EXECUTION
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of August, 2000, by and between XXXXXX CAPITAL, A
DIVISION OF XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation ("Xxxxxx
Capital"), and AMERIQUEST MORTGAGE COMPANY, a Delaware corporation ("the
Servicer"), recites and provides as follows:
RECITALS
WHEREAS, Xxxxxx Capital has conveyed certain Mortgage Loans
identified on Schedule I 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 First
Union National Bank, a national banking association, as trustee (the
"Trustee"), under a trust agreement dated as of August 1, 2000 (the "Trust
Agreement"), among the Trustee, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer ("Xxxxx Fargo," and, together with any
successor Master Servicer appointed pursuant to the provisions of the Trust
Agreement, the "Master Servicer"), SASCO, Xxxxxx Brothers Holdings Inc., as
seller, The Murrayhill Company, as loss mitigation advisor and the Federal
Home Loan Mortgage Corporation ("Xxxxxxx Mac"), as guarantor (the
"Guarantor").
WHEREAS, the Serviced Mortgage Loans are currently being serviced by
the Servicer pursuant to a Seller's Warranties and Servicing Agreement, dated
as of August 1, 1998, between Xxxxxx Capital and the Servicer (for
Conventional Residential Adjustable Rate Mortgage Loans, Ameri Group 2)
(hereinafter, the "8/1/98 SWSA").
WHEREAS, Xxxxxx Capital 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 Directing Holder, the Master Servicer and the Guarantor to
terminate the rights and obligations of the Servicer hereunder as set forth
herein and to the other conditions set forth herein.
WHEREAS, Xxxxxx Capital and the Servicer desire that the provisions
of the 8/1/98 SWSA shall apply to the Serviced Mortgage Loans, but only to the
extent provided herein and that this Agreement shall constitute a
Reconstitution Agreement (as defined in the 8/1/98 SWSA) which shall govern
the Serviced Mortgage Loans for so long as such Serviced Mortgage Loans remain
subject to the provisions of the Trust Agreement and are serviced by the
Servicer.
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, Xxxxxx Capital and the Servicer intend that each of the
Master Servicer, the Directing Holder, the Trustee and the Guarantor 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, Xxxxxx Capital 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 8/1/98 SWSA
between Xxxxxx Capital and the Servicer incorporated by reference herein
(regardless if such terms are currently defined in the 8/1/98 SWSA), shall
have the meanings ascribed to such terms in the Trust Agreement.
2. 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
8/1/98 SWSA, except as otherwise provided herein and on Exhibit A hereto, and
that the provisions of the 8/1/98 SWSA, as so modified, are and shall be a
part of this Agreement to the same extent as if set forth herein in full.
3. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Serviced Mortgage Loans in accordance with the
provisions of this Agreement. The Master Servicer, acting on behalf of the
Trustee and the trust fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as Xxxxxx Capital under the 8/1/98 SWSA
to enforce the obligations of the Servicer under the 8/1/98 SWSA and the term
"Purchaser" as used in the 8/1/98 SWSA in connection with any rights of the
Owner shall refer to the Master Servicer, except as otherwise specified in
Exhibit A hereto. The Master Servicer, with the prior consent of Xxxxxxx Mac,
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, as provided in Article X of the 8/1/98 SWSA.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of Xxxxxx Capital under the 8/1/98
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.
4. Compliance with HOEPA. The Servicer's origination practices are
currently in compliance with the Home Ownership and Equity Protection Act
("HOEPA") and will continue to operate its business in compliance with HOEPA.
5. 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 in connection
with the transactions contemplated by the Trust Agreement and issuance of the
Certificates pursuant thereto.
6. Notices. All notices and communications between or among the
parties hereto (including any third party beneficiary thereof) or required to
be provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW
YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
9. Reconstitution. Xxxxxx Capital and the Servicer agree that this
Agreement is a "Reconstitution Agreement" and that the date hereof is the
"Reconstitution Date", each as defined in the 8/1/98 SWSA.
10. Notices to Parties and Remittances to the Master Servicer. All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Xxxxx Fargo Bank Minnesota, National Association
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Master Servicing Department, ARC 2000-BC3
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made to the following wire account:
Xxxxx Fargo Bank Minnesota, National Association
Minneapolis, Minnesota
ABA#: 000-000-000
Account Name: Corporate Trust Clearing
Account Number: 0000000000
For further credit to: Collection Account No. 00000000
(ARC 2000-BC3)
All notices required to be delivered to the Trustee hereunder shall
be delivered to the Trustee at the following address:
First Union National Bank
000 X. Xxxxx Xxxxxx XX.0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Structured Finance Trust Services (ARC 2000-BC3)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Guarantor hereunder shall
be delivered to the Guarantor at the following address:
Federal Home Loan Mortgage Corporation
0000 Xxxxx Xxxxxx Xxxx
XxXxxx, Xxxxxxxx 00000
Attention: Structured Finance - Director of Specialized
Business Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Servicer hereunder shall
be delivered to the Servicer at the following address:
Ameriquest Mortgage Company
0000 Xxxx & Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Executed as of the day and year first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Authorized Signatory
AMERIQUEST MORTGAGE COMPANY
By: /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
Title: E V P
Acknowledged:
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Trust Officer
FEDERAL HOME LOAN MORTGAGE CORPORATION,
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director-Securities Servicing & Processing
EXHIBIT A
Modifications to the 8/1/98 SWSA
1. Unless otherwise specified herein, any provisions of the 8/1/98 SWSA,
including definitions, relating to the original purchase and transfer
of the Serviced Mortgage Loans, including (i) representations and
warranties relating to the Mortgage Loans (other than those relating
to the servicing of the Mortgage Loans) and related repurchase
obligations, (ii) Accepted Origination Practices, (iii) Assignments
of Mortgage, (iv) Closing Date, (v) Credit Grades, (vi) FICO Score,
(vii) Final Closing Date, (viii) First Payment Default or First
Remittance Date, (ix) Group of Mortgage Loans, (x) Mortgage Interest
Rate Cap, (xi) Pass-Through Transfer, (xii) Pool 1 Mortgage Loans or
Pool 2 Mortgage Loans, Mortgage Loan Purchase Agreement, (xiii)
Purchase Price, (xiv) Purchase Price and Terms Letter, (xv) Whole
Loan Documents and (xvi) Whole Loan Transfer, shall be disregarded as
inapplicable to this reconstitution. Unless otherwise specified
herein, the exhibits to the 8/1/98 SWSA and all references to such
exhibits shall also be disregarded.
2. For reporting purposes, a Mortgage Loan is "delinquent" when any
payment contractually due thereon has not been made by the close of
business on the Due Date therefor. Such Mortgage Loan is "30 days
Delinquent" if such payment has not been received by the close of
business on the corresponding day of the month immediately succeeding
the month in which such payment was first due, or, if there is no
such corresponding day (e.g., as when a 30-day month follows a 31-day
month in which a payment was due on the 31st day of such month), then
on the last day of such immediately succeeding month. Similarly for
"60 days Delinquent" and the second immediately succeeding month and
"90 days Delinquent" and the third immediately succeeding month.
3. The definition of "Adverse REMIC Event" is hereby added to Article I
immediately following the definition of "Administrative Changes":
Adverse REMIC Event: As defined in Article X of the Trust
Agreement.
4. The definition of "Custodial Agreement" in Article I is hereby amended
in its entirety to read as follows:
Custodial Agreement: The custodial agreement relating to the
custody of the Serviced Mortgage Loans among The Chase
Manhattan Bank (successor by merger with Chase Bank of
Texas, National Association), as Custodian, the Trustee and
Structured Asset Securities Corporation (the "Depositor").
5. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
Custodian: The Chase Manhattan Bank (successor by merger
with Chase Bank of Texas, National Association), any
successor in interest or any successor custodian appointed
pursuant to the Custodial Agreement.
6. The definition of "Determination Date" in Article I is hereby amended
to read as follows:
Determination Date: The last day (or if such day is not a
Business Day, the Business Day immediately preceding such
last day) of the Due Period immediately preceding the
related Remittance Date.
7. The definition of "Monthly Advance" in Article I is hereby amended by
deleting the period after the word "Company" and adding the following
words after the word "Company":
, but only to the extent that such amount is expected, in
the reasonable judgement of the Servicer, to be recoverable
from collections or other recoveries in respect of such
Mortgage Loan.
8. The definition of "Prepayment Interest Shortfall Amount" in Article I
is hereby amended by deleting the parenthetical in the fourth line
and inserting the following parenthetical in its place:
(net of the related Servicing Fee for Principal Prepayments in
full only).
9. The definition of "Opinion of Counsel" in Article I is hereby amended
by inserting the words "reasonably acceptable to the Trustee, the
Guarantor and Xxxxxx Capital" after the word "Company" in the second
line thereof.
10. The definition of "Qualified Depository" in Article I is hereby
amended in its entirety to read as follows:
"Qualified Depository: Either (i) a depository the accounts
of which are insured by the FDIC through the BIF or the SAIF
and the short-term unsecured debt obligations of which are
rated "A-1" or better by S&P or "Prime-1" or better by
Xxxxx'x (or a comparable rating if another rating agency is
specified by the Master Servicer by written notice to the
Servicer) or (ii) the corporate trust department of any bank
the debt obligations of which are rated at least "A-" or its
equivalent by either of S&P or Xxxxx'x."
11. The definition of "Remittance Date" in Article I is hereby replaced
by the following:
The 18th day (or if such 18th day is not a Business Day, the
first Business Day immediately following) of any month.
12. The definition of "REO Property" in Article I is hereby amended by
replacing the word "Purchasers" with "Trust Fund".
13. The definition of "Servicing Fee" in Article I is hereby amended by
restating the first sentence thereof as follows: "With respect to
each Mortgage Loan, the amount of the annual fee the Trust Fund shall
pay the Servicer, which shall, for a period of one full month or a
proration thereof, be equal to 1/12 of the product of the Servicing
Fee Rate.
14. Article II (Conveyance of Mortgage Loans; Possession of Mortgage
Files; Books and Records; Custodial Agreement; Delivery of Documents)
is hereby disregarded as inapplicable for purposes of this
reconstitution.
15. Section 3.01 (Company Representations and Warranties) is hereby
amended as follows:
(a) by adding the words "is solvent and" after the word
"Company" in the first sentence of clause (e) and by
deleting the second sentence thereof.
(b) by deleting clauses (h), (j), (k), (l) and (m) of such
Section and by adding the following paragraph
immediately after clause (n):
It is understood and agreed that the
representations and warranties set forth in Section
3.01 shall survive the engagement of the Servicer
to perform the servicing responsibilities hereunder
and the delivery of the Servicing Files to the
Servicer and shall inure to the benefit of the
Trustee and the Trust Fund. Upon discovery by
either the Servicer, the Master Servicer, the
Guarantor or the Trustee of a breach of any of the
foregoing representations and warranties which
materially and adversely affects the ability of the
Servicer to perform its duties and obligations
under this Agreement, 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 Servicer of any
breach of a representation or warranty set forth in
Section 3.01 which materially and adversely affects
the ability of the Servicer to perform its duties
and obligations under this Agreement, the Servicer
shall use its best efforts promptly to cure such
breach in all material respects and, if such breach
cannot be cured within such 60 days, the Servicer
shall, at the Trustee's option, assign the
Servicer's rights and obligations under this
Agreement (or respecting the affected Loans) to a
successor Servicer selected by the Trustee with the
prior consent and approval of the Master Servicer
and the Guarantor. Such assignment shall be made in
accordance with Section 12.01.
In addition, the Servicer shall indemnify
the Trustee, the Trust Fund, the Guarantor 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 Servicer's
representations and warranties contained in Section
3.01 of 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 Servicer
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 Servicer or notice thereof by the Trustee or
Master Servicer to the Servicer, (ii) failure by
the Servicer to cure such breach within the
applicable cure period, and (iii) demand upon the
Servicer by the Trustee or the Master Servicer for
compliance with this Agreement.
16. Section 3.03 (Representations and Warranties Regarding Individual
Mortgage Loans), Section 3.04 (Remedies for Breach of Representations
and Warranties) and Section 3.05 (Restrictions and Requirements
Applicable in the Event that a Mortgage Loan is Acquired by a REMIC,
etc.) shall be disregarded as inapplicable to this reconstitution.
17. Section 4.01 (Company to Act as Servicer) is hereby amended as follows:
(a) The second paragraph of Section 4.01 is hereby amended
by changing the word "unless" in the fourth line of the
second paragraph thereof to "except in the case where"
and by adding the following immediately after the word
"Loan" in the ninth line thereof:
"unless the Servicer shall have provided to the
Master Servicer, the Trustee and the Guarantor an
Opinion of Counsel in writing to the effect that
such modification, waiver or amendment would not
cause an Adverse REMIC Event."
(b) by adding the following sentences immediately after the
second sentence in the second paragraph thereof.
Any such modification which permits the deferral of
interest or principal payments on any Mortgage
Loan, the Servicer shall, in any month in which any
such principal or interest payment has been
deferred, make a Monthly Advance in accordance with
Section 4.03, in an amount equal to the difference
between (a) such month's principal and one month's
interest at the Mortgage Loan Remittance Rate on
the unpaid principal balance of such Mortgage Loan
and (b) the amount paid by the Mortgagor. The
Servicer shall be entitled to reimbursement for
such advances to the same extent as for all other
advances made pursuant to Section 5.03.
(c) The word "Purchaser" in the third sentence of the second
paragraph is changed to "Trust Fund", the fourth
sentence of the second paragraph is changed to
"Trustee", and in the last sentence of such second
paragraph to "Trustee".
18. Section 4.02 (Liquidation of Mortgage Loans) is hereby amended by
replacing the word "Purchaser" in the fourth to the last line of the
first paragraph thereof with "Trust Fund" and by replacing the word
"Purchaser" in the last line of the second paragraph thereof with
"the Master Servicer and the Guarantor".
19. Section 4.04 (Establishment of and Deposit to Custodial Account) is
hereby amended as follows:
(a) The first sentence of the second paragraph shall be
restated as follows: The Servicer shall exercise its
best efforts to deposit in the Custodial Account within
two days after receipt of funds (but in no event later
than 3 days), the following collections received by the
Servicer with respect to the related Due Period:
(b) the words "in trust for the Purchaser of Conventional
Residential Adjustable Rate Mortgage Loans, Ameri Group
2 and various Mortgagors" in the fourth and fifth lines
of the first sentence of the first paragraph shall be
replaced by the following: "in trust for Xxxxx Fargo
Bank Minnesota, National Association, as Master Servicer
for ARC 2000-BC3 Trust".
(c) by deleting the word "and" at the end of clause (viii),
by removing the period from the end of clause (ix) and
replacing it with a semi-colon followed by the word
"and", and by adding a new clause (x) to read as
follows:
(xi) the amount of any Prepayment Interest Shortfall
Amount required to be paid by the Servicer
pursuant to Section 5.04.
20. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended as follows:
(a) by restating clause (i) to read as follows: "to pay any
outstanding MGIC Insurance Premiums and to make payments to
the Master Servicer on behalf of the Trust Fund in the
amounts and in the manner provided by Section 5.01";
(b) by removing the words "those loans subject to transfer
pursuant to Section 4.19 and" from the second sentence
of clause (ii), by changing the reference to "(iii)" to
"(ii)" in the second sentence of such clause, by
replacing the word "Purchaser" in such clause with
"Trust Fund" and deleting everything after the word
"Trust Fund" in such clause (ii); and
(c) by deleting the word "and" at the end of clause (vi), by
removing the period from the end of clause (vii) and
replacing it with a semi-colon followed by the word
"and", and by adding a new clause (viii) to read as
follows:
"to reimburse itself for Monthly Advances of the
Servicer's funds made pursuant to Section 5.03. The
Servicer's right to reimburse itself pursuant to
this subclause (viii) with respect to any Mortgage
Loan shall be limited to amounts received on the
related Mortgage Loan which represent late payments
of principal and/or interest respecting which any
such advance was made, it being understood that, in
the case of any such reimbursement, the Servicer's
right to such reimbursement shall be prior to the
rights of the Trust Fund; provided, however, that
following the final liquidation of a Mortgage Loan,
the Servicer may reimburse itself for previously
unreimbursed Monthly Advances in excess of
Liquidation Proceeds or Insurance Proceeds with
respect to such Mortgage Loan from the Custodial
Account, it being understood, in the case of any
such reimbursement, that the Servicer'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 (i) deleting the words "in trust for the Purchaser of
Conventional Residential Adjustable Rate Mortgage Loans, Ameri Group
2," in the fourth and fifth lines of the first sentence of the first
paragraph, and replacing it with the following:
"Xxxxx Fargo Bank, Minnesota, National Association, as Master
Servicer for the ARC 2000-BC3 Trust"; and
(ii)restating the first sentence of the second paragraph to read
as follows: The Servicer shall exercise its best efforts to
deposit in the Escrow Account or Accounts within two days
after receipt of funds (but in no event later than 3 days),
and retain therein:
22. Section 4.09 (Protection of Accounts) is hereby amended by replacing
the word "Purchaser" (i) in the second sentence of the first
paragraph with "Trustee" and (ii) in the second paragraph with
"Trustee and Trust Fund".
23. Section 4.10 (Maintenance of Hazard Insurance) is hereby amended by
(i) replacing the words "a generally acceptable, licensed and
qualified insurer" in the first paragraph thereof with "an insurer
reasonably acceptable to the Guarantor (the Servicer shall be
responsible for ascertaining whether the insurer is acceptable to the
Guarantor); provided that this requirement shall solely apply in the
event that the servicing of the Mortgage Loans by the Servicer under
this Agreement extends beyond sixty (60) days from the Closing Date."
24. Section 4.12 (Maintenance of Fidelity Bond and Errors and Omissions
Insurance) is hereby amended by deleting the words "FNMA in the FNMA
Mortgage-Backed Securities Selling and Servicing Guide or by" in the
penultimate sentence thereof and by replacing the word "Purchaser"
with "Trustee" in the last sentence thereof.
25. Section 4.14 (Restoration of Mortgaged Property) is hereby amended by
replacing the word "Purchaser" each time it appears in the last
paragraph thereof with the word "Trustee".
26. Section 4.15 (Title, Management and Disposition of REO Property) is
hereby amended by replacing the word "Purchaser" (i) each time it
appears in the first paragraph with "Trustee"; (ii) each time it
appears in the second paragraph with "Trustee and the Trust Fund";
and (iii) in the last paragraph thereof with "Trust Fund"; and (iv)
adding the following paragraphs at the end of such Section:
In the event that the Trust Fund acquires any REO
Property in connection with a default or imminent default on
a Mortgage Loan, the Servicer 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 Servicer 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 Servicer has received such an extension,
then the Servicer 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 Servicer has not received such an extension
and the Servicer 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 Servicer has received such an extension, and the
Servicer is unable to sell the REO Property within the
period ending three months before the close of the Extended
Period, the Servicer 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 Servicer) in an auction
reasonably designed to produce a fair price prior to the
expiration of the three-year period or the Extended Period,
as the case may be. The Trustee shall sign any document or
take any other action reasonably requested by the Servicer
which would enable the Servicer, 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 Servicer has agreed to
indemnify and hold harmless the Trust Fund with respect to
the imposition of any such taxes.
27. Section 4.16 (Real Estate Owned Reports) is hereby amended by
replacing the words "Remittance Date each month" with "10th calendar
day of each month".
28. Section 4.17 (Liquidation Reports) is hereby amended by replacing the
word "Purchaser" with "Trust Fund".
29. Section 4.18 (Notification of Adjustments) is hereby amended by
changing the word "Purchaser" to "Master Servicer" each time it
appears therein.
30. Section 4.19 (Transfer Upon Delinquency) shall be disregarded as
inapplicable to this reconstitution.
31. Section 5.01 (Remittances) is hereby amended by:
(a) deleting the first paragraph thereof and replacing it with
the following paragraph:
On each Remittance Date, the Servicer shall remit on a
scheduled/scheduled basis by wire transfer of immediately available
funds to the Master Servicer (a) all amounts deposited in the
Custodial Account as of the close of business on the last day of the
Due Period (net of any charges against or withdrawals from the
Custodial Account pursuant to Section 4.05, plus (b) all Monthly
Advances, if any, which the Servicer is obligated to make pursuant to
Section 5.03 minus (c) any amounts attributable to Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds or REO Disposition proceeds received after the applicable
Due Period, which amounts shall be remitted on the following
Remittance Date, plus (d) any additional interest required to be
deposited in the Custodial Account in connection with a Prepayment
Interest Shortfall Amount pursuant to Section 5.04 and minus (e) any
amounts attributable to Monthly Payments collected but due on a due
date or dates subsequent to the first day of the month in which such
Remittance Date occurs, which amounts shall be remitted on the
Remittance Date or Dates next succeeding the Due Period for such
amounts.
All remittances required to be made to the Master Servicer
shall be made to the following wire account:
Xxxxx Fargo Bank Minnesota, National Association
Minneapolis, Minnesota
ABA# 000-000-000
Account #: 0000000000
Account Name: Corporate Trust Clearing
For further credit to: Collection Account No. 00000000
(ARC 2000-BC3)
(b) by replacing the word "Purchaser" with "Master Servicer"
each time it appears in the second paragraph thereof.
32. Section 5.02 (Statements to Purchaser) is hereby amended by:
(a) Restating the first paragraph as follows:
Not later than the 10th calendar day (or if such 10th
calendar day is not a Business Day, the immediately
preceding Business Day) the Servicer shall furnish the
Master Servicer with a Monthly Remittance Statement in a
format reasonably acceptable to the Servicer, Master
Servicer, the Guarantor and the Trustee. Such Monthly
Remittance Statement shall also include on a cumulative and
aggregate basis (i) the amount of claims filed, (ii) the
amount of any claim payments made, (iii) the amount of
claims denied and (iv) policies cancelled with respect to
those Serviced Mortgage Loans covered by the loan-level
primary mortgage insurance policies provided by MGIC or any
other provider of primary mortgage insurance purchased by
the Trust. The Master Servicer will convert such data into a
format acceptable to the Guarantor and provide monthly
reports to the Guarantor pursuant to the Trust Agreement.
(b) By deleting the second and third paragraph thereof; and
(c) Restating the fourth paragraph thereof as follows:
The Servicer shall provide the Master Servicer within
sixty days of the close of the preceding calendar year the
information available to the Servicer from its loan
servicing system necessary to provide each Certificateholder
and the Trust Fund the information concerning the Mortgage
Loans as is necessary to prepare their respective federal
income tax returns.
33. Section 5.03 (Monthly Advances by Company) is amended and restated in
its entirety as follows:
Not later than the Remittance Date, the Servicer
shall deposit in the Custodial Account from its own funds or
from amounts held for future distribution an amount equal to
all Monthly Payments which were due on the Mortgage Loans
during the applicable Due Period and which were delinquent
at the close of business on the immediately preceding
Determination Date. Any amounts held for future distribution
and so used shall be replaced by the Servicer by deposit in
the Custodial Account on or before any future Remittance
Date if funds in the Custodial Account on such Remittance
Date shall be less than remittances to the Master Servicer
required to be made on such Remittance Date. The Servicer
shall keep appropriate records of such amounts and will
provide such records to the Master Servicer and the
Guarantor upon request. The Guarantor, in its reasonable
judgment, shall have the right to require the Servicer to
remit from its own funds to the Collection Account an amount
equal to all Monthly Advances previously made out of funds
held in the Collection Account and not previously reimbursed
from collections on the Mortgage Loans, and in such event,
the Servicer shall thereafter remit all Monthly Advances
from its own funds. In no event shall the preceding sentence
be construed as limiting the Servicer's right to (i) pass
through late collections on the related Mortgage Loans in
lieu of making Monthly Advances or (ii) reimburse itself for
such Monthly Advances from late collections on the related
Mortgage Loans.
The Servicer shall make Monthly Advances through
the Distribution Date immediately preceding the distribution
of all Liquidation Proceeds and other payments or recoveries
(including insurance proceeds and condemnation proceeds)
with respect to the related Mortgage Loans.
34. New Sections 5.04 and 5.05 are hereby added to Article V as follows:
Section 5.04 Compensating Interest.
The Servicer shall deposit in the Custodial Account
no later than the related Remittance Date, therein with
respect to each Principal Prepayment, the Prepayment
Interest Shortfall Amount, if any, applicable to the Due
Period related to such Remittance Date. Such deposit shall
be made from the Servicer's own funds, without reimbursement
therefor up to a maximum amount per month of the Servicing
Fee actually received for such month for the Mortgage Loans.
Section 5.05 Credit Reporting.
For each Mortgage Loan, in accordance with its
current servicing practices, the Servicer will accurately
and fully report its underlying borrower credit files to
each of the following credit repositories or their
successors: Equifax Credit Information Services, Inc., Trans
Union, LLC and Experian Information Solution, Inc., on a
monthly basis in a timely manner.
35. Section 6.01 (Transfers of Mortgaged Property) is hereby amended by
replacing the word "Purchaser's" in the last sentence thereof with
"Master Servicer's".
36. Section 6.02 (Satisfaction of Mortgages and Release of Mortgage
Files) is hereby amended by replacing the word "Purchaser" (i) in the
first sentence thereof with "Master Servicer", (ii) in the second
sentence thereof with "Trust Fund" and (iii) in the second paragraph
thereof with "Trust Fund".
37. Section 6.04 (Right to Examine Company Records) is superceded by new
Section 12.14.
38. Article VII (Whole Loan and Pass-Through Transfers) shall be
disregarded for purposes of this reconstitution.
39. Section 8.01 (Provision of Information) is hereby amended by
replacing the word "Purchaser" each time it appears therein with
"Master Servicer".
40. Section 8.02 (Financial Statements; Servicing Facility) shall be
disregarded for purposes of this reconstitution.
41. New Sections 8.03 and 8.04 are hereby added to the 8/1/98 SWSA as
follows:
Section 8.03 Annual Audit. On or before April 30 of each year,
beginning with April 30, 2001, the Servicer shall, at its own
expense, cause a firm of independent public accountants (who may
also render other services to Servicer), which is a member of the
American Institute of Certified Public Accountants, to furnish to
the Seller, the Master Servicer and the Guarantor (i) year-end
audited (if available) financial statements of the Servicer and (ii)
a statement to the effect that such firm has examined certain
documents and records for the preceding fiscal year (or during the
period from the date of commencement of such servicer's duties
hereunder until the end of such preceding fiscal year in the case of
the first such certificate) and that, on the basis of such
examination conducted substantially in compliance with the Uniform
Single Attestation Program for Mortgage Bankers, such firm is of the
opinion that Servicer's overall servicing operations have been
conducted in compliance with the Uniform Single Attestation Program
for Mortgage Bankers except for such exceptions that, in the opinion
of such firm, the Uniform Single Attestation Program for Mortgage
Bankers requires it to report, in which case such exceptions shall
be set forth in such statement.
Section 8.04 Annual Statement as to Compliance. The Servicer
shall deliver to the Master Servicer and the Guarantor , on or
before April 30 each year beginning April 30, 2001, an Officer's
Certificate, stating that (i) a review of the activities of the
Servicer during the preceding calendar year and of the performance
under this Agreement has been made under such officer's supervision,
and (ii) the Servicer has complied fully with the provisions of
Article IV, and (iii) to the best of such officer's knowledge, based
upon such review, the Servicer has fulfilled all its obligations
under this Agreement throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each
such default known to such officer and the nature and status thereof
and the action being taken by the Servicer to cure such default.
42. Section 9.01 (Indemnification; Third Party Claims) is hereby amended
and restated in its entirety to read as follows:
Section 9.01 Indemnification; Third Party Claims.
The Servicer shall indemnify the Master Servicer, the
Guarantor and the Trust Fund and hold it harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any other
costs, fees and expenses that the Master Servicer, the Guarantor or
the Trust Fund may sustain in any way related to the failure of the
Servicer to perform its duties and service the Serviced Mortgage
Loans in strict compliance with the terms of the Agreement. The
Servicer shall immediately notify the Master Servicer, the Guarantor
and the Trustee if a claim is made by a third party with respect to
this Agreement, assume (with the prior written consent of the Master
Servicer, the Guarantor and the Trustee) 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 claim
which may be entered against it or the Purchaser in respect of such
claim. The Servicer shall follow any written instructions received
from the Trustee, the Master Servicer or the Master Servicer in
connection with such claims. The Trust Fund promptly shall reimburse
the Servicer for all amounts advanced by it pursuant to the preceding
sentence except when the claim is in any way related to the failure
of the Servicer to service and administer the Serviced Mortgage Loans
in strict compliance with the terms of the 8/1/98 SWSA.
43. Section 9.02 (Merger or Consolidation of the Company) is hereby
amended by replacing the words "FNMA-approved" in the second
paragraph thereof with "Xxxxxxx Mac-approved".
44. Section 9.03 (Limitation on Liability of Company and Others) is
hereby amended by changing the word "Purchaser" in the second line of
the first sentence thereof to "Trust Fund, the Trustee and the Master
Servicer"; and by changing the word "Purchaser" in the last sentence
thereof to "Trust Fund".
45. Section 9.04 (Limitation on Resignation and Assignment by Servicer)
is hereby amended by deleting the first sentence, deleting the word
"Therefore," at the beginning of the second sentence, and replacing
the word "Purchaser" with "the parties and other signatories hereto"
in each instance.
46. Section 10.01 (Events of Default) is hereby amended by (a) replacing
the word "five" with "one" in clause (i); (b) replacing the reference
to "30 days" to "15 days" in clause (ii); (c) changing the words
"FNMA" to "Xxxxxxx Mac" in clause (vii); (d) changing the word
"Purchaser" in clause (ix) to "the parties and other signatories
hereto"; (e) by changing the word "Purchaser" each time it appears in
the second and third paragraphs thereof to "Master Servicer"; (f) by
changing the word "lender" to "servicer" in clause (vii); and (g)
adding the words "within the applicable cure period" after the word
"remedied" in the second paragraph.
47. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer with the prior written
consent of the Trustee and the Guarantor".
48. Section 11.01 (Termination) and Section 11.02 (Termination Without
Cause) are hereby amended, restated and consolidated to read as
follows:
Section 11.01 Termination.
(a) This Agreement shall terminate upon: (i) the
later of (a) the distribution of the final payment or
liquidation proceeds on the last Mortgage Loan to the Trust
Fund, and (b) the disposition of all REO Property acquired
upon foreclosure of the last Mortgage Loan and the
remittance of all funds due hereunder, or (ii) mutual
consent of the Servicer and the Trustee in writing, provided
such termination is also acceptable to the Master Servicer,
the Guarantor and the Rating Agencies. Any such notice of
termination shall be in writing and delivered to the
Servicer by registered mail to the address set forth at the
beginning of this Agreement.
(b) In the event that the Servicer decides to
terminate its obligations under this Agreement as set forth
in this Section 11.01, the parties agree that this Agreement
shall remain in full force and effect until a successor
servicer is appointed and the Servicer agrees that it will
continue to service the Mortgage Loans beyond the prescribed
termination date until the earlier of: (i) 60 days or (ii)
until such time as the Master Servicer, using reasonably
commercial efforts, is able to identify a successor servicer
meeting the characteristics set forth in the second
paragraph of Section 9.02.
49. Section 12.01 (Successor to Company) is hereby amended as follows:
(i) by replacing the word "Purchaser" with "Master Servicer"
in the second line of the first paragraph and by adding
the words ", in accordance with the Trust Agreement,"
after the word "shall" in the second line of the first
paragraph thereto;
(ii) by adding the following new sentences immediately
following the first sentence of the first paragraph
thereof to read as follows:
Prior to the termination of the Servicer's
responsibilities, rights, duties and obligations
under this Agreement pursuant to clause (ii) of
Section 11.01, the Master Servicer shall appoint a
successor which shall succeed to all rights and
assume all of the responsibilities, duties and
liabilities of the Servicer under this Agreement.
Any successor to the Servicer shall be subject to
the approval of the Trustee, Master Servicer, the
Depositor, the Guarantor and each Rating Agency as
evidenced by a letter from such Rating Agency
delivered to the Trustee that the transfer of
servicing will not result in a qualification,
withdrawal or downgrade of the then-current rating
of any of the Certificates.
(iii) by adding the following new sentence at the end of the
second paragraph of such Section.
In the event the Servicer is terminated
pursuant to Section 11.01 without cause, the Trust
Fund shall be responsible for payment at the time
of such termination of any unreimbursed Servicing
Advances, Monthly Advances, Servicing Fees,
ancillary fees and other reasonable and necessary
out-of-pocket costs associated with the transfer of
servicing to a successor servicer,
(iv) by replacing the word "Purchaser" (i) in the fourth line
of the third paragraph with "Master Servicer", (ii) in the
fifth line thereof with "Trust Fund's" and (iii) by adding
the following new paragraph after the third paragraph of
such section:
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 Servicer for cause
pursuant to Section 10.01 or Section 12.15),
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 Servicer 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. In connection with a
termination for cause, the Servicer will be
reimbursed from the Trust Fund for any unreimbursed
Servicing Advances, Monthly Advances, Servicing
Fees and ancillary fees as such amounts are
received from the related Mortgage Loans; and
(v) By replacing the word "Purchaser" in the last paragraph
thereof with the "Master Servicer".
50. Section 12.02 (Amendment) is hereby amended by changing the word
"Purchaser" to "Xxxxxx Capital, with the prior written consent of the
Trustee, the Master Servicer and the Guarantor".
51. New Sections 12.13 (Intended Third Party Beneficiaries), 12.14
(Guarantor Audit and Inspection Rights; Access to Financial
Statements), 12.15 (Guarantor Right of Termination or Declaration of
Event of Default), 12.16 (Fees for Failure to Provide Timely
Reports), 12.17 (Confidentiality) and 12.18 (Deficiency Judgments)
are added to the 8/1/98 SWSA to read as follows:
Section 12.13 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein, that
the Master Servicer, the Trustee and the Guarantor receive the
benefit of the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions. The
Servicer shall have the same obligations to the Master Servicer, the
Trustee and the Guarantor as if they were parties to this Agreement,
and the Master Servicer, the Trustee and the Guarantor shall have the
same rights and remedies to enforce the provisions of this Agreement
as if they were parties to this Agreement. The Servicer shall only
take direction from the Master Servicer (if direction by the Master
Servicer is required under this Agreement) unless otherwise directed
by this Agreement or the Loss Mitigation Advisory Agreement.
Notwithstanding the foregoing, all rights and obligations of the
Servicer to the Master Servicer, the Trustee, the Trust Fund or the
Guarantor hereunder (other than the right to indemnification) shall
terminate upon the earlier of: (i) the termination of Servicer as the
servicer of the Mortgage Loans under the Agreement and the
appointment of a successor servicer and (2) the termination of the
Trust Agreement and of the Trust Fund pursuant to the Trust
Agreement.
Section 12.14 Guarantor Audit and Inspection Rights:
Access to Financial Statements.
(a) During normal business hours, or at such other times as
may be reasonable and mutually agreeable to the Servicer under the
applicable circumstances, and upon reasonable advance notice to the
Servicer, the Guarantor, with the assistance and cooperation of an
appropriate Servicing Officer or other knowledgeable financial
officer of the Servicer, shall have the right to (i) review and audit
the Servicer's servicing procedures as they relate to the Serviced
Mortgage Loans and (ii) examine and audit the Servicing Files and
related book, records and other information of the Servicer, but
solely as they relate to the Serviced Mortgage Loans and this
Agreement.
(b) Within ninety days after the Closing Date, to the extent
the Servicing Files contain information relating to the underwriting
criteria used in the origination of each Mortgage Loan, the Guarantor
will have the right to review up to 800 of the Servicing Files and
the related underwriting documentation in order to ascertain whether
each such Mortgage Loan was originated generally in accordance with
the Servicer's underwriting standards in effect on the related
origination date. If the Guarantor determines that more than 20% (by
number) of such 800 Mortgage Loans were not originated in accordance
with such underwriting standards, the Guarantor will have the right
to review additional Servicing Files until the Guarantor obtains a
sample containing less than 20% (by number) of Mortgage Loans not so
originated.
(c) With respect to any Mortgage Loan that goes into
foreclosure, the Guarantor will have the right to request the
Servicer to deliver a copy of the related Servicing File to the
Guarantor to review.
(d) Within thirty days of their issuance to the public (in
the event that Servicer is a SEC reporting company) or to its members
or stockholders, the Servicer shall make available to the Guarantor a
copy of its audited financial statements. The Servicer shall also
make available upon the request of the Guarantor any comparable
interim financial statements, but only to the extent that such
statements have been prepared by or on behalf of the Servicer in the
normal course of its business and are available upon request to its
members or stockholders or to the public at large.
Section 12.15 Guarantor Right of Termination or Declaration
of Event of Default.
Notwithstanding any other provision of this Agreement, in
the event either (i) any Class of Certificates issued by the Trust
Fund with an initial rating assigned by the Rating Agencies of "AA"
(or an equivalent rating) is downgraded to "A" (or an equivalent
rating) or lower, or (ii) a Realized Loss is applied to reduce the
principal balance of the Class B Certificates, the Guarantor, in its
sole discretion, shall have the right to terminate the Servicer or
Servicers (or any subservicers) of the Serviced Mortgage Loans to
which such applied Realized Loss is attributable and to appoint a
successor servicer in accordance with the procedures set forth in
Section 9.03.
Section 12.16 Fees for Failure to Provide Timely Reports.
In the event the Master Servicer fails to provide certain
reports to the Guarantor accurately, completely and timely due to the
Servicer's failure to timely provide the necessary information to the
Master Servicer, and the Master Servicer is required to pay a fee to
the Guarantor, such fee shall be paid by the Servicer. The fees are
as follows:
1. For the first such failure, the amount of $500;
2. For the second such failure, the amount of $750.
3. For the third such failure, the amount of $1,000.
4. The fourth such failure shall constitute a Servicer Event
of Default under this Agreement.
Neither the Master Servicer nor the Servicer shall not be
required to make any such payments upon the first such failure during
each successive two-year period following the Closing Date.
Section 12.17 Confidentiality.
The Servicer and the Master Servicer shall keep the terms of
this Agreement and the Trust Agreement regarding fees and expenses
confidential to the extent such information is not otherwise
disclosed in or pursuant to the Trust Agreement or any publicly
available documents.
Section 12.18 Deficiency Judgments.
Pursuant to the Trust Agreement, the Holders of the
Subordinate Certificates that are or may be affected by a Realized
Loss on a Liquidated Mortgage Loan are deemed to have repurchased the
ownership interest in such Liquidated Mortgage Loan held by Holders
of the Senior Certificates. In connection with the liquidation of a
Mortgage Loan, if (i) the Servicer is given timely notice of
instructions by the Master Servicer to seek a deficiency judgment,
(ii) the Servicer is offered suitable indemnification and
reimbursement for expenses from the Holders of Subordinate
Certificates, and (iii) such action is permitted by law, the Servicer
shall seek a deficiency judgment under such Liquidated Mortgage Loan
on behalf of the Holders of the Subordinate Certificates to the
extent of any Realized Loss.
Schedule I
Schedule of Serviced Mortgaged Loans
