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 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 "Schedule I Mortgage Loans") and Schedule
II hereto (the "Schedule II Mortgage Loans") (the Schedule I Mortgage Loans
and the Schedule II Mortgage Loans collectively referred to as 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, 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, the Schedule I Mortgage Loans are currently being serviced
by the Servicer pursuant to an Amended and Restated Flow Interim Servicing
Agreement between Xxxxxx Brothers Bank, FSB (the "Bank") and the Servicer,
dated as of May 1, 2000 (for Fixed and Adjustable Rate Mortgage Loans) (the
"Restated Flow Agreement"), a Flow Interim Servicing Agreement between the
Bank and the Servicer, dated as of May 1, 2000 (for Fixed and Adjustable Rate
Mortgage Loans Group LB-2000) (the "Bank Flow Interim Agreement"), and a Flow
Interim Servicing Agreement between Xxxxxx Capital and the Servicer, dated May
1, 2000 (for Fixed and Adjustable Rate Mortgage Loans Group LC-2000) (the "LC
Flow Interim Agreement").
WHEREAS, pursuant to an Assignment, Assumption and Recognition
Agreement, dated as of August 1, 2000, the Bank has assigned all of its right,
title and interest in and to the related Schedule I Mortgage Loans to Xxxxxx
Capital and delegated all of its duties and obligations as purchaser under the
Restated Flow Agreement and the Bank Flow Interim Agreement to Xxxxxx Capital,
and Xxxxxx Capital has accepted such assignment and delegation.
WHEREAS, the Schedule II Mortgage Loans are currently being serviced
by the Servicer pursuant to a Seller's Warranties and Servicing Agreement
between Xxxxxx Brothers Bank FSB (the "Bank") and the Servicer, dated as of
May 1, 2000 (for Conventional Residential Adjustable and Fixed Rate Mortgage
Loans - Group No. 2000 LBB/00I) (the "5/1/00 SWSA"), a Seller's Warranties and
Servicing Agreement between the Bank and the Servicer, dated as of September
1, 1999 (for Conventional Residential Adjustable and Fixed Rate Mortgage
Loans) (the "9/1/99 SWSA"), a Seller's Warranties and Servicing Agreement
between Xxxxxx Capital and the Servicer, dated June 23, 1999 (for Conventional
Residential Adjustable and Fixed Rate Mortgage Loans, Group No. 1999 LB/00I)
(the "6/23/99 SWSA") and a Seller's Warranties and Servicing Agreement between
Xxxxxx Capital and the Servicer dated as of September 30, 1997 (for
Conventional Residential Adjustable and Fixed Rate Mortgage Loans) (the
"9/30/97 SWSA").
WHEREAS, pursuant to an Assignment, Assumption and Recognition
Agreement, dated as of May 1, 2000, the Bank has assigned all of its right,
title and interest in the related Schedule II Mortgage Loans to Xxxxxx Capital
and delegated all of its duties and obligations as purchaser under the 5/1/00
SWSA and the 9/1/99 SWSA to Xxxxxx Capital, and Xxxxxx Capital has accepted
such assignment and delegation.
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 to consolidate the
servicing of the Serviced Mortgage Loans currently serviced under the
aforementioned Schedule I and Schedule II servicing agreements under the
provisions of the 5/1/00 SWSA.
WHEREAS, Xxxxxx Capital and the Servicer desire that the provisions
of the 5/1/00 SWSA shall apply to the Serviced Mortgage Loans, but only to the
extent provided herein and that this Agreement shall constitute a
Reconstitution Agreement which 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, 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 5/1/00 SWSA
between Xxxxxx Capital and the Servicer incorporated by reference herein
(regardless if such terms are defined in the 5/1/00 SWSA), 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 (i) the servicing of those Schedule I Mortgage Loans
currently serviced under the Bank Flow Interim Agreement and the LC Flow
Interim Agreement and (ii) the servicing of those Schedule II Mortgage Loans
currently serviced under the 9/1/99 SWSA, the 6/23/99 SWSA and the 9/30/97
SWSA shall each be serviced under the 5/1/00 SWSA as reconstituted by this
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
5/1/00 SWSA, except as otherwise provided herein and on Exhibit A hereto, and
that the provisions of the 5/1/00 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 Xxxxxx Capital under the 5/1/00 SWSA
to enforce the obligations of the Servicer under the 5/1/00 SWSA and the term
"Purchaser" as used in the 5/1/00 SWSA in connection with any rights of the
Purchaser 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 5/1/00 SWSA.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of Xxxxxx Capital under the 5/1/00
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.
5. Compliance with HOEPA. The Servicer, if applicable to its
origination practices, shall be in compliance with the Home Ownership and
Equity Protection Act ("HOEPA") and will continue to operate its business in
compliance with HOEPA.
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 in connection
with the transactions contemplated by the Trust Agreement and issuance of the
Certificates 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.
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. 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 5/1/00 SWSA.
11. 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:
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
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
OPTION ONE MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Secretary
Acknowledged by:
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 5/1/00 SWSA
1. Unless otherwise specified herein, any provisions of the 5/1/00 SWSA,
including definitions, relating to (i) representations and warranties
relating to the Mortgage Loans and not relating to servicing of the
Mortgage Loans, (ii) Mortgage Loan repurchase obligations, (iii)
representations and warranties of the Purchaser, (iv) Agency
Transfers, Pass-Through Transfers and reconstitution, (v) Closing
Dates, (vi) Groups and Pools, (vii) Initial Mortgage Interest Rate
Cap, (viii) Gross Margins and (ix) Assignments of Mortgage, shall be
disregarded. The exhibits to the 5/1/00 SWSA and all references to
such exhibits (other than Exhibit X-0, X-0, X-0, G-2 and Exhibit L)
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 "Custodial Agreement" in Article I is hereby amended
in its entirety to read as follows:
Custodial Agreement: The custodial agreement relating to (I)
the custody of the Schedule I Mortgage Loans among (i) U.S.
Bank Trust National Association, as Custodian, the Trustee
and Structured Asset Securities Corporation (the
"Depositor") and (ii) The Chase Manhattan Bank (survivor by
merger with the Chase Bank of Texas, National Association),
as Custodian, the Trustee and the Depositor and (II) the
custody of the Schedule II Mortgage Loans among Xxxxx Fargo
Bank Minnesota, National Association, as Custodian, the
Trustee and the Depositor.
4. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
Custodian: With respect to the Schedule I Mortgage Loans,
(i) U.S. Bank Trust National Association, any successor in
interest or any successor custodian and (ii) The Chase
Manhattan Bank (survivor by merger with the Chase Bank of
Texas, National Association), any successor in interest or
any successor custodian, in each case appointed pursuant to
the related Custodial Agreement. With respect to the
Schedule II Mortgage Loans, (i) Xxxxx Fargo Bank Minnesota,
National Association, any successor in interest or any
successor custodian appointed pursuant to the related
Custodial Agreement.
5. The definition of "Determination Date" in Article I is hereby amended
by replacing the words "month immediately preceding the month of the
related Remittance Date" with "Due Period immediately preceding the
related Remittance Date".
6. The definition of "Eligible Investments" in Article I is hereby
amended by deleting the word "timely" in clause (c).
7. The definition of "Master Servicer" in Article I is hereby amended in
its entirety to read as follows:
Master Servicer: Xxxxx Fargo Bank Minnesota, National
Association or such other Master Servicer, the Depositor,
the Trustee and the Guarantor shall designate by written
instruction to the Servicer.
8. The definition of "Monthly Advance" in Article I is hereby amended by
deleting the word "and" at the end of clause (i) and deleting clause
(ii).
9. The definition of "Opinion of Counsel" is hereby amended by inserting
the words "acceptable to the Trustee, the Guarantor and Xxxxxx
Capital" after the word "counsel" in the first and fourth lines
thereof.
10. The definition of "Prepayment Interest Shortfall Amount" in Article I
is hereby amended by (i) inserting the words "or in part" between the
words "full" and "during" in the second line thereof and (ii)
amending the parenthetical in the fourth line thereof to read as
follows:
(net of related Servicing Fee for Principal Prepayments in
full only).
11. The definition of "Prime Rate" in Article I is hereby amended by
adding "Northeast Edition" after the word "Journal".
12. 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."
13. 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.
14. The definition of "REO Property" in Article I is hereby amended by
replacing the word "Purchaser" with "the Trustee on behalf of the
Trust Fund".
15. New definitions of "Retained Interest", "Retained Interest Holder"
and "Retained Interest Rate" are hereby added to Article I after the
definition of "Repurchase Price" to read as follows:
Retained Interest: With respect to the Schedule I Mortgage
Loans, the interest in respect of each Schedule I Mortgage
Loan retained by the Retained Interest Holder at the
Retained Interest Rate.
Retained Interest Holder: Xxxxxx Capital or any successor in
interest by assignment or otherwise.
Retained Interest Rate: Initially, 0.10% per annum. In the
event that the Servicing Fee Rate is modified, the Retained
Interest Rate shall be modified by a corresponding amount so
that the sum of the Servicing Fee Rate and the Retained
Interest Rate applicable to each Mortgage Loan shall always
equal 0.50% per annum.
16. The definition of "Servicing Fee" in Article I is hereby amended by
deleting the words "obligation of the Purchaser to pay the Servicing
Fee is limited to, and the" in the third sentence.
17. The definition of "Servicing File" in Article I is hereby replaced by
the following:
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer.
18. Article II (Conveyance of Mortgage Loans; Possession of Mortgage
Files; Books and Records; Custodial Agreement; Delivery of Documents)
is hereby deleted in its entirety.
19. Article III (Representation and Warranties; Remedies and Breach) is
hereby amended as follows:
(a) by adding the words "is solvent and" after the word "Company"
in the first sentence of Section 3.01(a)(vi);
(b) by deleting Section 3.01(b)(i) through (b)(ix); and
(c) by adding as the last paragraph to Section 3.01(a) the
following:
It is understood and agreed that the
representations and warranties set forth in Section 3.01(a)
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 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 or otherwise materially and
adversely affects the value of the Mortgage Loans, the
Mortgaged Property or the priority of the security interest
on such Mortgaged Property or the interest of the Trustee or
the Trust Fund, the party discovering such breach shall give
prompt written notice to the other.
Within 60 days of the earlier of either discovery
by or notice to the 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
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 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 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.
20. Section 3.05(c) is hereby deleted in its entirety and replaced by the
following:
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.
21. Section 4.01 (Administration and Servicing of Mortgage Loans) is
hereby amended as follows:
(a) The second paragraph of Section 4.01 is hereby amended by
replacing the word "Purchaser" in (i) the fifth and
twenty-first lines thereof with "Trustee and the Trust
Fund", (ii) in the eighth line thereof with "Trustee" and
(iii) in the twenty-fourth line thereof with "Trustee", (iv)
by changing the word "unless" in the sixth line of the
second paragraph thereof to "except in the case where" and
(v) by adding the following after the word "Loan" in the
twelfth line of the second paragraph:
"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) The fourth and fifth paragraphs are hereby replaced with the
following:
If the Servicer is notified that any superior lienholder has
accelerated or intends to accelerate the obligations secured
by the superior lien, or has declared or intends to declare
a default under the Mortgage or the Mortgage Note secured
thereby, or has filed or intends to file an election to have
the Mortgaged Property sold or foreclosed, the Servicer
shall advance the necessary funds to cure the default or
reinstate the superior lien if the Servicer believes such
actions are in the best interest of the Trust Fund, or take
alternative actions so as to best protect the Trust Fund's
interest in and the security of the related Mortgage Loan.
The Servicer shall thereafter take immediate action to
recover from the Mortgagor the amount so advanced. In the
event the Servicer is unable to recover any such advances
from the Mortgagor, the Servicer shall reimburse itself for
such outstanding advances pursuant to Section 4.05(ii).
(c) The sixth paragraph of Section 4.01 is hereby amended by
deleting (i) the words "a Xxxxxx Xxx-approved servicer or"
in the second line thereof, (ii) the words "lenders imposed
by Xxxxxx Mae or for" in the fifth line thereof, and (iii)
the words "Xxxxxx Xxx or" in the sixth line thereof.
(d) The seventh paragraph of Section 4.01 is hereby amended by
replacing all references to the word "Purchaser" with
"Master Servicer, the Trustee or the Trust Fund".
(e) The eighth paragraph of Section 4.01 is hereby amended by
replacing the word "Purchaser" with "Trustee, the Master
Servicer and the Trust Fund".
(f) The ninth paragraph of Section 4.01 is hereby amended by
replacing all references to the word "Purchaser" with
"Master Servicer, the Trustee or the Trust Fund".
22. Section 4.02 (Liquidation of Mortgage Loans) is hereby amended by
replacing the word "Purchaser" in the seventh and twentieth lines of
the first paragraph thereof with "Trustee and the Trust Fund",
replacing the word "Purchaser" in the first line of the third
paragraph thereof with "Master Servicer and Guarantor", by replacing
the word "Purchaser" in the fourth and tenth lines of the third
paragraph thereof with "Master Servicer, with the Guarantor's
consent" and by changing each reference to "90 days " therein to "75
days (or later at the discretion of the Servicer)" and the reference
to "120 days" to "75 days (or later at the discretion of the
Servicer)".
23. 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. 2000 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 Xxxxx Fargo Bank Minnesota,
National Association, as Master Servicer for ARC 2000-BC3
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 4.21.
(c) by adding the words "and the Retained Interest" after the
words "Servicing Fees" in the first sentence of the last
paragraph; and
(d) by adding the following paragraph immediately after the
original last paragraph thereof:
On each Remittance Date, the Servicer shall remit the
Retained Interest with respect to the Schedule I Mortgage
Loans to the Retained Interest Holder by wire transfer of
immediately available funds to the following account:
Xxxxxx Brothers Holdings Inc.
ABA 02100089
Acct No. 40615501
Attn: Xxxxxx Xxxxxxxxxxxx (000) 000-0000
Ledger 4 IKJ (ARC 2000-BC3)
24. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended as follows:
(a) by adding the following to the beginning of clause (i): "to
pay any outstanding MGIC Insurance Premiums", 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 4.20. All Monthly Advances
will be reimbursable to the Servicer from late payments,
Insurance Proceeds, Condemnation Proceeds and Liquidations
Proceeds from the Mortgage Loan as to which such
unreimbursed Monthly Advance was made. The Servicer may
recover at any time from amounts on deposit in the Custodial
Account the amount of any Monthly Advances that the Servicer
deems nonrecoverable or that remains unreimbursed to the
Servicer from the related Liquidation Proceeds of the
Mortgage Loan after the final liquidation of the related
Mortgage Loan. In addition, the Servicer may, at any time,
withdraw from the Collection Account funds that were not
included in the Total Available Amount (as defined in the
Trust Agreement) for the preceding Distribution Date to
reimburse itself for Monthly Advances previously made by the
Servicer, to the extent permitted by the Guarantor.
Notwithstanding the foregoing paragraph, no Monthly Advances
or Servicing Advances shall be required to be made by the
Servicer if such Advance could, if made, be, in the
Servicer's reasonable judgment, nonrecoverable. The
determination by the Servicer that it has made a
nonrecoverable Monthly Advance or Servicing Advance, or that
any proposed Monthly Advance or Servicing Advance would be a
nonrecoverable advance, shall be evidenced by an Officer's
Certificate of the Servicer delivered to the Depositor, the
Guarantor, the Master Servicer and the Trustee.
The Servicer may enter into a facility with any person which
provides that such person (an "Advancing Person") may fund
Monthly Advances and/or Servicing Advances, although no such
facility shall reduce or otherwise affect the Servicer's
obligation to fund such Monthly Advances and/or Servicing
Advances. Any Monthly Advances and/or Servicing Advances
made by an Advancing Person shall be reimbursed to the
Advancing Person in the same manner as reimbursements would
be made to the Servicer if such Monthly Advances or
Servicing Advance were funded by the Servicer.
25. Section 4.06 (Establishment of and Deposits to Escrow Account) shall
be amended by deleting the words "the Purchaser of Conventional
Residential Adjustable and Fixed Rate Mortgage Loans, Group No. 2000
LB/00I" in the fourth, fifth and sixth 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".
26. Section 4.09 (Protection of Accounts) is hereby amended by replacing
the word "Purchaser" in the twelfth line of the third paragraph
thereof with "Trustee and the Trust Fund".
27. Section 4.10 (Maintenance of Hazard Insurance) is hereby amended by
replacing the words "a generally acceptable 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)", replacing the words
"Xxxxxx Mae" in the second and third paragraphs thereof with "Xxxxxxx
Mac", and adding the words "on behalf of the Trust Fund" after the
words "loss payee" in the sixth paragraph thereof.
28. Section 4.12 (Maintenance of Fidelity Bond and Errors and Omissions
Insurance) is hereby amended by deleting the words "Xxxxxx Mae in the
Xxxxxx Xxx Guides".
29. Section 4.15 (Title, Management and Disposition of REO Property) is
hereby amended by replacing the word "Purchaser" in the first
paragraph with "Trustee" and replacing the word "Purchaser" in the
second paragraph with "Trustee and the Trust Fund".
30. Section 4.16 (Real Estate Owned Reports) is hereby amended by
replacing the words "tenth Business Day following the Record Date of
each month" with "10th calendar day of each month".
31. Section 4.20 (Monthly Advances) is hereby deleted in its entirety and
replaced with the following:
On the Business Day immediately preceding each
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.
32. New Sections 4.21 and 4.22 are hereby added to Article IV as follows:
Section 4.21 Compensating Interest.
The Servicer shall deposit in the Custodial Account
on a daily basis, and retain therein with respect to each
Principal Prepayment, the Prepayment Interest Shortfall
Amount, if any, for the month of such distribution. 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 4.22 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.
33. Section 5.01 (Remittances) is hereby amended by 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 4.20 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, together with any
additional interest required to be deposited in the
Custodial Account in connection with a Prepayment Interest
Shortfall Amount pursuant to Section 4.21 and minus (d) 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:
Well 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)
34. Section 5.02 (Statements to Purchaser) is hereby amended as follows:
(a) 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 immediately
preceding Business Day)"; (ii) deleting the words "Exhibit H
annexed hereto" with "Exhibit A-1 attached hereto or other
format mutually acceptable to the Servicer, the Master
Servicer and the Guarantor", and (iii) inserting the
following sentences 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, (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 (and the data provided
pursuant to Section 6.07) into a format acceptable to
the Guarantor and provide monthly reports to the
Guarantor pursuant to the Trust Agreement.
(b) by deleting the (i) last sentence of the first paragraph,
(ii) second paragraph and (iii) first sentence of the third
paragraph; and
(c) by restating the last sentence of the third paragraph to
read as follows: "The Servicer shall provide the Master
Servicer as it becomes reasonably available to the Servicer
with such information concerning the Mortgage Loans and
annual remittances as is necessary for each
Certificateholder to prepare its federal income tax return
and for the Master Servicer to prepare the federal income
tax return of the Trust Fund.
35. Section 5.03 (Due Dates Other Than the First of the Month) is hereby
amended by deleting the first, fourth and sixth sentences thereto.
36. Section 6.01 (Transfers of Mortgaged Property) is hereby amended by
replacing the word "Purchaser" in the sixth line thereof with
"Trustee and the Trust Fund".
37. Section 6.02 (Satisfaction of Mortgages and Release of Mortgage
Files) is hereby amended by replacing the word "Purchaser" in the
first paragraph with "Trustee", adding "arrange for the Custodian to"
after the words "the Trustee shall" in the second sentence, replacing
the first reference to "Purchaser" with "Trustee and the Trust Fund"
in the first sentence of the second paragraph.
38. Section 6.04 (Annual Statement as to Compliance) is hereby amended by
changing the reference therein to "April 30, 2000" to "April 30,
2001".
39. Section 6.05 (Annual Independent Public Accountants' Servicing
Report) is hereby amended by changing each reference therein to
"April 30, 2000" to "April 30, 2001".
40. Section 6.07 (Servicing Tape) is hereby amended by replacing the
words "Remittance Date" with "10th calendar day of each month" and
adding the words "in the form attached hereto as Exhibit A-1 or other
mutually acceptable format" after the words "computer readable file".
41. The parties hereto acknowledge that Article VII (Agency Transfer;
Pass-Through Transfer) shall not apply to this Agreement.
42. Section 7.04 (Compensating Interest) of the Agreement is replaced by
Section 4.21 herein.
43. Section 9.01 (Indemnification; Third Party Claims) is hereby amended
by changing the word "Purchaser" in the first, seventh and eleventh
lines thereof to "the Master Servicer, the Guarantor and the Trust
Fund"; by changing the word "Purchaser" in the third, thirteenth and
fourteenth lines thereof to "the Master Servicer, the Guarantor or
the Trust Fund"; and by changing the word "Purchaser" in the last
sentence thereof to the "Trust Fund".
44. Section 9.02 (Merger or Consolidation of the Company) is hereby
amended by (i) inserting the words ", with the prior written consent
of the Guarantor" after the word "shall" in the second paragraph
thereof and (ii) replacing the words "Xxxxxx Mae" in such second
paragraph with "Xxxxxxx Mac".
45. Section 9.03 (Limitation on Liability of Company and Others) is
hereby amended by changing the word "Purchaser" in the second line
thereof to "Trust Fund, the Trustee and the Master Servicer"; and by
changing the word "Purchaser" in the fourteenth line thereof to
"Master Servicer" and in the last sentence thereof to "Trust Fund".
46. Section 9.04 (Limitation on Resignation and Assignment by Company) 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.
47. Section 10.01 (Events of Default) is hereby amended by:
(a) changing "five days" to "one day" in clause (a) and changing
the word "Purchaser of such clause" to "the party discovering
such breach";
(b) changing "30 days" to "15 days" in clause (b) and changing
the word "Purchaser" to "the party discovering such breach";
(c) changing the words "Xxxxxx Mae" to "Xxxxxxx Mac" in clause
(g); and
(d) adding the following sentence as the last sentence to the
third paragraph of Section 10.01: "Upon a termination of the
Servicer pursuant to this Section 10.01 or Section 12.14,
all unreimbursed Servicing Fees, Servicing Advances and
Monthly Advances still owing to the Servicer at the time of
such termination shall be paid by the Trust Fund as such
amounts are received from the related Mortgage Loans.
48. Section 11.01 (Termination) is hereby amended by restating subclause
(ii) thereof to read as below and adding the following sentence
immediately after clause (ii) of such Section:
(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.
Upon a termination of this Agreement pursuant to
clause (ii) of this Section 11.01 without cause, all
unreimbursed Servicing Fees, Servicing Advances and Monthly
Advances still owing the terminated Servicer shall be paid
at the time of such termination by the Trust Fund.
49. The first paragraph of Section 11.02 (Termination Without Cause) is
hereby deleted and replaced with the following:
With the prior written consent of Xxxxxxx Mac, the
Directing Holder may terminate the rights and obligations of
the Servicer under this Agreement without cause. 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 herein. The Servicer
shall comply with the termination procedures set forth in
Section 12.01 hereof. 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 from its
own funds without reimbursement for the termination of
servicing without cause pursuant to this Section 11.02 shall
be equal to (a) the outstanding principal balance of such
Mortgage Loan at the time of such servicing termination
multiplied by (b) the related percentage for such Mortgage
Loan as determined by the product type and the number of
months since such Mortgage Loan's origination, as such
percentage is indicated in Exhibit L attached to the 5/1/00
SWSA. All unreimbursed Servicing Fees, Servicing Advances
and Monthly Advances still owing the Servicer shall be paid
by the Directing Holder from its own funds within 5 Business
Days of the date of such termination without right of
reimbursement from the Trust Fund.
The remaining paragraphs of Section 11.02 shall become part
of Section 11.03 as provided in item hereof.
50. A new Section 11.03 (Termination of Distressed Mortgage Loans) is
hereby added to the 5/1/00 SWSA the first paragraph of which is as
follows and the second, third, fourth and fifth paragraphs of which
are the existing second, third, fourth and fifth paragraphs of
Section 11.02; provided, however, the reference to Section 7.03 in
the fifth paragraph shall be changed to Section 4.20:
Section 11.03 Termination of Distressed Mortgage Loans.
Subject to the requirements set forth in this
Section 11.03, the Directing Holder may terminate this
Agreement, with the prior written consent of the Master
Servicer, the Trustee, the Guarantor and the Depositor, with
respect to the servicing of those Mortgage Loans that are
determined to be Distressed Mortgage Loans as of the Notice
Date and servicing of such Mortgage Loans will be
transferred to the Special Servicer. The appointment of a
Special Servicer by the Directing Holder and the execution
of a special servicing agreement between the Directing
Holder and the Special Servicer shall be subject to the
consent of the Master Servicer, the Trustee, the Guarantor
and the Depositor, and the receipt of confirmation from the
Rating Agencies that the transfer of servicing to the
Special Servicer shall not result in a reduction of any
rating previously given by such Rating Agency to any
Certificate. Any monthly fee paid to the Special Servicer in
connection with any Mortgage Loan serviced by such Special
Servicer shall not exceed one-twelfth of the product of (a)
0.50% and (b) the outstanding principal balance of such
Mortgage Loan.
All reasonable costs and expenses incurred in
connection with a transfer of servicing to the Special
Servicer including, without limitation, the costs and
expenses of the Master Servicer or any other Person in
appointing a Special Servicer, or of transferring the
Servicing Files and the other necessary data to the Special
Servicer shall be paid by the Directing Holder from its own
funds without reimbursement.
The Directing Holder shall be responsible for the
delivery of all required Transfer Notices and will send a
copy of the Transfer Notice to the Master Servicer.
51. Section 12.01 (Successor to Company) is hereby amended as follows:
(i) by replacing the words "Prior to" with "Upon" in the first
line of the first paragraph thereto;
(ii) by replacing the words "to Section 11.02 after the 90 day
period has expired" with "Section 12.14" in the second and
third lines of the first paragraph thereof;
(iii) by changing the word "Purchaser" in the third line of the
first paragraph to "Master Servicer, with the consent of the
Guarantor," and by adding the words ", in accordance with
the Trust Agreement," after the word "shall" in the third
line of the first paragraph thereto;
(iv) 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 the first paragraph of Section 11.02,
the Directing Holder 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 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.
(v) by amending the original second sentence of the first
paragraph thereof by (a) changing the word "Purchaser" to
"Depositor and the Master Servicer" and (b) by adding the
following proviso at the end of such sentence:
; provided, however, that no such compensation shall be in
excess of that permitted the Servicer under this Agreement.
(vi) by replacing the word "promptly" in the first line of the
third paragraph thereof with "within seven (7) Business Days";
(vii) by adding the following new sentence at the end of the third
paragraph of such Section.
In the event the Servicer is terminated pursuant to
Section 11.02, the Directing Holder shall be responsible for
payment from its own funds without reimbursement of any
out-of-pocket costs incurred by the Servicer and the Master
Servicer in connection with the transfer of the Serviced
Mortgage Loans to a successor servicer.
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),
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.
52. Section 12.07 (Relationship of Parties) is hereby amended by
replacing the word "Purchaser" with "Trustee, the Trust Fund, the
Master Servicer, the Guarantor or Xxxxxx Capital".
53. New Sections 12.12 (Intended Third Party Beneficiaries), 12.13
(Guarantor Audit and Inspection Rights; Access to Financial
Statements), 12.14 (Guarantor Right of Termination or Declaration of
Event of Default), 12.15 (Fees for Failure to Provide Timely
Reports), 12.16 (Confidentiality) and 12.17 (Deficiency Judgments)
are added to the 5/1/00 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, the Trustee, the
Guarantor 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, the Trustee, the Guarantor and the
Directing Holder as if they were parties to this Agreement,
and the Master Servicer, the Trustee, the Guarantor 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 or the Loss Mitigation
Advisory 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, and all
rights of the Guarantor hereunder (other than the right to
indemnification) shall terminate upon termination of the
Guaranty.
Section 12.13 Guarantor Audit and Inspection Rights:
Access to Financial Statements.
(a) During business hours, or at such other times
as may be reasonable 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 applicable underwriting standards. If
the Guarantor determines that more than 20% (by number) of
such 800 Mortgage Loans were not originated in accordance
with the applicable 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 12.14 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 12.01.
Section 12.15 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
be required to make any such payments upon the first such
failure during each successive two year period following the
Closing Date.
Section 12.16 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 12.17. 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 directed 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.
EXHIBIT A-1
MONTHLY REPORTING FORMAT TO XXXXX FARGO BANK
The format for the tape should be:
1. Record length of 240
2. Blocking factor of 07 records per block
3. ASCII
4. Unlabeled tape
5. 6250 or 1600 BPI (please indicate)
COBOL
Field Name Position Length "picture"
---------- -------- ------ ---------
Master Servicer No. 001-002 2 "01"
Unit Code 003-004 2 " "
Loan Number 005-014 10 X(10)
Borrower Name 015-034 20 X(20)
Old Payment Amount 035-045 11 S9(9)V9(02)
Old Loan Rate 046-051 6 9(2)V9(04)
Servicer Fee Rate 052-057 6 9(2)V9(04)
Servicer Ending Balance 058-068 11 S9(9)V9(02)
Servicer Next Due Date 069-076 8 CCYYMMDD
Curtail Amt 1 - Before 077-087 11 S9(9)V9(02)
Curtail Date 1 088-095 8 CCYYMMDD
Curtail Amt 1 - After 096-106 11 S9(9)V9(02)
Curtail Amt 2 - Before 107-117 11 S9(9)V9(02)
Curtail Date 2 118-125 8 CCYYMMDD
Curtail Amt 2 - After 126-136 11 S9(9)V9(02)
Curtail Amt 3 - Before 137-147 11 S9(9)V9(02)
Curtail Date 3 148-155 8 CCYYMMDD
Curtail Amt 3 - After 156-166 11 S9(9)V9(02)
New Payment Amount 167-177 11 S9(9)V9(02)
New Loan Rate 178-183 6 9(2)V9(04)
Index Rate 184-189 6 9(2)V9(04)
Remaining Term 190-192 3 9(3)
Liquidation Amount 193-203 11 S9(9)V9(02)
Action Code 204-205 2 X(02)
Scheduled Principal 206-216 11 S9(9)V9(02)
Scheduled Interest 217-227 11 S9(9)V9(02)
Scheduled Ending Balance 228-238 11 S9(9)V9(02)
FILLER 239-240 2 X(02)
Trailer Record:
Number of Records 001-006 6 9(06)
FILLER 007-240 234 X(234)
Field Names and Descriptions:
Field Name Description
---------- -----------
Master Servicer No. Hard code as "01" used internally
Unit Code Hard code as " " used internally
Loan Number Investor's loan number
Borrower Name Last name of borrower
Old Payment Amount P&I amount used for the applied payment
Old Loan Rate Gross interest rate used for the applied payment
Servicer Fee Rate Servicer's fee rate
Servicer Ending Balance Ending actual balance after a payment has been applied
Servicer Next Due Date Borrower's next due date for a payment
Curtailment Amount 1 - Before Amount of curtailment applied before the payment
Curtailment Date 1 Date of curtailment should coincide with the payment date
applicable to the curtailment
Curtailment Amount 1 - After Amount of curtailment applied after the payment
Curtailment Amount 2 - Before Amount of curtailment applied before the payment
Curtailment Date 2 Date of curtailment should coincide with the payment date
applicable to the curtailment
Curtailment Amount 2 - After Amount of curtailment applied after the payment
Curtailment Amount 3 - Before Amount of curtailment applied before the payment
Curtailment Date 3 Date of curtailment should coincide with the payment date
applicable to the curtailment
Curtailment Amount 3 - After Amount of curtailment applied after the payment
New Payment Amount For ARM, Equal, or Buydown loans, when a payment
change occurs, this is the scheduled payment
New Loan Rate For ARM loans, when the gross interest rate change occurs,
this is the scheduled rate
Index Rate For ARM loans, the index rate used in calculating the new gross
interest rate
Remaining Term For ARM loans, the number of months left on the loan used
to determine the new P&I amount
Liquidation Amount The payoff amount of the loan
Action Code For delinquent loans:
12 -- Relief Provisions
15 -- Bankruptcy/Litigation
20 -- Referred for Deed-in-lieu, short sale
30 -- Referred to attorney to begin foreclosure
60 -- Loan Paid in full
70 -- Real Estate Owned
Scheduled Principal Amount of principal from borrower payment due to bondholder
Scheduled Interest Amount of interest from borrower payment due to bondholder
Scheduled Ending Balance Ending scheduled balance of loan
FILLER Should be filled with spaces
Delinquency Reporting Data Fields to be
provided to Master Servicer
Servicer Loan #
Investor Loan #
Borrower Name
Address
State
Due Date
Action Code
FC Received
File Referred to Atty
NOD
Complaint Filed
Sale Published
Target Sale Date
Actual Sale Date
Loss Mit Approval Date
Loss Mit Type
Loss Mit Estimated Completion Date
Loss Mit Actual Completion Date
Loss Mit Broken Plan Date
BK Chapter
BK Filed Date
Post Petition Due
Motion for Relief
Lift of Stay
RFD
Occupant Code
Eviction Start Date
Eviction Completed Date
List Price
List Date
Accepted Offer Price
Accepted Offer Date
Estimated REO Closing Date
Actual REO Sale Date
Schedule I
Schedule I of Serviced Mortgage Loans
(for Ameriquest, BNC, Long Beach 1991-A through 1991-H and Freemont)
Schedule II
Schedule II of Serviced Mortgage Loans
(for Option One 1991, 1997-1B, 1999-2, 1999-3,
2000 XX-0, 0-0, Xxxxxxxx 3 and Mortgage 4 collateral)
