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 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") on a
servicing-retained basis 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, Xxxxxx Capital and the Servicer agree that the provisions of
the 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 (the "SWSA") shall apply to the
Serviced Mortgage Loan only to the extent provided herein and that this
Reconstituted Servicing Agreement shall govern the Serviced Mortgage Loans for
so long as such Serviced Mortgage Loans remain subject to the provisions of
the Trust Agreement.
WHEREAS, 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 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 SWSA
incorporated by reference herein, 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
SWSA, except as otherwise provided herein and on Exhibit A hereto, and that
the provisions of the SWSA, as so modified, are and shall be a part of this
Agreement to the same extent as if set forth herein in full.
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 pursuant to the Trust Agreement, shall have the same rights as the
"Purchaser" (as defined in the SWSA) to enforce the obligations of the
Servicer under the SWSA. 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 SWSA.
4. No Representations. Other than those company representations and
warranties made by the Servicer in Article III, Section 3.01 of the 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.
5. Notices. All notices and communications between or among the
parties hereto 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.
6. 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.
7. 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.
8. 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 Warranties and Servicing
Agreement.
9. Notices and Remittances to the Master Servicer. All notices
required to be delivered to the Purchaser or 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
Any 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 - N.C. 1179
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Structured Finance Trust 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: Vice President
AMERIQUEST MORTGAGE COMPANY
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
EXHIBIT A
Modifications to the Warranties and Servicing Agreement
1. The definition of "Custodial Agreement" in Article I is hereby deleted
and replaced with the following:
"The custodial agreement relating to custody of the Serviced
Mortgage Loans among Chase Bank of Texas, National Association, as
Custodian, First Union National Bank, as Trustee, and Structured
Asset Securities Corporation, as Depositor. "
2. The definition of "Monthly Advance" in Article I is hereby amended by
adding at the end of such definition the following: ", but only to
the extent that such amount is expected, in the reasonable judgment
of the Company, to be recoverable from collections or other
recoveries in respect of such Mortgage Loan."
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 "Qualified Depository" in Article I is hereby
deleted and replaced with the following:
"Either (i) a depository the accounts of which are insured
by the FDIC through the BIF or the SAIF and the debt obligations of
which are rated AA or better by S&P, Duff & Xxxxxx, Fitch or Xxxxx'x
or (ii) the corporate trust department of any bank the debt
obligations of which are rated at least A-1 or its equivalent by
Fitch or Duff & Xxxxxx and S&P or Xxxxx'x."
5. The definition of "Remittance Date" in Article I is hereby deleted and
replaced with the following:
"The 18th day (or if such 18th day is not a Business Day,
the first Business Day immediately following) of any month, following
the First Remittance Date."
6. The following sentence is added to the end of the second paragraph of
Section 7.01:
The Servicer shall be entitled to reimbursement for such
Monthly Advances to the same extent as for all other Monthly Advances
made pursuant to Section 5.03."
7. The words "the Purchaser of Conventional Residential Adjustable Rate
Mortgage Loans, Ameri Group 2, and various Mortgagors" in the first
paragraph of Section 4.04 are hereby deleted and replaced with the
following: "Norwest Bank Minnesota, National Association, as master
servicer for the ARC 2000-BC1 Trust."
8. Section 4.04 is further amended by deleting the word "and" at the end
of clause (viii), replacing the period at the end of clause (ix) with
"; and", and adding the following immediately after clause (ix):
"(x) any principal prepayment penalties received in
connection with the Mortgage Loans."
9. Section 4.05 is amended by deleting the word "and" at the end of
clause (vi), replacing the period at the end of clause (vii) with ";
and", and adding the following clause (viii) immediately following
clause (vii):
"(viii) to reimburse itself for Monthly Advances of the
Servicer's funds made pursuant to Section 7.01, 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."
10. The words "the Purchaser of Conventional Residential Adjustable Rate
Mortgage Loans, Ameri Group 2, and various Mortgagors" in the first
paragraph of Section 4.06 are hereby deleted and replaced with the
following: "Norwest Bank Minnesota, National Association, as master
servicer for the ARC 2000-BC1 Trust."
11. The first paragraph of Section 5.01 is hereby deleted and replaced
with the following:
"On each Remittance Date the Servicer shall remit 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 related Due Period (net of charges
against or withdrawals from the Custodial Account pursuant to Section
4.05), plus (b) all amounts, if any, which the Servicer is obligated
to distribute pursuant to Section 7.01, minus (c) any amounts
attributable to Principal Prepayments, Liquidation Proceeds,
Insurance Proceeds, Condemnation Proceeds or REO Disposition Proceeds
received after the applicable Principal Prepayment Period, which
amounts shall be remitted on the following Remittance Date, together
with any Prepayment Interest Shortfall Amount required to be
deposited in the Custodial Account in connection with such Principal
Prepayment in accordance with Section 7.01, 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 next succeeding the Due Period for such amounts."
12. Section 5.02 (Statements to Purchaser) is hereby amended by (i)
deleting the words "Remittance Date" in the first line of such
Section, and substituting the following: "tenth calendar day of each
month (or if such tenth calendar day is not a Business Day, the next
succeeding Business Day)" and (ii) inserting the following sentence
at the end of the first paragraph of such Section:
"Such Monthly Remittance Statement shall also include on a
cumulative and aggregate basis (i) the amount of claims file, (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 PMI
Mortgage Insurance Co. or any other provider of primary mortgage
insurance purchased by the Trust (collectively, the "PMI Policies").
13. The parties hereby agree that Section 4.19 ("Transfer Upon
Delinquency") of the SWSA shall not apply to the Serviced Mortgage
Loans.
14. The following new paragraph is added to the end of Section 5.03 of
the SWSA:
"The Servicer shall make any Monthly Advances required
hereunder from either (i) its own funds; or (ii) from the Custodial
Account, to the extent of funds held therein for future distribution;
or (iii) in the form of any combination of (i) and (ii). Any amounts
held for future distribution and used to make the Monthly Advance
distribution amount (in full or part) shall be appropriately
reflected in the Servicer's records and replaced by the Servicer by
deposit in the Custodial Account on or before any future Remittance
Date to the extent that the amount then on deposit in the Custodial
Account for the related Remittance Date would be insufficient to
remit all sums required under Section 5.01 of this Agreement."
15. Section 11.02 (Termination Without Cause) is hereby amended as follows:
"At the sole direction of the Directing Holder, the
Directing Holder may terminate any rights the Servicer may have
hereunder, without cause, by (i) providing thirty days written notice
delivered by registered mail to the Servicer, the Master Servicer and
the Trustee and (ii) paying the then agreed upon termination fee;
provided, however, that such termination fee shall be reasonable and
negotiated in good faith and provide for the following: (a) A service
release fee based upon the fair market value of such servicing
rights; (b) reimbursement of all outstanding advances as of the
servicing transfer date (including Monthly Advances, Servicing
Advances, and any nonrecoverable advances); (c) reimbursement of all
outstanding ancillary charges as of the servicing transfer date
(including late charges, NSF fees, assumption fees and other
administrative charges, but excluding prepayment premiums); and (d)
payment of the Servicing Fee accrued through the servicing transfer
date. Payment of such termination fee will be a precondition to the
service released transfer."
16. 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.
