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 OCWEN FEDERAL BANK FSB, a federal savings bank (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 herein 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 Serviced Mortgage Loans are currently being serviced by the
Servicer for Xxxxxx Capital pursuant to the Residential Flow Servicing
Agreement dated August 1, 1999 between the Servicer and Xxxxxx Capital (for
Performing and Non-Performing Residential Mortgage Loans and REO Properties
(the "Flow Servicing Agreement")) and the Residential Flow Servicing and Sale
of Servicing Rights Agreement dated August 1, 1999 between the Servicer,
AMRESCO Residential Mortgage Corporation and Finance America LLC (the "Finance
America Agreement") (which agreement was assigned to Xxxxxx Capital) (the Flow
Servicing Agreement and the Finance America Agreement collectively, "Original
Servicing Agreements") between Xxxxxx Capital and the Servicer and the parties
wish to consolidate the servicing of the Serviced Mortgage Loans under the
Flow Servicing Agreement as reconstituted by this Agreement.
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 agree that the provisions of the
Flow Servicing Agreement shall apply to the Serviced Mortgage Loans, but only
to the extent provided herein and that this Agreement shall constitute a
Reconstitution Agreement (as defined in the Flow Servicing 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 Flow Servicing Agreement
incorporated by reference herein, shall have the meanings (regardless if such
terms are defined in the Flow Servicing Agreement, except for the term
"Collection Account") 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 being serviced under the Finance America Agreement shall each be
serviced under the Flow Servicing Agreement 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 Flow
Servicing Agreement, except as otherwise provided herein and on Exhibit A
hereto, and that the provisions of the Flow Servicing Agreement, 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 Flow
Servicing Agreement to enforce the obligations of the Servicer under the Flow
Servicing Agreement and the term "Owner" as used in the Flow Servicing
Agreement in connection with any rights of the Owner shall refer to the Master
Servicer except as otherwise specified in Exhibit A hereto. The Master
Servicer, with the prior consent of Xxxxxxx Mac, shall be entitled to
terminate the rights and obligations of the Servicer under this Agreement upon
the failure of the Servicer to perform any of its obligations under this
Agreement, which failure results in a Servicer Event of Default, as provided
in Article IX of the Flow Servicing Agreement. Notwithstanding anything herein
to the contrary, in no event shall the Master Servicer assume any of the
obligations of Xxxxxx Capital hereunder; 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 is currently 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 issued pursuant thereto.
7. Notices. All notices and communications between or among the parties
hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
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 Flow Servicing Agreement.
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 - N.C. 1179
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
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
OCWEN FEDERAL BANK FSB
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
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 Flow Servicing Agreement
1. Unless otherwise specified herein, any provisions of the Flow Servicing
Agreement, including definitions, relating to (i) representations and
warranties of the Owner, (ii) Agency Transfers, Pass-Through Transfers,
whole loan transfers, reconstitution and securitization, (iii) the sale
and purchase of the Mortgage Loans and Setup Expenses, (iv) Transfer
Dates, (v) Non-Performing Loans, and (vi) Preliminary Servicing Period,
shall be disregarded. The exhibits to the Flow Servicing Agreement and all
references to such exhibits shall also be disregarded.
2. For reporting purposes, a Mortgage Loan is "delinquent" when any payment
contractually due thereon has not been made by the close of business on
the Due Date therefor. Such Mortgage Loan is "30 days Delinquent" if such
payment has not been received by the close of business on the
corresponding day of the month immediately succeeding the month in which
such payment was first due, or, if there is no such corresponding day
(e.g., as when a 30-day month follows a 31-day month in which a payment
was due on the 31st day of such month), then on the last day of such
immediately succeeding month. Similarly for "60 days Delinquent" and the
second immediately succeeding month and "90 days Delinquent" and the third
immediately succeeding month.
3. The definition of "Accepted Servicing Practices" is hereby deleted and
replaced by the following:
With respect to any Mortgage Loan, those mortgage servicing
practices of prudent mortgage lending institutions which service
mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
4. The definition of "Ancillary Income" in Article I is hereby amended by
adding the words "as additional compensation" to the end of the last
sentence.
5. A new definition of "Adverse REMIC Event" is hereby added to Article I to
read as follows:
"Adverse REMIC Event": As defined in Article X of the Trust
Agreement.
6. The definition of "Collection Account" in Article I is hereby amended by
deleting the words "in trust for Xxxxxx Capital, a Division of Xxxxxx
Brothers Holdings Inc. and its successors and assigns" and substituting
the following words: "in trust for Xxxxx Fargo Bank Minnesota, National
Association, as Master Servicer for the ARC 2000-BC3 Trust."
7. The definition of "Collection Period" in Article I is hereby amended in
its entirety to read as follows:
"Collection Period" means with respect to each Distribution Date,
the period commencing on the second day of the month immediately
preceding the month of the related Distribution Date and ending on
the first day of the month of such Distribution Date.
8. The definition of "Current Servicer" in Article I shall be deleted in its
entirety.
9. A new definition of "Custodial Agreement" is added to Article I
immediately following the definition of "Current Servicer" to read as
follows:
"Custodial Agreement" means the custodial agreement relating to the
custody of the Serviced Mortgage Loans among The Chase Manhattan
Bank (as successor in interest to Chase Bank of Texas, National
Association), as custodian, First Union National Bank, as trustee
and Structured Asset Securities Corporation, as depositor.
10. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
"Custodian" means Chase Bank of Texas, National Association, any
successor in interest or any successor custodian appointed pursuant
to the Custodial Agreement.
11. The definition of "Distribution Date" in Article I is hereby amended in
its entirety to read as follows:
"Distribution Date" means the 18th day (or if such 18th day is not a
Business Day, the first Business Day immediately following) of any
month.
12. The definition of "Eligible Account" in Article I is hereby amended in its
entirety to read as follows:
"Eligible Account" means a segregated account maintained by either
(i) a depository institution the accounts of which are insured by
the FDIC and the short-term debt obligations of which (or in the
case of a depository institution that is a subsidiary of a holding
company, the short-term unsecured debt obligations of such holding
company) 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 AA or its equivalent by
either of S&P or Xxxxx'x.
13. The definition of "Escrow Accounts" in Article I is hereby amended by
deleting the words "for Xxxxxx Capital, a Division of Xxxxxx Brothers
Holdings Inc. and its successors and assigns, and various mortgagors" and
replacing them with the following words: "for Xxxxx Fargo Bank Minnesota,
National Association, as Master Servicer for the ARC 2000-BC3 Trust".
14. The definition of "Fitch" in Article I is hereby amended to read as
follows:
"Fitch" means Fitch, Inc. and its successors and assigns.
15. A new definition of "Monthly Advance" is added to Article I immediately
following the definition of "Missing Document Report" to read as follows:
"Monthly Advance" means with respect to each Distribution Date and
each Loan, an amount equal to the Monthly Payment (with the interest
portion of such Monthly Payment adjusted to the Mortgage Loan
Remittance Rate) that was due on the Loan, and that was delinquent
at the close of business on the first day of the month in which such
Distribution Date occurs, but only to the extent that such amount is
expected, in the reasonable judgment of the Servicer, to be
recoverable from collections or other recoveries in respect of such
Loan. To the extent that the Servicer determines that any such
amount is not recoverable from collections or other recoveries in
respect of such Loan, such determination shall be evidenced by a
certificate of a Servicing Officer delivered to the Master Servicer
setting forth such determination and the procedures and
considerations of the Servicer forming the basis of such
determination, which shall include a copy of any broker's price
opinion and any other information or reports obtained by the
Servicer which may support such determination.
16. The definition of "Non-Recoverable Advance" in Article I is hereby amended
by replacing the reference to "Section 2.3(b)" with "Section 2.3(c)".
17. The definition of "Permitted Investments" in Article I is hereby amended
by deleting the word "timely" in clause (i) and adding the words "or
FHLMC" after the word "FNMA" in clause (k).
18. The definition of "Opinion of Counsel" is hereby amended and restated as
follows:
"Opinion of Counsel" A written opinion of counsel, who may be an
employee of the Servicer, that is reasonably acceptable to the
Trustee, the Guarantor and the Master Servicer provided that any
Opinion of Counsel relating to (a) qualification of the Mortgage
Loans in a REMIC or (b) compliance with the REMIC Provisions, must
be an opinion of counsel reasonably acceptable to the Trustee, the
Guarantor and Xxxxxx Capital, who (i) is in fact independent of any
Seller, the Servicer and any Master Servicer of the Mortgage Loans,
(ii) does not have any material direct or indirect financial
interest in the Servicer or any Master Servicer of the Mortgage
Loans or in an affiliate of any such entity and (iii) is not
connected with any Seller, the Servicer or any Master Servicer of
the Mortgage Loans as an officer, employee, director or person
performing similar functions.
19. The definition of "Prepayment Interest Shortfall Amount" in Article I is
hereby amended by inserting the words (i) "voluntary (not including
discounted payoffs)" between the words "a" and "principal" in the second
line thereof, (ii) "or in part" between the words "full" and "during" in
the second line thereof and (iii) "for Prepayments in full only" at the
end of the parenthetical.
20. A new definition of "Prime Rate" is added to Article I immediately
following the definition of "Prepayment Interest Shortfall Amount" to read
as follows:
"Prime Rate" means the prime rate published from time to time, as
published as the average rate in The Wall Street Journal Northeast
Edition.
21. The definition of "Property Protection Expenses" in Article I is hereby
amended by adding the word "reasonable" at the beginning of clauses (h)
and (i).
22. The definition of "REO Property" in Article I is hereby amended by
replacing the word "Owner" with "the Trustee on behalf of the Trust Fund".
23. New definitions of "Retained Interest", "Retained Interest Holder" and
"Retained Interest Rate" are hereby added to Article I after the
definition of "REO Property" to read as follows:
"Retained Interest": With respect to each Schedule I Mortgage Loan,
interest in respect of each such 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": With respect to each Schedule I Mortgage
Loan, initially, 0.15% 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.
24. The definition of "Servicing Advances" in Article I is hereby amended in
its entirety to read as follows:
"Servicing Advances" means all customary, reasonable and necessary
"out-of-pocket" costs and expenses (including reasonable attorneys'
fees and disbursements) incurred by the Servicer in the performance
by the Servicer of its servicing obligations hereunder, including,
but not limited to, (a) Property Protection Expenses, Escrow
Payments, and Property Improvement Expenses, and (b) any enforcement
or administrative or judicial proceedings, including foreclosures.
25. The definition of "Servicing Fee" in Article I is hereby amended in its
entirety to read as follows:
"Servicing Fee" means an amount equal to one-twelfth the product of
(a) a rate per annum equal to 0.35% (in the case of a Schedule I
Mortgage Loan) or 0.50% (in the case of a Schedule II Mortgage Loan)
and (b) the outstanding principal balance of the Loan. The Servicing
Fee is payable solely from the interest portion (including
recoveries with respect to interest from Liquidation Proceeds) of
such Monthly Payment collected by the Servicer or as otherwise
provided under this Agreement. In the event servicing is transferred
to a successor servicer, clause (a) of the Servicing Fee may not
exceed 0.50% per annum. For purposes of the definitions of
"Prepayment Interest Shortfall Amount" and "Mortgage Loan Remittance
Rate", calculation of amounts remitted to the Collection Account
pursuant to Section 2.3(b) and calculation of compensating interest
pursuant to Section 6.9, the rate per annum in clause (a) of the
definition of "Servicing Fee" shall be 0.50% in the case of all
Serviced Mortgage Loans.
26. The definition of "Servicing File" in Article I is hereby replaced with
the following:
"Servicing File" means with respect to each Loan, the file retained
by the Servicer.
27. A new definition of "Special Servicing Fee" is hereby added to Article I
after the definition of "Setup Fee" to read as follows:
"Special Servicing Fee" means with respect to each Schedule I
Mortgage Loan that becomes greater than 150 days delinquent, a fee
of $1,500, payable once upon such Mortgage Loan becoming 150 days
delinquent. The Special Servicing Fee shall be paid in installments
of $125 per month over a period of twelve months (or, if any
remaining balance of this fee remains unpaid at the time of
liquidation of the Mortgage Loan, such amount shall be paid on the
Distribution Date immediately after liquidation) as set forth in
Section 9.34(b) of the Trust Agreement.
28. The parties hereto acknowledge that Section 2.1 (Transfer of Servicing
Files to Servicer) of the Flow Servicing Agreement shall be inapplicable
to this Agreement.
29. The parties hereto acknowledge that the provisions of Section 2.2 (Release
of Loan Documents) are superceded by the provisions of the Custodial
Agreement.
30. Section 2.3(a) is hereby amended by replacing the word "Owner" in the
first, second and eighteenth lines thereof with the words "Trustee and the
Trust Fund" and by adding "if the accounts of the Servicer are FDIC
insured" after the first use of the word "Servicer" in the seventh line
thereof.
31. Section 2.3(b) is hereby amended by adding the words "and the Retained
Interest in the case of each Schedule I Mortgage Loan" after the words
"Servicing Fee" in the third line, by deleting the word "and" at the end
of clause (iv), deleting the period at the end of clause (v) and replacing
it with a semi-colon followed by the word "and", and by adding a new
clause (vi) to read as follows:
(vi) any Prepayment Interest Shortfall Amount.
In addition, the following paragraph shall be added to Section
2.3(b) to immediately follow new clause (vi):
On each Distribution 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)
32. Section 2.3(e) is hereby amended by replacing the reference to "Owner" in
the third line thereof with "Trustee or Trust Fund".
33. Section 2.3(f) is hereby amended by adding "in accordance with the Xxxxxxx
Mac Seller/Servicer Guide" to the end of the first sentence thereof, by
replacing the word "Owner" in the final sentence of the first paragraph
with "Trust Fund", and deleting "FNMA or" and "seller-" in the second
paragraph thereof.
34. Section 2.3(i) is hereby amended by adding "the Trustee, the Guarantor"
after the word "Obligor" in the second line thereof.
35. A new Section 2.3(l) (Credit Reporting) is hereby added to read as
follows:
Section 2.3(l) Credit Reporting.
For each Mortgage Loan, 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.
36. Section 2.5 (Servicing Compensation) is hereby amended by deleting the
first two sentences thereof and by replacing the final sentence with the
following:
In the event that the Servicer deposits into the Collection Account
any Ancillary Income, the Servicer may withdraw such amount pursuant
to Section 6.2(c). The Servicer shall also be entitled to the
Special Servicing Fee with respect to the Schedule I Mortgage Loans.
37. Section 3.1 (Default Management Responsibilities) is hereby amended by
replacing the references to "Owner" with "Trustee and Trust Fund" in each
instance, and by adding as the last sentence thereof the following:
"Notwithstanding anything to the contrary in this Agreement,
the Servicer shall not, (except in the case where a default by the
related Mortgagor has occurred or is, in the reasonable judgment of
the Servicer, imminent), knowingly permit any modification, waiver
or amendment of any material term of any Mortgage Loan (including
but not limited to the interest rate, the principal balance, the
amortization schedule, or any other term affecting the amount or
timing of payments on the Mortgage Loan or the collateral therefor)
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. The cost of such Opinion of Counsel shall be
reimbursable pursuant to Section 6.2(d)."
38. Section 3.2 (Foreclosure) is hereby amended by (i) replacing the first
sentence thereof with the following:
In the event that any payment due under any Mortgage Loan
remains delinquent for a period of 65 days or any other default
continues for a period of 65 days beyond the expiration of any grace
or cure period, the Servicer shall commence foreclosure proceedings
and provide notice thereof to the Master Servicer and the Trustee in
writing. The Servicer shall retain an attorney and supervise the
conduct of the foreclosure proceeding.
; (ii) by replacing the word "Owner" in the sixth line thereof with
"the Trust Fund"; (iii) replacing the word "Owner" in the tenth through
thirteenth lines thereof with "Master Servicer and Guarantor" and (iv)
replacing the words "five (5)" with "thirty (30)".
39. Section 3.3 (Deed in Lieu) is hereby amended by replacing the word "Owner"
in the fourth and seventh lines thereof with "Trustee and Trust Fund", by
replacing the word "Owner" in the tenth through the thirteenth lines
thereof with "Master Servicer and Guarantor" and by replacing the words
"five (5)" with "thirty (30)".
40. Section 3.4 (Priority; Insurance Claims) is hereby amended by replacing
the word "Owner" with "Trust Fund".
41. Section 3.5 (Bankruptcy of Obligor) is hereby amended by replacing the
word "Owner" with "Trust Fund".
42. Section 3.6 (Discounted Payoffs) is hereby amended by replacing the word
"three" with "five" and replacing the word "Owner" with "Master Servicer".
43. Section 4.1 (Property Management and Disposition Services) is hereby
amended by adding the following paragraphs after the first paragraph
thereto:
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.
44. Section 4.2 is hereby amended by replacing each reference to the word
"Owner" with "Master Servicer and Guarantor", changing the words "five
(5)" to "thirty (30)" and changing the reference to "Section 11.3" to
"Section 12.3".
45. Section 5.1(b) is hereby amended by adding the following sentence as the
last sentence of paragraph (b) thereof:
Any subservicer appointed by the Servicer must be a Xxxxxxx
Mac-approved servicer and must be approved by the Guarantor at the
time of such appointment.
46. Section 5.4 (Annual Audit) is hereby amended by changing the reference to
"April 30, 2000" in the second line thereof to "April 30, 2001" and by
changing the reference to "Owner" in the fourth line thereof to "the
Master Servicer and the Guarantor".
47. A new Section 5.5 is added to the Flow Servicing Agreement to read as
follows:
Section 5.5 Annual Officer's Certificate.
On or before April 30 of each year, beginning with April 30,
2001, the Servicer, at its own expense, will deliver to the Master
Servicer and the Guarantor a Servicing Officer's certificate
stating, as to each signer thereof, that (i) a review of the
activities of the Servicer during such preceding fiscal year and of
performance under this Agreement has been made under such officers'
supervision, and (ii) to the best of such officers' knowledge, based
on such review, the Servicer has fulfilled all its obligations under
this Agreement for such year, or, if there has been a default in the
fulfillment of all such obligations, specifying each such default
known to such officers and the nature and status thereof including
the steps being taken by the Servicer to remedy such default.
48. Section 6.2 (Remittances and Monthly Report) is hereby amended as follows:
(1) the first sentence shall be deleted in its entirety;
(2) replacing the words "in the following priority" in the second
sentence of the first paragraph with "as follows";
(3) paragraph (b) shall be deleted in its entirety and replaced
with the following new paragraph (b):
(b) to make payments to the Retained Interest Holder with
respect to the Schedule I Mortgage Loans and the Master
Servicer in the amounts and in the manner provided by
Section 6.6.
(4) by replacing the words "then Servicer may seek reimbursement
from Owner (as set forth in Section 6.4 below), it being
understood that, in the case of such reimbursement from the
Collection Account, Servicer's right thereto shall be prior to
the rights of Owner" in paragraph (d) with "then the Servicer
may reimburse itself from amounts on deposit in the Collection
Account, it being understood that the Servicer's right to such
amounts from the Collection Account shall be prior to the
rights of the Trust Fund."
(5) new paragraphs (e) and (f) shall be added to read as follows:
(e) to reimburse the Servicer for Monthly Advances of the
Servicer's funds made pursuant to Section 6.8. The
Servicer's right to reimburse itself pursuant to this
subclause (e) with respect to any Mortgage Loan shall be
limited to amounts received on the related Mortgage Loan
which represent late payments of principal and/or interest
respecting which any such advance was made, it being
understood that, in the case of any such reimbursement,
the Servicer's right to such reimbursement shall be prior
to the rights of the Trust Fund; provided, however, that
in the event that the Servicer determines in good faith
that any unreimbursed Monthly Advances will not be
recoverable from amounts representing late recoveries of
payments of principal or interest respecting the
particular Mortgage Loan as to which such Monthly Advance
was made or from Liquidation Proceeds or Insurance
Proceeds with respect to such Mortgage Loan, the Servicer
may reimburse itself for such amounts from the Collection
Account, it being understood, in the case of any such
reimbursement, that the Servicer's right thereto shall be
prior to the rights of the Trust Fund;
(f) to reimburse the Servicer for any amounts owed pursuant to
Section 8.3(a).
(6) and by deleting the last paragraph.
49. Section 6.3 (Remittance Upon Termination) is hereby amended by restating
paragraph (b) and paragraph (c) of such Section as follows:
(b) to make payments to the Retained Interest Holder in the
case of Schedule I Mortgage Loans and the Master Servicer in
the amounts and in the manner provided by Section 6.6; and
(c) to reimburse itself for all unpaid Servicing Fees, Monthly
Advances and Servicing Advances, it being understood that
the Servicer's rights to such reimbursement shall be prior
to the rights of the Trust Fund.
50. The parties hereto acknowledge that Section 6.4 (Billing) shall be
inapplicable to this Reconstitution Agreement.
51. The parties hereto acknowledge that Section 6.5 (Missing Document Report)
shall be superseded by the provisions of the Custodial Agreement.
52. New Sections 6.6, 6.7, 6.8 and 6.9 are hereby added to the Flow Servicing
Agreement to read as follows:
Section 6.6. Remittances.
On each Distribution Date the Servicer shall (i) pay any
outstanding MGIC Insurance Premiums, (ii) remit to the Retained
Interest Holder the Retained Interest with respect to the Schedule I
Mortgage Loans for such Due Period and (iii) remit on a
scheduled/scheduled basis by wire transfer of immediately available
funds to the Master Servicer (a) all amounts deposited in the
Collection Account as of the close of business on the last day of
the related Collection Period (net of charges against or withdrawals
from the Collection Account pursuant to Section 6.2), plus (b) all
Monthly Advances, if any, which the Servicer is obligated to make
pursuant to Section 6.8, minus (c) any amounts attributable to
Principal Prepayments, Liquidation Proceeds, insurance proceeds,
condemnation proceeds or REO Property disposition proceeds received
after the applicable Collection Period, which amounts shall be
remitted on the following Distribution Date, plus (d) any additional
interest required to be deposited in the Collection Account in
connection with a Prepayment Interest Shortfall Amount in accordance
with Section 2.3(b)(vi), and minus (e) any amounts attributable to
Monthly Payments collected but due on a due date or dates subsequent
to the first day of the month in which such Distribution Date
occurs, which amounts shall be remitted on the Distribution Date or
Dates next succeeding the Collection Period for such amounts.
With respect to any remittance received by the Master Servicer
after the Business Day on which such payment was due, the Servicer
shall pay to the Master Servicer interest on any such late payment
at an annual rate equal to the Prime Rate, adjusted as of the date
of each change, plus three percentage points, but in no event
greater than the maximum amount permitted by applicable law. Such
interest shall be deposited in the Collection Account by the
Servicer on the date such late payment is made and shall cover the
period commencing with the day following such Business Day and
ending with the Business Day on which such payment is made, both
inclusive. Such interest shall be remitted along with the
distribution payable on the next succeeding Distribution Date. The
payment by the Servicer of any such interest shall not be deemed an
extension of time for payment or a waiver of any Event of Default by
the Servicer.
All remittances required to be made to the Master Servicer
shall be made to the following wire account:
Xxxxx Fargo Bank Minnesota, National Association
Minneapolis, Minnesota
ABA #: 000-000-000
Acct #: 0000000000
Account Name: Corporate Trust Clearing
For further credit to: Collection Account No. 00000000 (ARC 2000-BC3)
Section 6.7 Statements to Master Servicer.
Not later than the tenth calendar day (or if such tenth
calendar day is not a Business Day, the immediately preceding
Business Day) of each month, the Servicer shall furnish to the
Master Servicer (a) a monthly remittance advice containing such
information in the form attached hereto as Exhibit A-1 or other
format mutually acceptable to the Servicer, Master Servicer and the
Guarantor as to the accompanying remittance and the period ending on
the preceding Determination Date and (b) all such information
required pursuant to clause (a) above on a magnetic tape or other
similar media reasonably acceptable to the Master Servicer. The
Master Servicer will convert such data into a format acceptable to
the Guarantor and provide monthly reports to the Guarantor pursuant
to the Trust Agreement.
Such monthly remittance advice shall also include on a
cumulative basis the amount of any (i) claims filed, (ii) claim
payments made, (iii) claims denied and (iv) policies cancelled with
respect to those Serviced Mortgage Loans covered by loan-level
primary mortgage insurance policies provided by MGIC or any other
provider of primary mortgage insurance purchased by the Trust.
The Servicer shall provide the Master Servicer with such
information available to it concerning the Mortgage Loans as is
necessary for the Master Servicer to prepare the Trust Fund's
federal income tax return as the Master Servicer may reasonably
request from time to time.
Section 6.8 Monthly Advances by Servicer.
On the Business Day immediately preceding each Distribution
Date, the Servicer shall deposit in the Collection 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 Collection 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 Collection Account on or
before any future Distribution Date if funds in the Collection
Account on such Distribution Date shall be less than remittances to
the Master Servicer required to be made on such Distribution Date.
The Servicer shall keep appropriate records of such amounts and will
provide such records to the Guarantor and the Master Servicer 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.
Section 6.9 Compensating Interest.
The Servicer shall deposit in the Collection 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.
53. Section 7.1(e) (Litigation) is hereby amended by adding "in any one
instance or in the aggregate," after "if adversely determined,".
54. Section 7.1(g) (FNMA or FHLMC Approved) is hereby amended by deleting
"FNMA or" in each instance and by deleting "seller/" in the first sentence
thereto.
55. A new paragraph is hereby added at the end of Section 7.1 (Representations
and Warranties) to read as follows:
It is understood and agreed that the representations and
warranties set forth in Section 7.1 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 7.1 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, 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 10.4.
In addition, the Servicer shall indemnify (from its own funds)
the Trustee, the Trust Fund, the Guarantor and the 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 7.1 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 7.1 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, the Guarantor or the Master Servicer for compliance
with this Agreement.
56. Section 8.2 (Servicer's Indemnity of Owner) is hereby amended by changing
the word "Owner" in the second, fifth and ninth lines thereof to "Master
Servicer, Guarantor, Trustee and the Trust Fund".
57. Section 8.3 (Owner's Indemnity of Servicer; Limitation on Liability of
Servicer) is hereby amended by (i) replacing Section 8.3(a) with the
following:
The Servicer and any director or officer or employee or agent of the
Servicer shall be indemnified by the Trust Fund and held harmless against
any loss, liability or expense incurred in connection with any legal
action relating to this Agreement or the Certificates, other than any
loss, liability or expense incurred by reason of its willful misfeasance,
bad faith or negligence in the performance of duties hereunder or by
reason of its reckless disregard of obligations and duties hereunder.
, (ii) deleting the fifth and sixth sentences of Section 8.3(d), and
(iii) changing the word "Owner" in Section 8.3(b) to "Master
Servicer, Guarantor, Trustee or Trust Fund".
58. Section 9.1 (Events of Default) is hereby amended by changing the words
"three (3) Business Days" in Section 9.1(a) to "one (1) Business Day", by
changing "thirty (30) days" to "fifteen (15) days" in Section 9.1(b) and
by replacing Section 9.1(h) with the following: "Servicer is not an
approved servicer for FHLMC".
59. The parties hereto acknowledge that the remedies set forth in Section
10.1(b) may be exercised by either the Master Servicer or Trustee on
behalf of the Trust Fund.
60. A new paragraph is hereby added as the final paragraph of Section 10.1(b)
to read as follows:
By a written notice, the Trustee and the Master Servicer, with
the Guarantor's consent, may waive any default by the Servicer in
the performance of its obligations hereunder and its consequences.
Upon any waiver of a past default, such default shall cease to
exist, and any Event of Default under Section 9.1 arising therefrom
shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon except to the extent
expressly so waived.
61. Section 10.1(c) is hereby amended in its entirety to read as follows:
(c) With the prior 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. The Servicer shall
comply with the termination procedures set forth in Section 10.4
hereof. The Master Servicer or the Trustee shall have no right to
terminate the Servicer pursuant to this Section 10.1(c). In the
event of a termination pursuant to this Section 10.1(c), the
Directing Holder shall (i) appoint a successor servicer pursuant to
Section 10.4 and (ii) pay to the Servicer a sum, as liquidated
damages, from its own funds without reimbursement, equal to the
product of (a) two, (b) the annual servicing fee rate, and (c) the
aggregate unpaid principal balance of the Loans for which this
Agreement is going to be terminated as of the last day of the month
following receipt of such notice of termination. In connection with
any such termination by the Directing Holder pursuant to this
Section 10.1(c), the Directing Holder will be responsible for
reimbursing the Servicer for all unreimbursed Servicing Advances,
Servicing Fees and Monthly Advances within fifteen days following
the date of such termination without any right of reimbursement from
the Trust Fund.
62. Section 10.1(d) is hereby deleted in its entirety.
63. Section 10.2 is hereby amended by changing the word "Owner" to "Master
Servicer, the Guarantor and the Depositor".
64. Section 10.3 (Servicer Not to Resign) is hereby amended by changing the
word "Owner" to the "Master Servicer, the Guarantor and the Trustee",
except in the last sentence thereof where the word "Owner" shall be
replaced by the word "Master Servicer".
65. The following new paragraphs are hereby added to Section 10.4 immediately
preceding the existing paragraph of Section 10.4, to read as follows:
Upon the termination of the Servicer's responsibilities and
duties under this Agreement (a) pursuant to Sections 10.1(b), 10.3
or 12.12, the Master Servicer, with the consent of the Guarantor,
shall, in accordance with the provisions of the Trust Agreement, (i)
succeed to and assume all of the Servicer's responsibilities,
rights, duties and obligations under this Agreement, or (ii) appoint
a successor meeting the eligibility requirements of this Agreement
and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer under this
Agreement simultaneously with the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement; or
(b) pursuant to Section 10.1(c), 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 simultaneously with the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement. Any
successor to the Servicer shall be subject to the approval of the
Master Servicer, the Guarantor, the Depositor and each Rating Agency
(as such term is defined in the Trust Agreement). Each Rating Agency
must deliver to the Trustee a letter to the effect that such
transfer of servicing will not result in a qualification, withdrawal
or downgrade of the then-current rating of any of the Certificates.
In addition, with respect to any FHA Loans serviced hereunder, the
Servicer shall provide notice of such change in servicers to HUD on
HUD Form 92080 or such other form as prescribed by HUD, at least 10
days after such transfer of servicing. In connection with such
appointment and assumption, the Master Servicer or the Depositor, as
applicable, may make such arrangements for the compensation of such
successor out of payments on Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in
excess of that permitted the Servicer under this Agreement. In the
event that the Servicer's duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the
aforementioned sections, the Servicer shall discharge such duties
and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with
the same degree of diligence and prudence which it is obligated to
exercise under this Agreement, and shall take no action whatsoever
that might impair or prejudice the rights or financial condition of
its successor. The resignation or removal of the Servicer pursuant
to the aforementioned sections shall not become effective until a
successor shall be appointed pursuant to this Section 10.4 and shall
in no event relieve the Servicer of the representations and
warranties made pursuant to Sections 7.1 and the remedies available
to the Trustee under Section 7.1, it being understood and agreed
that the provisions of such Section 7.1 shall be applicable to the
Servicer notwithstanding any such resignation or termination of the
Servicer, or the termination of this Agreement.
Within a reasonable period of time, but in no event longer than
30 days of the appointment of a successor entity, the Servicer shall
prepare, execute and deliver to the successor entity any and all
documents and other instruments, place in such successor's
possession all Servicing Files, and do or cause to be done all other
acts or things necessary or appropriate to effect the purposes of
such notice of termination. The Servicer shall cooperate with the
Trustee and the Master Servicer, as applicable, and such successor
in effecting the termination of the Servicer's responsibilities and
rights hereunder and the transfer of servicing responsibilities to
the successor Servicer, including without limitation, the transfer
to such successor for administration by it of all cash amounts which
shall at the time be credited by the Servicer to the Collection
Account or any Escrow Account or thereafter received with respect to
the Loans. In the event the Servicer is terminated pursuant to
Section 10.1(c), 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.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Servicer and the Master
Servicer an instrument (i) accepting such appointment, wherein the
successor shall make the representations and warranties set forth in
Section 7.1 and (ii) an assumption of the due and punctual
performance and observance of each covenant and condition to be
performed and observed by the Servicer under this Agreement,
whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named
as a party to this Agreement. Any termination or resignation of the
Servicer or termination of this Agreement pursuant to Sections 10.1
or 10.3 shall not affect any claims that the Master Servicer or the
Trustee may have against the Servicer arising out of the Servicer's
actions or failure to act prior to any such termination or
resignation.
The Servicer shall deliver within three (3) Business Days to
the successor Servicer the funds in the Collection Account and
Escrow Account and all Loan Documents and related documents and
statements held by it hereunder and the Servicer shall account for
all funds and shall execute and deliver such instruments and do such
other things as may reasonably be required to more fully and
definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer.
Upon a successor's acceptance of appointment as such, the
Servicer shall notify the Trustee and Master Servicer of such
appointment in accordance with the notice procedures set forth
herein.
Except as otherwise provided in this Agreement, all reasonable
costs and expenses incurred in connection with any transfer of
servicing hereunder (whether as a result of termination or removal
of the Servicer or resignation of the Servicer or otherwise),
including, without limitation, the costs and expenses of the Master
Servicer or any other Person in appointing a successor servicer, or
of the Master Servicer in assuming the responsibilities of the
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.
66. Section 12.2 (Choice of Law) shall be deleted in its entirety.
67. The provisions of Article XI (Reconstitution) are superceded by this
Agreement.
68. Section 12.4 (Entire Agreement; Amendments; Waivers) is hereby amended by
replacing "the party against whom such amendment is sought to be enforced"
with "the Servicer and Xxxxxx Capital, with the written consent of the
Master Servicer, the Trustee and the Guarantor", and by deleting the third
sentence thereof and replacing it with "The Master Servicer, with the
Guarantor's consent, may, by written notice to the Servicer, extend the
time for or waive the performance of any of the obligations of the
Servicer hereunder."
69. Section 12.5 (No Joint Venture; Limited Agency) is hereby amended by
replacing the word "Owner" with "Trustee, Trust Fund, Master Servicer or
Xxxxxx Capital" in each instance.
70. New Sections 12.10 (Intended Third Party Beneficiaries), 12.11 (Guarantor
Audit and Inspection Rights; Access to Financial Statements), 12.12
(Guarantor Right of Termination or Event of Default), 12.13 (Fees for
Failure to Provide Timely Reports), 12.14 (Confidentiality) and 12.15
(Deficiency Judgments) (are added to the Flow Servicing Agreement to read
as follows:
Section 12.10 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 12.11 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 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 determinates 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 12.12 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 10.4.
Section 12.13 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; provided, however,
that no more than one such fee shall be payable in any month. 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. For the fourth failure and any such failure thereafter, $1,500.
Neither the Servicer nor the Master 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 12.14 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 12.15. 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 000-000 000 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
XXXXX FARGO BANK MINNESOTA, N.A.
Form 332
------------------------------------------------------------------------------
Calculation of Realized Loss
Purpose
To provide the Servicer with a form for the calculation of any Realized Loss
(or gain) as a result of a Mortgage Loan having been foreclosed and
Liquidated.
Distribution
The Servicer will prepare the form in duplicate and send the original together
with evidence of conveyance of title and appropriate supporting documentation
to the Master Servicer with the Monthly Accounting Reports which supports the
Mortgage Loan's removal from the Mortgage Loan Activity Report. The Servicer
will retain the duplicate for its own records.
Due Date
The form will be submitted to the Master Servicer no later than the tenth
calendar day of the month after the Mortgage Loan has been liquidated.
Preparation Instructions
The numbers on the form correspond with the numbers listed below.
1. The actual Unpaid Principal Balance of the Mortgage Loan.
2. The Total Interest Due less the aggregate amount of servicing fee
that would have been earned if all delinquent payments had been made
as agreed.
3-7. Complete as necessary. All line entries must be supported by copies of
appropriate statements, vouchers, receipts, canceled checks, etc., to
document the expense. Entries not properly documented will not be
reimbursed to the Servicer.
8. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis.
10. The total of lines 1 through 9.
Credits
11-17. Complete as necessary. All line entries must be supported by copies
of the appropriate claims forms, statements, payment checks, etc. to
document the credit. If the Mortgage Loan is subject to a Bankruptcy
Deficiency, the difference between the Unpaid Principal Balance of
the Note prior to the Bankruptcy Deficiency and the Unpaid Principal
Balance as reduced by the Bankruptcy Deficiency should be input on
line 16.
18. The total of lines 11 through 17.
Total Realized Loss (or Amount of Any Gain)
19. The total derived from subtracting line 18 from 10. If the amount
represents a realized gain, show the amount in parenthesis ( ).
XXXXX FARGO BANK MINNESOTA, N.A.
CALCULATION OF REALIZED LOSS
---------------------------------------------------------------------------------------------------------------------------
XXXXX FARGO BANK MINNESOTA, N.A. Trust: ___________________________
Prepared by: __________________ Date: _______________
Phone: ______________________
---------------------------- -------------------------- -----------------------------
| Servicer Loan No. | | Servicer Name | | Servicer Address |
| | | | | |
| | | | | |
---------------------------- -------------------------- -----------------------------
XXXXX FARGO BANK MINNESOTA, N.A.
Loan No._____________________________
Borrower's Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation and Acquisition Expenses:
Actual Unpaid Principal Balance of Mortgage Loan $ _______________(1)
Interest accrued at Net Rate ________________(2)
Attorney's Fees ________________(3)
Taxes ________________(4)
Property Maintenance ________________(5)
MI/Hazard Insurance Premiums ________________(6)
Hazard Loss Expenses ________________(7)
Accrued Servicing Fees ________________(8)
Other (itemize) ________________(9)
_________________________________________ ___________________
_________________________________________ ___________________
_________________________________________ ___________________
_________________________________________ ___________________
Total Expenses $ ______________(10)
Credits:
Escrow Balance $ ______________(11)
HIP Refund ________________(12)
Rental Receipts ________________(13)
Hazard Loss Proceeds ________________(14)
Primary Mortgage Insurance Proceeds ________________(15)
Proceeds from Sale of Acquired Property ________________(16)
Other (itemize) ________________(17)
_________________________________________ ____________________
_________________________________________ ____________________
Total Credits $________________(18)
Total Realized Loss (or Amount of Gain) $________________(19)
Schedule I
Schedule I of Serviced Mortgage Loans
(Ameriquest 1991-A through 1991-H Mortgage Loans Serviced by Ocwen)
Schedule II
Schedule II of Serviced Mortgage Loans
(MCA Financial Corp., Fieldstone Mortgage and Finance
America Mortgage Loans serviced by Ocwen)