hereto as Exhibit B.
WHEREAS, pursuant to an Assignment and Assumption Agreement,
dated October 1, 2005 (the "Assignment and Assumption Agreement") annexed as
Exhibit C hereto, the Seller acquired from Xxxxxx Brothers Bank, FSB (the
"Bank") all of the Bank's right, title and interest in and to the mortgage loans
currently serviced under the SWSA and assumed for the benefit of each of the
Servicer and the Bank the rights and obligations of the Bank as owner of such
mortgage loans pursuant to the SWSA.
WHEREAS, the Seller has conveyed the mortgage loans identified on
Exhibit D hereto (the "Serviced Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO"), which in turn has
conveyed the Serviced Mortgage Loans to the Trustee, pursuant to a trust
agreement, dated as of October 1, 2005 (the "Trust Agreement"), among the
Trustee, Aurora, as master servicer ("Aurora," and, together with any successor
master servicer appointed pursuant to the provisions of the Trust Agreement, the
"Master Servicer") and SASCO.
WHEREAS, the Serviced Mortgage Loans are currently being serviced
by the Servicer pursuant to the SWSA.
WHEREAS, the Seller desires that the Servicer continue to service
the Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to
the rights of the Seller and the Master Servicer to terminate the rights and
obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of
the SWSA shall apply to the Serviced Mortgage Loans, but only to the extent
provided herein and that this Agreement shall govern the Serviced Mortgage Loans
for so long as such Serviced Mortgage Loans remain subject to the provisions of
the Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer
shall be obligated, among other things, to supervise the servicing of the
Serviced Mortgage Loans on behalf of the Trustee, and shall have the right,
under certain circumstances, to terminate the rights and obligations of the
Servicer under this Agreement.
WHEREAS, the Seller and the Servicer intend that each of the
Master Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Seller and the Servicer
hereby agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the SWSA
incorporated by reference herein (regardless of whether such terms are defined
in the SWSA), shall have the meanings ascribed to such terms in the Trust
Agreement.
2. Custodianship. The parties hereto acknowledge that Deutsche Bank
National Trust Company will act as custodian of the Servicing Files for the
Trustee pursuant to a Custodial Agreement, dated October 1, 2005, 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 November 18,
2005 to the Trust Fund is to include principal due after October 1, 2005 (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 2005-5N Trust Fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as the Seller under the SWSA to enforce
the obligations of the Servicer under the SWSA and the term "Purchaser" as used
in the SWSA in connection with any rights of the Purchaser shall refer to the
Trust Fund or, as the context requires, the Master Servicer acting in its
capacity as agent for the Trust Fund, except as otherwise specified in Exhibit A
hereto. The Master Servicer shall be entitled to terminate the rights and
obligations of the Servicer under this Agreement upon the failure of the
Servicer to perform any of its obligations under this Agreement, which failure
results in an Event of Default as provided in Section 10.01 of the SWSA.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of the Seller under the SWSA and in
connection with the performance of the Master Servicer's duties hereunder the
parties and other signatories hereto agree that the Master Servicer shall be
entitled to all of the rights, protections and limitations of liability afforded
to the Master Servicer under the Trust Agreement.
6. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations and warranties
regarding the characteristics of the Serviced Mortgage Loans (other than those
representations and warranties made by the Servicer in Section 3.02 of the SWSA
hereby restated as of the date of the SWSA) in connection with the transactions
contemplated by the Trust Agreement and issuance of the Certificates issued
pursuant thereto.
7. Notices. All notices and communications between or among the parties
hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under
this Agreement shall be delivered to the Master Servicer at the following
address:
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Attn: E. Xxxx Xxxxxxxxxx - Master Servicing
LXS 2005-5N
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 2005-5N
All notices required to be delivered to the Trustee hereunder
shall be delivered to the Trustee at the following address:
U.S. Bank National Association
0 Xxxxxxx Xxxxxx
Xxxxxx, X.X. 00000
Attention: Corporate Trust Services
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All notices required to be delivered to the Seller hereunder
shall be delivered to the Seller, at the following address:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert, LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder
shall be delivered to its office at the address for notices as set forth in the
SWSA.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR
OTHER CHOICE OF LAW RULES TO THE CONTRARY.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
10.NIMS Insurer. In addition to the terms and conditions set forth in
this Agreement, any and all rights of the Master Servicer and Trustee to receive
notices from the Servicer pursuant to this Agreement shall hereby be equally
granted to the NIMS Insurer. The Master Servicer, the Seller or the Trustee
shall notify the Servicer in writing of the name and address of the NIMS insurer
and the name and telephone number of the appropriate contact employee of the
NIMS Insurer. For any and all obligations of the Servicer to obtain consent from
the Master Servicer and the Trustee pursuant to this Agreement, the Servicer
must also obtain such consent from the NIMS Insurer. Notwithstanding any other
provision in this Agreement, the Trust Fund shall hold harmless and indemnify
the Servicer for any failure of the NIMS Insurer to comply with the provisions
of this Agreement. Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in furtherance of the
intent of such parties as set forth herein, that the NIMS Insurer receive the
benefit of the provisions of this Agreement as an intended third party
beneficiary of this Agreement to the extent of such provisions. The Servicer
shall have the same obligations to the NIMS Insurer as if it was a party to this
Agreement, and the NIMS Insurer shall have the same rights and remedies to
enforce the provisions of this Agreement as if it was a party to this Agreement.
The parties hereto agree to cooperate in good faith to amend this Agreement in
accordance with the terms hereof to include such other provisions as may be
reasonably requested by the NIMS Insurer. Notwithstanding the foregoing, all
rights of the NIMS Insurer set forth in this Agreement shall exist only so long
as the NIM Securities issued pursuant to the NIMS Transaction remain outstanding
or the NIMS Insurer is owed amounts in respect of its guarantee of payment on
such NIM Securities.
NIM Security shall mean any net interest margin security issued
by an owner trust or special purpose entity that is holding all rights, title
and interest in and to the Class X Certificates issued by the Trust Fund.
NIMS Insurer shall mean collectively, any insurance companies
issuing a financial guaranty insurance policy covering certain payments to be
made on NIM Securities pursuant to a NIMS Transaction.
NIMS Transaction shall mean any transaction in which NIM
Securities are secured, in part, by the payments on the Class X Certificates
issued by the Trust Fund.
11.Distressed Mortgage Loans. The NIMS Insurer may, at its option,
purchase a Distressed Mortgage Loan; provided, however, prior to any such
purchase, the Servicer shall be required to continue to make Monthly Advances
with respect to such Distressed Mortgage Loans, to the extent required by the
applicable servicing provisions in the SWSA. Any such purchase shall be
accomplished by: (A) remittance to the Master Servicer of the Purchase Price (as
defined in the Trust Agreement) for the Distressed Mortgage Loan for deposit
into the Collection Account established by the Master Servicer pursuant to the
Trust Agreement, and (B) the NIMS Insurer's (i) acknowledgment and agreement to
retain Servicer, as the servicer for any such purchased Distressed Mortgage
Loan, to service such Distressed Mortgage Loan pursuant to the provisions of the
SWSA, and (ii) assumption, for the benefit of the Servicer, the rights and
obligations of the Trust Fund as owner of such purchased Distressed Mortgage
Loans pursuant to the SWSA. The Trustee and the Servicer shall immediately
effectuate the conveyance of the purchased Distressed Mortgage Loans to the NIMS
Insurer exercising the purchase option, including prompt delivery of the
Servicing File and all related documentation to the applicable NIMS Insurer. A
Distressed Mortgage Loan is as of any Determination Date a Mortgage Loan that is
delinquent in payment for a period of ninety (90) days or more, without giving
effect to any grace period permitted by the related Mortgage Loan, or for which
the Servicer or Trustee has accepted a deed in lieu of foreclosure.
[SIGNATURE PAGES IMMEDIATELY FOLLOW]
Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:_______________________________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
INDYMAC BANK, F.S.B.,
as Servicer
By:_______________________________
Name:
Title:
Acknowledged:
AURORA LOAN SERVICES LLC,
as Master Servicer
By: ____________________________________
Name: E. Xxxx Xxxxxxxxxx
Title Executive Vice President
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By:_______________________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the SWSA
1. Unless otherwise specified herein, any provisions of the SWSA, including
definitions, relating to (i) representations and warranties relating to
the Mortgage Loans and not relating to the servicing of the Mortgage
Loans, (ii) Mortgage Loan repurchase obligations, (iii) Whole Loan and
Pass-Through Transfers and Reconstitution, and (iv) Assignments of
Mortgage, shall be disregarded for purposes relating to this Agreement.
The exhibits to the SWSA and all references to such exhibits shall also
be disregarded.
2. The definition of "Determination Date" in Article I is hereby amended 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 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 Xxx" is hereby added to Article I to immediately
follow the definition of "Xxxxxxx Mac," to read as follows:
Xxxxxx Xxx: The Government National Mortgage Association, or any
successor thereto.
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5. The definition of "Mortgage Loan" is hereby amended and restated in its
entirety to read as follows:
Mortgage Loan: An individual servicing retained Mortgage Loan
which has been purchased from the Servicer by Xxxxxx Brothers
Bank, FSB and is subject to this Agreement being identified on
the Mortgage Loan Schedule to this Agreement, which Mortgage Loan
includes without limitation the Mortgage Loan documents, the
monthly reports, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan.
6. The definition of "Mortgage Loan Schedule" 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" is hereby amended and restated in
its entirety to read as follows:
Qualified Depository: Any of (i) a federal or state-chartered
depository institution the accounts of which are insured by the
FDIC and whose commercial paper, short-term debt obligations or
other short-term deposits are rated at least "A-1+" by Standard &
Poor's if the deposits are to be held in the account for less
than 30 days, or whose long-term unsecured debt obligations are
rated at least "AA-" by Standard & Poor's if the deposits are to
be held in the account for more than 30 days, or (ii) the
corporate trust department of a federal or state-chartered
depository institution subject to regulations regarding fiduciary
funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), which, in either case, has corporate
trust powers, acting in its fiduciary capacity, or (iii) Xxxxxx
Brothers Bank, 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 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;
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(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 "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.
11. The parties acknowledge that the fourth paragraph of Section 2.02 (Books
and Records; Transfers of Mortgage Loans) shall be inapplicable to this
Agreement.
12. The parties acknowledge that Section 2.03 (Delivery of Documents) shall
be superseded by the provisions of the Custodial Agreement.
13. 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".
14. Section 3.01(f) (Ability to Perform) is hereby amended by deleting the
second and third sentences thereof.
15. Section 3.01(h) (No Consent Required) is hereby amended by deleting the
words "or the sale of the Mortgage Loans".
16. 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.
17. 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.
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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.
18. Section 4.01 (Company to Act as Servicer) is hereby amended as follows:
(i) by deleting the first, second and third sentences of the
second paragraph of such section and replacing it with the following:
Consistent with the terms of this Agreement, the Company
may waive, modify or vary any term of any Mortgage Loan or
consent to the postponement of any such term or in any manner
grant indulgence to any Mortgagor if in the Company's reasonable
and prudent determination such waiver, modification, postponement
or indulgence is not materially adverse to the Purchaser,
provided, however, that unless the Mortgagor is in default with
respect to the Mortgage Loan or such default is, in the judgment
of the Company, imminent, the Company shall not permit any
modification with respect to any Mortgage Loan that would change
the Mortgage Interest Rate, forgive the payment of principal or
interest, reduce or increase the outstanding principal balance
(except for actual payments of principal) or change the final
maturity date on such Mortgage Loan.
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(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.
19. Section 4.04 (Establishment of and Deposits to Custodial Account) is
hereby amended as follows:
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 shall be replaced by the following: "in trust for LXS
2005-5N Trust Fund".
20. 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;
21. 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 2005-5N Trust Fund and various Mortgagors".
22. 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" and (ii)
adding two new paragraphs after the fourth paragraph thereof to read as
follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan,
the Company shall dispose of such REO Property not later than the
end of the third taxable year after the year of its acquisition
by the Trust Fund unless the Company has applied for and received
a grant of extension from the Internal Revenue Service to the
effect that, under the REMIC Provisions and any relevant proposed
legislation and under applicable state law, the applicable Trust
REMIC may hold REO Property for a longer period without adversely
affecting the REMIC status of such REMIC or causing the
imposition of a federal or state tax upon such REMIC. If the
Company has received such an extension, then the Company shall
continue to attempt to sell the REO Property for its fair market
value for such period longer than three years as such extension
permits (the "Extended Period"). If the Company has not received
such an extension and the Company is unable to sell the REO
Property within the period ending 3 months before the end of such
third taxable year after its acquisition by the Trust Fund or if
the Company has received such an extension, and the Company is
unable to sell the REO Property within the period ending three
months before the close of the Extended Period, the Company
shall, before the end of the three year period or the Extended
Period, as applicable, (i) purchase such REO Property at a price
equal to the REO Property's fair market value or (ii) auction the
REO Property to the highest bidder (which may be the Company) in
an auction reasonably designed to produce a fair price prior to
the expiration of the three-year period or the Extended Period,
as the case may be. The Trustee shall sign any document furnished
by the Servicer or take any other action reasonably requested by
the Company which would enable the Company, on behalf of the
Trust Fund, to request such grant of extension.
A-6
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) by 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.
23. 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 2005-5N
A-7
24. Section 5.02 (Statements to Purchaser) is hereby amended in its entirety
to read as follows:
Section 5.02 Statements to 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, 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.
25. 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 the
failure of the Company to perform its duties and service the
Mortgage Loans in strict compliance with the terms of this
Agreement. The Company immediately shall notify the Purchaser,
the Master Servicer and the Trustee or any other relevant party
if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the prior written
consent of the indemnified party, which consent shall not be
unreasonably withheld or delayed) the defense of any such claim
and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or any of such parties in
respect of such claim. The Company shall follow any written
instructions received from the Trustee in connection with such
claim. The Company shall provide the Trustee with a written
report of all expenses and advances incurred by the Company
pursuant to this Section 9.01, and the Trustee from the assets of
the Trust Fund promptly shall reimburse the Company for all
amounts advanced by it pursuant to the preceding sentence except
when the claim is in any way relates to the failure of the
Company to service and administer the Mortgage Loans in strict
compliance with the terms of this Agreement or the gross
negligence, bad faith or willful misconduct of this Company.
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26. 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.
27. Section 10.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master Servicer";
and
(b) amending subclause (vii) as follows: "the Company at any
time is neither a Xxxxxx Xxx or Xxxxxxx Mac approved
servicer, and the Master Servicer has not terminated the
rights and obligations of the Company under this Agreement
and replaced the Company with a Xxxxxx Mae or Xxxxxxx Mac
approved servicer within 30 days of the absence of such
approval; or".
28. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer".
29. 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.
30. Section 11.02 (Termination Without Cause) is hereby amended by replacing
the first reference to "Purchaser" with "Xxxxxx Brothers Holdings" and
by replacing all other references to "Purchaser" with "Xxxxxx Brothers
Holdings."
A-9
31. Section 12.01 (Successor to Company) is hereby amended in its entirety
to read as follows:
Simultaneously with the termination of the Company's
responsibilities and duties under this Agreement pursuant to
Sections 8.04, 10.01, 11.01(ii) or 11.02, the Master Servicer
shall, in accordance with the provisions of the Trust Agreement
(i) succeed to and assume all of the Company's responsibilities,
rights, duties and obligations under this Agreement, or (ii)
appoint a successor meeting the eligibility requirements of this
Agreement, and which shall succeed to all rights and assume all
of the responsibilities, duties and liabilities of the Company
under this Agreement with the termination of the Company's
responsibilities, duties and liabilities under this Agreement.
Any successor to the Company that is not at that time a servicer
of other mortgage loans for the Trust Fund shall be subject to
the approval of the Master Servicer, the Purchaser, the Trustee
and each Rating Agency (as such term is defined in the Trust
Agreement). Unless the successor servicer is at that time a
servicer of other mortgage loans for the Trust Fund, each Rating
Agency must deliver to the Trustee a letter to the effect that
such transfer of servicing will not result in a qualification,
withdrawal or downgrade of the then-current rating of any of the
Certificates. In connection with such appointment and assumption,
the Master Servicer or the Purchaser, as applicable, may make
such arrangements for the compensation of such successor out of
payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in
excess of that permitted the Company under this Agreement. In the
event that the Company's duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the
aforementioned sections, the Company shall discharge such duties
and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof
with the same degree of diligence and prudence which it is
obligated to exercise under this Agreement, and shall take no
action whatsoever that might impair or prejudice the rights or
financial condition of its successor. The resignation or removal
of the Company pursuant to the aforementioned sections shall not
become effective until a successor shall be appointed pursuant to
this Section 12.01 and shall in no event relieve the Company of
the representations and warranties made pursuant to Sections 3.01
and 3.02 and the remedies available to the Trust Fund under
Section 3.03 shall be applicable to the Company notwithstanding
any such resignation or termination of the Company, or the
termination of this Agreement.
Within a reasonable period of time, but in no event longer
than 30 days of the appointment of a successor entity, the
Company shall prepare, execute and deliver to the successor
entity any and all documents and other instruments, place in such
successor's possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect
the purposes of such notice of termination. The Company shall
cooperate with the Trustee and the Master Servicer, as
applicable, and such successor in effecting the termination of
the Company's responsibilities and rights hereunder and the
transfer of servicing responsibilities to the successor servicer,
including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time
be credited by the Company to the Account or any Escrow Account
or thereafter received with respect to the Mortgage Loans.
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.
A-10
The Company shall deliver, within three (3) Business Days
of the appointment of a successor Servicer, the funds in the
Custodial Account and Escrow Account and all Collateral Files,
Credit Files and related documents and statements held by it
hereunder to the successor Servicer and the Company shall account
for all funds and shall execute and deliver such instruments and
do such other things as may reasonably be required to more fully
and definitively vest in the successor all such rights, powers,
duties, responsibilities, obligations and liabilities of the
Company.
Upon a successor's acceptance of appointment as such, the
Company shall notify the Trustee and Master Servicer of such
appointment in accordance with the notice procedures set forth
herein.
Except as otherwise provided in this Agreement, all
reasonable costs and expenses incurred in connection with any
transfer of servicing hereunder (whether as a result of
termination or removal of the Company or resignation of the
Company or otherwise), including, without limitation, the costs
and expenses of the Master Servicer or any other Person in
appointing a successor servicer, or of the Master Servicer in
assuming the responsibilities of the Company hereunder, or of
transferring the Servicing Files and the other necessary data to
the successor servicer shall be paid by the terminated, removed
or resigning Servicer from its own funds without reimbursement.
32. Section 12.02 (Amendment) is hereby amended and restated in its entirety as
follows:
Section 12.02 (Amendment)
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.
33. Section 12.04 (Duration of Agreement) is hereby amended by deleting the
last sentence thereof.
34. Section 12.10 (Assignment by Purchaser) is hereby deleted in its
entirety.
35. Section 12.11 (No Personal Solicitation) is hereby amended by replacing
the words "the Purchaser" with "Xxxxxx Brothers Holdings" in each
instance.
36. A new Section 12.13 (Intended Third Party Beneficiaries) is hereby added
to read as follows:
Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein,
that the Master Servicer and the Trustee receive the benefit of
the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions.
The Company shall have the same obligations to the Master
Servicer and the Trustee as if they were parties to this
Agreement, and the Master Servicer and the Trustee shall have the
same rights and remedies to enforce the provisions of this
Agreement as if they were parties to this Agreement. The Company
shall only take direction from the Master Servicer (if direction
by the Master Servicer is required under this Agreement) unless
otherwise directed by this Agreement. Notwithstanding the
foregoing, all rights and obligations of the Master Servicer and
the Trustee hereunder (other than the right to indemnification)
shall terminate upon termination of the Trust Agreement and of
the Trust Fund pursuant to the Trust Agreement.
A-11
37. A new Section 12.14 (Officer's Certificate) is hereby added to read as
follows:
By April 1st of each year beginning April 1, 2006, or at
any other time upon thirty (30) days written request, an officer
of the Servicer shall execute and deliver an Officer's
Certificate substantially in the form of Exhibit E attached to
the Reconstituted Servicing Agreement, signed by the senior
officer in charge of servicing of the Servicer or any officer to
whom that officer reports, to the Master Servicer and Depositor
for the benefit of such the Master Servicer and their respective
officers, directors and affiliates. Notwithstanding the
foregoing, in the event that as to any year a report on Form 10-K
is not required to be filed with the Securities and Exchange
Commission with respect to the related securitization transaction
for the prior calendar year, then (i) the Depositor shall notify
the Servicer of that fact, and (ii) the Servicer shall not be
required to provide the Officer's Certificate described in this
Section 12.14.
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EXHIBIT B
SWSA
[SEE EXHIBIT 99.5]
B-1
EXHIBIT C
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Schedule of Serviced Mortgage Loans
[INTENTIONALLY OMITTED]
D-1
EXHIBIT E
ANNUAL CERTIFICATION
Structured Asset Securities Corporation
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Re: Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2005-5N
Reference is made to the Reconstituted Servicing Agreement, dated as of October
1, 2005 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc., as seller
and IndyMac Bank, F.S.B., as servicer (the "Servicer"). I, [identify the
certifying individual], a [title] of the Servicer hereby certify to Aurora Loan
Services LLC (the "Master Servicer") and Structured Asset Securities Corporation
(the "Depositor"), and their respective officers, directors and affiliates, and
with the knowledge and intent that they will rely upon this certification, that:
1. I have reviewed the information required to be delivered to the Master
Servicer pursuant to the Agreement (the "Servicing Information").
2. Based on my knowledge, the Servicing Information does not contain any
material untrue information or omit to state information necessary to make
the Servicing Information, in light of the circumstances under which such
information was provided, not misleading as of the date of this
certification;
3. Based on my knowledge, the Servicing Information has been provided to the
Master Servicer when and as required under the Agreement; and
4. I am responsible for reviewing the activities performed by the Servicer
under the Agreement, and based upon my knowledge and the review required
under the Agreement, and except as disclosed in writing to you on or prior
to the date of this certification either in the accountants' report required
under the Agreement or in disclosure a copy of which is attached hereto, the
Servicer has, for the period covered by the Form 10-K Annual Report,
fulfilled its obligations under this Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Servicer.
Dated:_________________________ By:_________________________________
Name:_______________________________
Title:______________________________
E-1
