Execution
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of January, 2000, by and between XXXXXX CAPITAL, A
DIVISION OF XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation ("Xxxxxx
Capital"), and OPTION ONE MORTGAGE CORPORATION, a California 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 ("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
January 1, 2000 (the "Trust Agreement"), among the Trustee, Norwest Bank
Minnesota, National Association, as master servicer ("Norwest," and, together
with any successor Master Servicer appointed pursuant to the provisions of the
Trust Agreement, the "Master Servicer") and SASCO.
WHEREAS, multiple classes of certificates (the "Certificates"),
including the Class X Certificate, will be issued on the Closing Date pursuant
to the Trust Agreement, and Xxxxxx Brothers Inc. or a nominee thereof
(together with any successor in interest thereto and any permitted assignee or
transferee thereof, the "Directing Holder") is expected to be the initial
registered holder of the Class X Certificate.
WHEREAS, Xxxxxx Capital desires that the Servicer service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Directing Holder 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, pursuant to an Assignment and Assumption Agreement, dated as
of January 1, 2000, Xxxxxx Brothers Bank, FSB ("Bank") has assigned all of its
right, title and interest under that Seller's Warranties and Servicing
Agreement, dated as of September 1, 1999, between Bank and Servicer (the
"9/1/99 SWSA") to Xxxxxx Capital.
WHEREAS, Xxxxxx Capital and the Servicer agree that the provisions of
the Seller's Warranties and Servicing Agreement, dated June 23, 1999
(Conventional Residential Adjustable and Fixed Rate Mortgage Loans), Group No.
1999 LB/00I (the "6/23/99 SWSA") shall apply to the Serviced Mortgage Loans
only to the extent provided by this Reconstituted Servicing Agreement for so
long as such Serviced Mortgage Loans remain subject to the provisions of the
Trust Agreement.
WHEREAS, Norwest 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 Servicing Agreement.
WHEREAS, Xxxxxx Capital and the Servicer intend that each of the
Master Servicer and the Directing Holder 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 6/23/99 SWSA
between Xxxxxx Capital and the Servicer incorporated by reference herein,
shall have the meanings ascribed to such terms in the Trust Agreement.
2. Merger. For administrative convenience, the Servicer and Xxxxxx
Capital hereby agree that the servicing of those Serviced Mortgage Loans
currently serviced under the 9/1/99 SWSA shall be transferred to the 6/23/99
SWSA as reconstituted by this Reconstituted Servicing Agreement.
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
6/23/99 SWSA, except as otherwise provided herein and on Exhibit A hereto, and
that the provisions of the 6/23/99 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. 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 the "Purchaser" (as defined in the
6/23/99 SWSA) to enforce the obligations of the Servicer under the 6/23/99
SWSA and the term "Purchaser" as used in the 6/23/99 SWSA shall refer to the
Master Servicer or the Trustee as the context requires. 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, as provided in Article X of the 6/23/99
SWSA.
5. No Representations. Other than those representations and
warranties made by the Servicer in Article III of the 6/23/99 SWSA, neither
the Servicer nor the Master Servicer shall be obligated or required to make
any representations and warranties regarding the Serviced Mortgage Loans in
connection with the transactions contemplated by the Trust Agreement and
issuance of the Certificates issued pursuant thereto.
6. Notices. All notices and communications between or among the
parties hereto 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. 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 SERVICING 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 SWSA.
10. Notices and Remittances to the Master Servicer and Trustee. All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Norwest Bank Minnesota, National Association
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Master Servicing Department, ARC 2000-BC1
All remittances required to be made to the Master Servicer under this
Agreement shall be made to the following wire account:
Norwest Bank Minnesota, National Association
Minneapolis, Minnesota
ABA#: 000-000-000
Account Name: Corporate Trust Clearing
Account Number: 0000000000
For further credit to: # 13633800 ARC 2000-BC1
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 _NC.1179
Charlotte, North Carolina 28288-1174
Attention: Structured Finance Trust Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
11. Errors and Omissions Insurance. The Servicer shall keep in force
during the term of this Agreement a fidelity bond and a policy or policies of
insurance covering errors and omissions in the performance of the Servicer's
obligations under this Agreement. Such fidelity bond and policy or policies
shall be maintained with recognized insurers and shall be in such form and
amount as would permit the Servicer to be qualified as a FNMA or FHLMC
seller-servicer. The Servicer shall be deemed to have complied with this
provision if an affiliate of the Servicer has such errors and omissions and
fidelity bond coverage and, by the terms of such insurance policy or fidelity
bond, the coverage afforded thereunder extends to the Servicer. The Servicer
shall furnish to the Master Servicer a copy of each such bond and insurance
policy upon receipt thereof by the Servicer.
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: Vice President
OPTION ONE MORTGAGE CORPORATION
By: /s/ Xxxxxxx X. X'Xxxxx
---------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Senior Vice President
EXHIBIT A
Modifications to the SWSA
1. The definition of "Monthly Advance" in Article I is hereby amended by
replacing the words "immediately preceding Determination Date" in clause
(ii) thereof with the words "on such Remittance Date".
2. 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 (i) U.S. Bank Trust National
Association, as Custodian, the Trustee and Structured Asset
Securities Corporation (the "Depositor").
3. The definition of "Prepayment Interest Shortfall Amount" in Article I is
hereby amended by amending the parenthetical in the fourth line thereof
to read as follows:
"(net of related Servicing Fee for Principal Prepayments in full
only)".
4. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
Custodian: U.S. Bank Trust National Association.
5. The definition of "Prepayment Interest Shortfall Amount" is hereby
amended by (i) inserting the words "or in part" between the words "full"
and "during" in the second line thereof.
6. 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 and the debt obligations of
which are rated AA or better by S&P, Duff & Xxxxxx, Xxxxx'x
or Fitch or (ii) the corporate trust department of any bank
the debt obligations of which are rated at least A-1 or its
equivalent by either of Fitch or Duff & Xxxxxx and S&P or
Xxxxx'x.
7. Section 4.04 (Establishment of and Deposit to Custodial Account) is
hereby amended as follows:
(a) the words "in trust for the Purchaser of Conventional
Residential Adjustable and Fixed Rate Mortgage Loans, Group No.
1999 LB/00I" in the fourth and fifth lines of the first
sentence of the first paragraph shall be replaced by the
following: "in trust for Norwest Bank Minnesota, National
Association, as Master Servicer for ARC 2000-BC1 Trust".
(b) by deleting the word "and" at the end of clause (ix), by
removing the period from the end of clause (x) and replacing it
with a semi-colon followed by the word "and", and by adding a
new clause (xi) to read as follows:
(xi) the amount of any Prepayment Interest Shortfall
Amount required to be paid by the Servicer pursuant
to Section 7.04.
8. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended as follows:
(a) 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 7.03, it being understood
that in the case of any such reimbursement, the Servicer's
right thereto shall be prior to the rights of the Trust
Fund.
9. Section 4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by deleting the words "Purchaser of Conventional Residential
Adjustable and Fixed Rate Mortgage Loans, Group No. 1999 LB/00I" in the
fourth, fifth and sixth line of the first sentence of the first
paragraph, and replacing it with the following:
"in trust for Norwest Bank, Minnesota, National Association, as
Master Servicer for the ARC 2000-BC1 Trust".
10. Section 5.01 (Remittances) is hereby amended by inserting the following
parenthetical between the words "amounts" and "deposited" in the first
paragraph of such section:
"(on a scheduled/scheduled basis)"
11. Section 5.02 (Statements to Purchaser) is hereby amended by (i) replacing
the words "Remittance Date" in the first line thereof with the words
"10th calendar day" (or if such 10th calendar day is not a Business Day,
the next succeeding Business Day) and (ii) inserting the following
sentence immediately following the first sentence in the first paragraph
of such Section:
"Such Monthly Remittance Advice shall also include on a
cumulative and aggregate basis (i) the amount of claims filed,
(ii) the amount of any claim payments made and (iii) the amount
of claims denied with respect to those Serviced Mortgage Loans
covered by the loan-level primary mortgage insurance policies
provided by MGIC and PMI Mortgage Insurance Co. or any other
provider of primary mortgage insurance purchased by the Trust
(collectively, the "PMI Policies").
12. The first three sentences of Section 11.02 (Termination Without Cause)
are hereby deleted and replaced with the following:
At the sole discretion of the Directing Holder, the Directing Holder
may terminate the rights and obligations of the Servicer under this
Agreement. Any such termination shall be with 30 days' prior notice, in
writing and delivered to the Trustee, the Master Servicer and the
Servicer by registered mail as provided in Section 12.05. The Master
Servicer or the Trustee shall have no right to terminate the Servicer
pursuant to the foregoing sentences of this Section 11.02. The
termination fee to be paid by the Directing Holder for the termination of
servicing without cause pursuant to this Section 11.02 shall be 1.25% of
the outstanding principal balance of the Mortgage Loans for which
servicing is being terminated.
13. A new Section 12.12 (Intended Third Party Beneficiaries) is added to the
SWSA to read as follows:
Section 12.12 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the intent
of such parties as set forth herein, that the Master Servicer and the
Directing Holder 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 and the Directing Holder as if they were parties to this
Agreement, and the Master Servicer and the Directing Holder 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. Notwithstanding the foregoing, all rights and obligations of
the Master Servicer 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.
14. The parties hereby agree that all definitions in Article I and the
provisions of Section 11.02 of the SWSA relating to the transfer of
Distressed Mortgage Loans to a successor Special Servicer shall not apply
to this Agreement.
