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NEW CENTURY MORTGAGE CORPORATION,
as Master Servicer,
NEW CENTURY HOME EQUITY LOAN TRUST 2004-3,
as Issuer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Indenture Trustee,
_____________________________
SERVICING AGREEMENT
Dated as of September 29, 2004
_____________________________
Mortgage Loans
New Century Home Equity Loan Trust 2004-3
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................................................5
Section 1.02. Other Definitional Provisions...............................................................5
Section 1.03. Interest Calculations.......................................................................5
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. Representations and Warranties Regarding the Master Servicer................................6
Section 2.02. Existence...................................................................................8
Section 2.03. Enforcement of Representations and Warranties...............................................8
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Act as Master Servicer..................................................11
Section 3.02. Sub-Servicing Agreements Between Master Servicer and Sub-Servicers.........................13
Section 3.03. Successor Sub-Servicers....................................................................14
Section 3.04. Liability of the Master Servicer...........................................................14
Section 3.05. No Contractual Relationship Between Sub-Servicers, the Indenture
Trustee or the Noteholders.................................................................15
Section 3.06. Assumption or Termination of Sub-Servicing Agreements by the
Indenture Trustee..........................................................................15
Section 3.07. Collection of Certain Mortgage Loan Payments...............................................15
Section 3.08. Sub-Servicing Accounts.....................................................................16
Section 3.09. Collection of Taxes, Assessments and Similar Items; Servicing Accounts.....................16
Section 3.10. Collection Account and Payment Account.....................................................17
Section 3.11. Withdrawals from the Collection Account and Payment Account................................19
Section 3.12. Investment of Funds in the Collection Account and the Payment Account......................21
Section 3.13. [Reserved].................................................................................22
Section 3.14. Maintenance of Hazard Insurance and Errors and Omissions
and Fidelity Coverage......................................................................22
Section 3.15. Enforcement of Due-On-Sale Clauses; Assumption Agreements..................................24
Section 3.16. Realization Upon Defaulted Mortgage Loans..................................................25
Section 3.17. Trustee to Cooperate; Release of Mortgage Files............................................27
Section 3.18. Servicing Compensation.....................................................................28
Section 3.19. Reports to the Indenture Trustee and Others; Collection Account
Statements.................................................................................29
Section 3.20. Statement as to Compliance.................................................................29
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Section 3.21. Independent Public Accountants' Servicing Report...........................................29
Section 3.22. Access to Certain Documentation............................................................30
Section 3.23. Title, Management and Disposition of REO Property..........................................30
Section 3.24. Obligations of the Master Servicer in Respect of Prepayment
Interest Shortfalls........................................................................32
Section 3.25. Obligations of the Master Servicer in Respect of Mortgage Rates and
Monthly Payments...........................................................................33
Section 3.26. Advance Facility...........................................................................33
ARTICLE IV
SERVICING CERTIFICATE
Section 4.01. Remittance Reports and P&I Advances........................................................35
Section 4.02. Exchange Act Reporting.....................................................................36
ARTICLE V
THE MASTER SERVICER
Section 5.01. Liability of the Master Servicer...........................................................39
Section 5.02. Merger or Consolidation of or Assumption of the Obligations of
the Master Servicer........................................................................39
Section 5.03. Limitation on Liability of the Master Servicer and Others..................................39
Section 5.04. Master Servicer Not to Resign..............................................................40
Section 5.05. Delegation of Duties.......................................................................40
Section 5.06. Rights of the Issuer in Respect of the Master Servicer.....................................40
Section 5.07. Indemnification............................................................................41
ARTICLE VI
DEFAULT
Section 6.01. Master Servicer Events of Default..........................................................43
Section 6.02. Indenture Trustee to Act; Appointment of Successor.........................................45
Section 6.03. Notification to Noteholders................................................................46
Section 6.04. Waiver of Master Servicer Events of Default................................................46
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment..................................................................................47
Section 7.02. GOVERNING LAW..............................................................................47
Section 7.03. Notices....................................................................................47
Section 7.04. Severability of Provisions.................................................................48
Section 7.05. Third-Party Beneficiaries..................................................................48
Section 7.06. Counterparts...............................................................................48
Section 7.07. Effect of Headings and Table of Contents...................................................49
Section 7.08. Termination................................................................................49
Section 7.09. No Petition................................................................................49
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Section 7.10. No Recourse................................................................................49
Section 7.11. Indenture Trustee Rights...................................................................49
ARTICLE VIII
DUTIES OF THE MASTER SERVICER AS ADMINISTRATOR
Section 8.01. Administrative Duties......................................................................50
Section 8.02. Records....................................................................................51
Section 8.03. Additional Information to be Furnished.....................................................51
Section 8.04. No Recourse to Owner Trustee...............................................................52
EXHIBITS
Exhibit A Mortgage Loan Schedule
Exhibit B Form of Request for Release
Exhibit C-1 Form of Certification to Be Provided by the Depositor with Form 10-K
Exhibit C-2 Form of Certification to Be Provided to the Depositor by the Indenture Trustee
Exhibit D Form of Officer's Certificate Regarding Annual Statement of Compliance
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This Servicing Agreement, dated as of September 29, 2004,
among New Century Mortgage Corporation, as Master Servicer (the "Master
Servicer" ), New Century Home Equity Loan Trust 2004-3, as Issuer (the "Issuer")
and Deutsche Bank National Trust Company, as Indenture Trustee (the "Indenture
Trustee").
W I T N E S S E T H T H A T :
-----------------------------
WHEREAS, pursuant to the terms of the Mortgage Loan Sale and
Contribution Agreement, New Century Mortgage Securities, Inc. (the "Depositor")
will acquire the Mortgage Loans;
WHEREAS, the Depositor will create New Century Home Equity
Loan Trust 2004-3, a Delaware statutory trust, and will transfer the Mortgage
Loans and all of its rights under the Mortgage Loan Sale and Contribution
Agreement to the Issuer;
WHEREAS, pursuant to the terms of an Amended and Restated
Trust Agreement dated as of September 29, 2004 (the "Trust Agreement") among the
Depositor, as depositor, Wilmington Trust Company, as owner trustee (the "Owner
Trustee") and Deutsche Bank National Trust Company, as certificate registrar and
certificate paying agent, the Depositor will convey the Mortgage Loans to the
Issuer in exchange for the Certificates (as defined below);
WHEREAS, pursuant to the terms of the Trust Agreement, the
Issuer will issue and transfer to or at the direction of the Depositor, the
Trust Certificates, Series 2004-3 (the "Certificates");
WHEREAS, pursuant to the terms of an Indenture dated as of
September 29, 2004 (the "Indenture") between the Issuer and Deutsche Bank
National Trust Company (the "Indenture Trustee"), the Issuer will pledge the
Mortgage Loans and issue and transfer to or at the direction of the Purchaser
the Asset-Backed Notes, Series 2004-3, Class A-1, Class X-0, Xxxxx X-0, Class
A-4, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8 and Class M-9 Notes (collectively, the
"Notes"); and
WHEREAS, pursuant to the terms of this Servicing Agreement,
the Master Servicer will service the Mortgage Loans set forth on the Mortgage
Loan Schedule attached hereto as Exhibit A directly or through one or more
Sub-Servicers;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE I
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DEFINITIONS
Section 1.01. DEFINITIONS. For all purposes of this Servicing
Agreement, except as otherwise expressly provided herein or unless the context
otherwise requires, capitalized terms not otherwise defined herein shall have
the meanings assigned to such terms in the Definitions contained in Appendix A
to the Indenture which is incorporated by reference herein. All other
capitalized terms used herein shall have the meanings specified herein.
Section 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Servicing Agreement shall have
the defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Servicing Agreement and in any certificate
or other document made or delivered pursuant hereto or thereto, accounting terms
not defined in this Servicing Agreement or in any such certificate or other
document, and accounting terms partly defined in this Servicing Agreement or in
any such certificate or other document, to the extent not defined, shall have
the respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Servicing Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Servicing Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Servicing Agreement shall refer to this
Servicing Agreement as a whole and not to any particular provision of this
Servicing Agreement; Section and Exhibit references contained in this Servicing
Agreement are references to Sections and Exhibits in or to this Servicing
Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation".
(d) The definitions contained in this Servicing Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
Section 1.03. INTEREST CALCULATIONS. All calculations of
interest hereunder that are made in respect of the Stated Principal Balance of a
Mortgage Loan shall be made on the basis of a 360-day year consisting of twelve
30-day months, notwithstanding the terms of the related Mortgage Note and
Mortgage.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. REPRESENTATIONS AND WARRANTIES REGARDING THE
MASTER SERVICER. The Master Servicer hereby represents, warrants and covenants
to the Issuer and for the benefit of the Indenture Trustee, as pledgee of the
Mortgage Loans, and the Noteholders that as of the Closing Date or as of such
date specifically provided herein:
(i) The Master Servicer is a corporation duly organized and
validly existing under the laws of the State of California and is duly
authorized and qualified to transact any and all business contemplated
by this Servicing Agreement to be conducted by the Master Servicer in
any state in which a Mortgaged Property is located or is otherwise not
required under applicable law to effect such qualification and, in any
event, is in compliance with the doing business laws of any such State,
to the extent necessary to ensure its ability to enforce each Mortgage
Loan and to service the Mortgage Loans in accordance with the terms of
this Servicing Agreement;
(ii) The Master Servicer has the full power and authority to
conduct its business as presently conducted by it and to execute,
deliver and perform, and to enter into and consummate, all transactions
contemplated by this Servicing Agreement. The Master Servicer has duly
authorized the execution, delivery and performance of this Servicing
Agreement, has duly executed and delivered this Servicing Agreement,
and this Servicing Agreement, assuming due authorization, execution and
delivery by the Depositor and the Indenture Trustee, constitutes a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity;
(iii) The execution and delivery of this Servicing Agreement
by the Master Servicer, the servicing of the Mortgage Loans by the
Master Servicer hereunder, the consummation by the Master Servicer of
any other of the transactions herein contemplated, and the fulfillment
of or compliance with the terms hereof are in the ordinary course of
business of the Master Servicer and will not (A) result in a breach of
any term or provision of the charter or by-laws of the Master Servicer
or (B) conflict with, result in a breach, violation or acceleration of,
or result in a default under, the terms of any other material agreement
or instrument to which the Master Servicer is a party or by which it
may be bound, or any statute, order or regulation applicable to the
Master Servicer of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Master Servicer; and the
Master Servicer is not a party to, bound by, or in breach or violation
of any indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects or, to the Master
Servicer's knowledge, would in the future materially and adversely
affect, (x) the ability of the Master Servicer to perform its
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obligations under this Servicing Agreement or (y) the business,
operations, financial condition, properties or assets of the Master
Servicer taken as a whole;
(iv) The Master Servicer is a HUD approved servicer. No event
has occurred, including but not limited to a change in insurance
coverage, that would make the Master Servicer unable to comply with HUD
eligibility requirements or that would require notification to HUD;
(v) The Master Servicer does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every
covenant made by it and contained in this Servicing Agreement;
(vi) [Reserved];
(vii) No litigation is pending against the Master Servicer
that would materially and adversely affect the execution, delivery or
enforceability of this Servicing Agreement or the ability of the Master
Servicer to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(viii) There are no actions or proceedings against, or
investigations known to it of, the Master Servicer before any court,
administrative or other tribunal (A) that might prohibit its entering
into this Servicing Agreement, (B) seeking to prevent the consummation
of the transactions contemplated by this Servicing Agreement or (C)
that might prohibit or materially and adversely affect the performance
by the Master Servicer of its obligations under, or validity or
enforceability of, this Servicing Agreement;
(ix) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Master Servicer of, or compliance by the Master
Servicer with, this Servicing Agreement or the consummation by it of
the transactions contemplated by this Servicing Agreement, except for
such consents, approvals, authorizations or orders, if any, that have
been obtained prior to the Closing Date;
(x) The Master Servicer will not waive any Prepayment Charge
unless it is waived in accordance with the standard set forth in
Section 3.01; and
(xi) The Master Servicer has fully furnished and will continue
to fully furnish, in accordance with the Fair Credit Reporting Act and
its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian and Trans Union Credit Information Company or their successors
on a monthly basis.
The foregoing representations and warranties shall survive any
termination of the Master Servicer hereunder.
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 2.01 shall survive delivery
of the Mortgage Files to the Indenture Trustee and shall inure to the benefit of
the Indenture Trustee, the Depositor and the Noteholders. Upon
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discovery by any of the Depositor, the Master Servicer or the Indenture Trustee
of a breach of any of the foregoing representations, warranties and covenants
which materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Noteholders, the party discovering such breach shall
give prompt written notice (but in no event later than two Business Days
following such discovery) to the Indenture Trustee. Subject to Section 6.01,
unless such breach shall not be susceptible of cure within 90 days, the
obligation of the Master Servicer set forth in this Section 2.01 to cure
breaches shall constitute the sole remedy against the Master Servicer available
to the Noteholders, the Depositor and the Indenture Trustee on behalf of the
Noteholders respecting a breach of the representations, warranties and covenants
contained in this Section 2.01. Notwithstanding the foregoing, within 90 days of
the earlier of discovery by the Master Servicer or receipt of notice by the
Master Servicer of the breach of the representation or covenant of the Master
Servicer set forth in Section 2.01(x) above, which breach materially and
adversely affects the interests of the Holders of the Certificates in any
Prepayment Charge, the Master Servicer must pay the amount of such waived
Prepayment Charge, for the benefit of the holders of the Notes, by depositing
such amount into the Collection Account.
Section 2.02. EXISTENCE. The Issuer will keep in full effect
its existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other state or of the United States of
America, in which case the Issuer will keep in full effect its existence, rights
and franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Servicing Agreement.
Section 2.03. ENFORCEMENT OF REPRESENTATIONS AND WARRANTIES.
(a) The Master Servicer (to the extent it is not NC Capital or an Affiliate of
NC Capital, and otherwise the Indenture Trustee) shall enforce the
representations and warranties and related obligations for breaches thereof of
NC Capital pursuant to the Mortgage Loan Sale and Contribution Agreement. Upon
the discovery or receipt of notice of any materially defective document in, or
that a document is missing from, a Mortgage File or of a breach by NC Capital of
any of the representations and warranties made in the Mortgage Loan Sale and
Contribution Agreement in respect of any Mortgage Loan that materially and
adversely affects the value of the value of such Mortgage Loan or the interests
therein of the Noteholders, the Indenture Trustee shall give prompt written
notice to NC Capital and the Master Servicer of such defect, missing document or
breach and request that NC Capital deliver such missing document or cure such
defect or breach within 60 days from the date NC Capital was notified of such
missing document, defect or breach, and if NC Capital does not deliver such
missing document or cure such defect or breach in all material respects during
such period, the Master Servicer, to the extent it is not NC Capital or an
Affiliate of NC Capital, and otherwise the Indenture Trustee, shall enforce the
obligations of NC Capital under the Mortgage Loan Sale and Contribution
Agreement to repurchase such Mortgage Loan from the Issuer at the Purchase Price
within 90 days after the date on which NC Capital was notified of such missing
document, defect or breach, if and to the extent that NC Capital is obligated to
do so under the Mortgage Loan Sale and Contribution Agreement. The Purchase
Price for the repurchased Mortgage Loan shall be remitted to the Master Servicer
for deposit in the Collection Account and the Indenture Trustee, upon receipt of
written certification from the Master Servicer of such deposit, shall release to
NC Capital the related Mortgage File and the Indenture Trustee shall execute and
deliver such instruments of transfer or assignment, in
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each case without recourse, as NC Capital shall furnish to it and as shall be
necessary to vest in NC Capital any Mortgage Loan released pursuant hereto. The
Indenture Trustee shall not have any further responsibility with regard to such
Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above,
if so provided in the Mortgage Loan Sale and Contribution Agreement, NC Capital
may cause such Mortgage Loan to be removed from the Trust Estate (in which case
it shall become a Deleted Mortgage Loan) and substitute one or more Qualified
Substitute Mortgage Loans in the manner and subject to the limitations set forth
in Section 2.03(b); provided, however, NC Capital may not substitute a Qualified
Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any
predatory or abusive lending law. It is understood and agreed that the
obligation of NC Capital to cure or to repurchase (or to substitute for) any
Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy respecting such omission, defect or
breach available to the Indenture Trustee and the Noteholders. The Indenture
Trustee will be reimbursed for reasonable expenses incurred in connection with
any breach or defect giving rise to the purchase obligation under this Section
2.03 pursuant to Section 3.11(a)(viii).
With respect to the representations and warranties made by NC
Capital in the Mortgage Loan Sale and Contribution Agreement, the Indenture
Trustee shall not be charged with knowledge of any breach of any such
representation or warranty by NC Capital unless a Responsible Officer of the
Indenture Trustee at the Corporate Trust Office obtains actual knowledge of such
breach or a Responsible Officer of the Indenture Trustee receives written notice
of such breach from the Depositor, the Master Servicer or the Noteholders.
(b) As to any Deleted Mortgage Loan for which NC Capital
substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution
shall be effected by NC Capital delivering to the Indenture Trustee, for such
Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the Assignment to the Indenture Trustee, and such other documents and
agreements, with all necessary endorsements thereon, as are required by Section
2.1(b) of the Mortgage Loan Sale and Contribution Agreement, together with an
Officers' Certificate providing that each such Qualified Substitute Mortgage
Loan satisfies the definition thereof and specifying the Substitution Shortfall
Amount (as described below), if any, in connection with such substitution. The
Indenture Trustee shall acknowledge receipt for such Qualified Substitute
Mortgage Loan or Loans and, within ten Business Days thereafter, shall review
such documents as specified in Section 2.1(b) of the Mortgage Loan Sale and
Contribution Agreement and deliver to the Depositor and the Master Servicer,
with respect to such Qualified Substitute Mortgage Loan or Loans, a
certification substantially in the form attached as Exhibit C-1 to the
Indenture, with any applicable exceptions noted thereon. Within one year of the
date of substitution, the Indenture Trustee shall deliver to the Depositor and
the Master Servicer a certification substantially in the form of Exhibit C-2 to
the Indenture with respect to such Qualified Substitute Mortgage Loan or Loans,
with any applicable exceptions noted thereon. Monthly Payments due with respect
to Qualified Substitute Mortgage Loans in the month of substitution are not part
of the Trust Estate and will be retained by NC Capital. For the month of
substitution, payments to Noteholders will reflect the Monthly Payment due on
such Deleted Mortgage Loan on or before the Due Date in the month of
substitution, and NC Capital shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Master
Servicer shall give or cause to be given written notice to
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the Noteholders that such substitution has taken place, shall amend the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the
terms of this Servicing Agreement and the substitution of the Qualified
Substitute Mortgage Loan or Loans and shall deliver a copy of such amended
Mortgage Loan Schedule to the Indenture Trustee and the Owner Trustee. Upon such
substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute
part of the Mortgage Pool and shall be subject in all respects to the terms of
this Servicing Agreement and the Mortgage Loan Sale and Contribution Agreement,
including, all applicable representations and warranties thereof included in the
Mortgage Loan Sale and Contribution Agreement.
For any month in which NC Capital substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (the "Substitution Shortfall Amount"),
if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans
exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan,
the Stated Principal Balance thereof as of the date of substitution, together
with one month's interest on such Stated Principal Balance at the applicable Net
Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances
(including Nonrecoverable P&I Advances and Nonrecoverable Servicing Advances)
related thereto. On the date of such substitution, NC Capital will deliver or
cause to be delivered to the Master Servicer for deposit in the Collection
Account an amount equal to the Substitution Shortfall Amount, if any, and the
Indenture Trustee, upon receipt of the related Qualified Substitute Mortgage
Loan or Loans and certification by the Master Servicer of such deposit, shall
release to NC Capital the related Mortgage File or Files and the Indenture
Trustee shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, NC Capital shall deliver to it and as shall be
necessary to vest therein any Deleted Mortgage Loan released pursuant hereto.
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ARTICLE III
ADMINISTRATION ANDSERVICING OF MORTGAGE LOANS
Section 3.01. MASTER SERVICER TO ACT AS MASTER SERVICER.
The Master Servicer shall service and administer the Mortgage
Loans on behalf of the Trust Estate and in the best interests of and for the
benefit of the Noteholders (as determined by the Master Servicer in its
reasonable judgment) in accordance with the terms of this Servicing Agreement
and the respective Mortgage Loans and, to the extent consistent with such terms,
in the same manner in which it services and administers similar mortgage loans
for its own portfolio, giving due consideration to customary and usual standards
of practice of mortgage lenders and loan servicers administering similar
mortgage loans but without regard to:
(i) any relationship that the Master Servicer, any
Sub-Servicer or any Affiliate of the Master Servicer or any
Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Note by the Master
Servicer or any Affiliate of the Master Servicer;
(iii) the Master Servicer's obligation to make P&I Advances or
Servicing Advances; or
(iv) the Master Servicer's or any Sub-Servicer's right to
receive compensation for its services hereunder or with respect to any
particular transaction.
To the extent consistent with the foregoing, the Master
Servicer (a) shall seek to maximize the timely and complete recovery of
principal and interest on the Mortgage Notes and (b) shall waive (or permit a
Sub-Servicer to waive) a Prepayment Charge only under the following
circumstances: (i) such waiver is standard and customary in servicing similar
Mortgage Loans and (ii) either (A) such waiver would, in the reasonable
judgement of the Master Servicer, maximize recovery of total proceeds taking
into account the value of such Prepayment Charge and the related Mortgage Loan
and, if such waiver is made in connection with a refinancing of the related
Mortgage Loan, such refinancing is related to a default or a reasonably
foreseeable default or (B) such waiver is made in connection with a refinancing
of the related Mortgage Loan unrelated to a default or a reasonably foreseeable
default where (x) the related mortgagor has stated to the Master Servicer or an
applicable Sub-Servicer an intention to refinance the related Mortgage Loan and
(y) the Master Servicer has concluded in its reasonable judgement that the
waiver of such Prepayment Charge would induce such mortgagor to refinance with
the Master Servicer or (iii) collection of the related Prepayment Charge would
violate applicable law. If a Prepayment Charge is waived as permitted by meeting
both of the standards described in clauses (i) and (ii)(B) above, then the
Master Servicer is required to pay the amount of such waived Prepayment Charge,
for the benefit of the Holders of the Notes, by depositing such amount into the
Collection Account together with and at the time that the amount prepaid on the
related Mortgage Loan is required to be deposited into the Collection Account.
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Subject only to the above-described servicing standards and
the terms of this Servicing Agreement and of the respective Mortgage Loans, the
Master Servicer shall have full power and authority, acting alone or through
Sub-Servicers as provided in Section 3.02, to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Master Servicer in its own name or in the name of a Sub-Servicer is hereby
authorized and empowered by the Indenture Trustee when the Master Servicer
believes it appropriate in its best judgment in accordance with the servicing
standards set forth above, to execute and deliver, on behalf of the Trust
Estate, the Issuer, the Noteholders and the Indenture Trustee or any of them,
and upon written notice to the Indenture Trustee, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans and the
Mortgaged Properties and to institute foreclosure proceedings or obtain a
deed-in-lieu of foreclosure so as to convert the ownership of such properties,
and to hold or cause to be held title to such properties, on behalf of the
Indenture Trustee and Noteholders. The Master Servicer shall service and
administer the Mortgage Loans in accordance with applicable state and federal
law and shall provide to the Mortgagors any reports required to be provided to
them thereby. The Master Servicer shall also comply in the performance of this
Servicing Agreement with all reasonable rules and requirements of each insurer
under any standard hazard insurance policy. Subject to Section 3.17, the Issuer
and the Indenture Trustee shall execute, at the written request of the Master
Servicer, and furnish to the Master Servicer and any Sub-Servicer any special or
limited powers of attorney and other documents necessary or appropriate to
enable the Master Servicer or any Sub-Servicer to carry out their servicing and
administrative duties hereunder and the Issuer and the Indenture Trustee shall
not be liable for the actions of the Master Servicer or any Sub-Servicers under
such powers of attorney.
Subject to Section 3.09 hereof, in accordance with the
standards of the preceding paragraph, the Master Servicer shall advance or cause
to be advanced funds as necessary for the purpose of effecting the timely
payment of taxes and assessments on the Mortgaged Properties in a manner and at
a time that avoids the loss of the Mortgaged Property due to a tax sale or the
foreclosure as a result of a tax lien, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
Any cost incurred by the Master Servicer or by Sub-Servicers in effecting the
timely payment of taxes and assessments on a Mortgaged Property shall not, for
the purpose of calculating payments to Noteholders, be added to the unpaid
Stated Principal Balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit.
Notwithstanding anything in this Servicing Agreement to the
contrary, the Master Servicer may not make any future advances with respect to a
Mortgage Loan (except as provided in Section 4.01) and the Master Servicer shall
not permit any modification with respect to any Mortgage Loan that would change
the Mortgage Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or change the final
maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the
Mortgagor is in default with respect to the Mortgage Loan or such default is, in
the judgment of the Master Servicer, reasonably foreseeable).
12
The Master Servicer may delegate its responsibilities under
this Servicing Agreement; provided, however, that no such delegation shall
release the Master Servicer from the responsibilities or liabilities arising
under this Servicing Agreement.
Section 3.02. SUB-SERVICING AGREEMENTS BETWEEN MASTER SERVICER
AND SUB-SERVICERS.
(a) The Master Servicer may enter into Sub-Servicing
Agreements with Sub-Servicers for the servicing and administration of the
Mortgage Loans; provided, however, that such agreements would not result in a
withdrawal or a downgrading by any Rating Agency of the rating on any Class of
Notes. The Indenture Trustee is hereby authorized to acknowledge, at the request
of the Master Servicer, any Sub-Servicing Agreement that, based on an Officers'
Certificate of the Master Servicer delivered to the Indenture Trustee (upon
which the Indenture Trustee can conclusively rely), meets the requirements
applicable to Sub-Servicing Agreements set forth in this Servicing Agreement and
that is otherwise permitted under this Servicing Agreement.
Each Sub-Servicer shall be (i) authorized to transact business
in the state or states where the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to enable the
Sub-Servicer to perform its obligations hereunder and under the Sub-Servicing
Agreement and (ii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer. Each
Sub-Servicing Agreement must impose on the Sub-Servicer requirements conforming
to the provisions set forth in Section 3.08 and provide for servicing of the
Mortgage Loans consistent with the terms of this Servicing Agreement. The Master
Servicer will examine each Sub-Servicing Agreement and will be familiar with the
terms thereof. The terms of any Sub-Servicing Agreement will not be inconsistent
with any of the provisions of this Servicing Agreement. The Master Servicer and
the Sub-Servicers may enter into and make amendments to the Sub-Servicing
Agreements or enter into different forms of Sub-Servicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Servicing Agreement, and that no such
amendment or different form shall be made or entered into which could be
reasonably expected to be materially adverse to the interests of the Noteholders
without the consent of the Holders of Notes entitled to at least 66% of the
Voting Rights; provided, further, that the consent of the Holders of Notes
entitled to at least 66% of the Voting Rights shall not be required (i) to cure
any ambiguity or defect in a Sub-Servicing Agreement, (ii) to correct, modify or
supplement any provisions of a Sub-Servicing Agreement, or (iii) to make any
other provisions with respect to matters or questions arising under a
Sub-Servicing Agreement, which, in each case, shall not be inconsistent with the
provisions of this Servicing Agreement. Any variation without the consent of the
Holders of Notes entitled to at least 66% of the Voting Rights from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Sub-Servicing Accounts, or credits and charges to the
Sub-Servicing Accounts or the timing and amount of remittances by the
Sub-Servicers to the Master Servicer, are conclusively deemed to be inconsistent
with this Servicing Agreement and therefore prohibited. The Master Servicer
shall deliver to the Indenture Trustee, upon its request, copies of all
Sub-Servicing Agreements, and any amendments or modifications thereof, promptly
upon the Master Servicer's execution and delivery of such instruments.
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(b) As part of its servicing activities hereunder, the Master
Servicer, for the benefit of the Indenture Trustee and the Noteholders, shall
enforce the obligations of each Sub-Servicer under the related Sub-Servicing
Agreement, including, without limitation, any obligation of a Sub-Servicer to
make advances in respect of delinquent payments as required by a Sub-Servicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements, and the pursuit
of other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Master Servicer shall pay the costs of enforcing the obligations of a
Sub-Servicer at its own expense, and shall be reimbursed therefor only (i) from
a general recovery resulting from such enforcement, to the extent, if any, that
such recovery exceeds all amounts due in respect of the related Mortgage Loans,
or (ii) from a specific recovery of costs, expenses or attorneys' fees against
the party against whom such enforcement is directed.
Section 3.03. SUCCESSOR SUB-SERVICERS.
The Master Servicer shall be entitled to terminate any
Sub-Servicing Agreement and the rights and obligations of any Sub-Servicer
pursuant to any Sub-Servicing Agreement in accordance with the terms and
conditions of such Sub-Servicing Agreement. In the event of termination of any
Sub-Servicer, all servicing obligations of such Sub-Servicer shall be assumed
simultaneously by the Master Servicer without any act or deed on the part of
such Sub-Servicer or the Master Servicer, and the Master Servicer either shall
service directly the related Mortgage Loans or shall enter into a Sub-Servicing
Agreement with a successor Sub-Servicer which qualifies under Section 3.02.
Any Sub-Servicing Agreement shall include the provision that
such agreement may be immediately terminated by the Indenture Trustee (if the
Indenture Trustee is acting as Master Servicer) without fee, in accordance with
the terms of this Servicing Agreement, in the event that the Master Servicer (or
the Indenture Trustee, if it is then acting as Master Servicer) shall, for any
reason, no longer be the Master Servicer (including termination due to a Master
Servicer Event of Default).
Section 3.04. LIABILITY OF THE MASTER SERVICER.
Notwithstanding any Sub-Servicing Agreement or the provisions
of this Servicing Agreement relating to agreements or arrangements between the
Master Servicer and a Sub-Servicer or reference to actions taken through a
Sub-Servicer or otherwise, the Master Servicer shall remain obligated and
primarily liable to the Indenture Trustee and the Noteholders for the servicing
and administering of the Mortgage Loans in accordance with the provisions of
Section 3.01 without diminution of such obligation or liability by virtue of
such Sub-Servicing Agreements or arrangements or by virtue of indemnification
from the Sub-Servicer and to the same extent and under the same terms and
conditions as if the Master Servicer alone were servicing and administering the
Mortgage Loans. The Master Servicer shall be entitled to enter into any
agreement with a Sub-Servicer for indemnification of the Master Servicer by such
Sub-Servicer and nothing contained in this Servicing Agreement shall be deemed
to limit or modify such indemnification.
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Section 3.05. NO CONTRACTUAL RELATIONSHIP BETWEEN
SUB-SERVICERS, THE INDENTURE TRUSTEE OR THE
NOTEHOLDERS.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such shall be deemed to be between the Sub-Servicer and the
Master Servicer alone, and the Indenture Trustee and the Noteholders shall not
be deemed parties thereto and shall have no claims, rights, obligations, duties
or liabilities with respect to the Sub-Servicer except as set forth in Section
3.06. The Master Servicer shall be solely liable for all fees owed by it to any
Sub-Servicer, irrespective of whether the Master Servicer's compensation
pursuant to this Servicing Agreement is sufficient to pay such fees.
Section 3.06. ASSUMPTION OR TERMINATION OF SUB-SERVICING
AGREEMENTS BY THE INDENTURE TRUSTEE.
In the event the Master Servicer shall for any reason no
longer be the master servicer (including by reason of the occurrence of a Master
Servicer Event of Default), the Indenture Trustee, its designee or other
successor master servicer shall thereupon assume all of the rights and
obligations of the Master Servicer under each Sub-Servicing Agreement that the
Master Servicer may have entered into, unless the Indenture Trustee, such
designee or other successor master servicer elects to terminate any
Sub-Servicing Agreement in accordance with its terms as provided in Section
3.03. Upon such assumption, the Indenture Trustee, its designee or the successor
master servicer appointed pursuant to Section 6.02 shall be deemed, subject to
Section 3.03, to have assumed all of the Master Servicer's interest therein and
to have replaced the Master Servicer as a party to each Sub-Servicing Agreement
to the same extent as if each Sub-Servicing Agreement had been assigned to the
assuming party, except that (i) the Master Servicer shall not thereby be
relieved of any liability or obligations under any Sub-Servicing Agreement that
arose before it ceased to be the Master Servicer and (ii) none of the Indenture
Trustee, its designee or any successor Master Servicer shall be deemed to have
assumed any liability or obligation of the Master Servicer that arose before it
ceased to be the Master Servicer.
The Master Servicer at its expense shall, upon request of the
Indenture Trustee, deliver to the assuming party all documents and records
relating to each Sub-Servicing Agreement and the Mortgage Loans then being
serviced and an accounting of amounts collected and held by or on behalf of it,
and otherwise use its best efforts to effect the orderly and efficient transfer
of the Sub-Servicing Agreements to the assuming party.
The Servicing Fee payable to the Indenture Trustee or other
successor master servicer shall be payable from payments received on the
Mortgage Loans in the amount and in the manner set forth in this Servicing
Agreement.
Section 3.07. COLLECTION OF CERTAIN MORTGAGE LOAN PAYMENTS.
The Master Servicer shall make reasonable efforts to collect
all payments called for under the terms and provisions of the Mortgage Loans,
and shall, to the extent such procedures shall be consistent with this Servicing
Agreement and the terms and provisions of any applicable insurance policies,
follow such collection procedures as it would follow with respect
15
to mortgage loans comparable to the Mortgage Loans and held for its own account.
Consistent with the foregoing, the Master Servicer may in its discretion (i)
waive any late payment charge or, if applicable, any penalty interest, or (ii)
extend the due dates for the Monthly Payments due on a Mortgage Note for a
period of not greater than 180 days; provided, however, that any extension
pursuant to clause (ii) above shall not affect the amortization schedule of any
Mortgage Loan for purposes of any computation hereunder, except as provided
below. In the event of any such arrangement pursuant to clause (ii) above, the
Master Servicer shall make timely advances on such Mortgage Loan during such
extension pursuant to Section 4.01 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangement. Notwithstanding the foregoing, in the event that any Mortgage Loan
is in default or, in the judgment of the Master Servicer, such default is
reasonably foreseeable, the Master Servicer, consistent with the standards set
forth in Section 3.01, may also waive, modify or vary any term of such Mortgage
Loan (including modifications that would change the Mortgage Rate, forgive the
payment of principal or interest or extend the final maturity date of such
Mortgage Loan), accept payment from the related Mortgagor of an amount less than
the Stated Principal Balance in final satisfaction of such Mortgage Loan (such
payment, a "Short Pay-off"), or consent to the postponement of strict compliance
with any such term or otherwise grant indulgence to any Mortgagor.
Section 3.08. SUB-SERVICING ACCOUNTS.
In those cases where a Sub-Servicer is servicing a Mortgage
Loan pursuant to a Sub-Servicing Agreement, the Sub-Servicer will be required to
establish and maintain one or more accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account and shall
comply with all requirements of this Servicing Agreement relating to the
Collection Account. The Sub-Servicer shall deposit in the clearing account in
which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and in
no event more than one Business Day after the Sub-Servicer's receipt thereof,
all proceeds of Mortgage Loans received by the Sub-Servicer less its servicing
compensation to the extent permitted by the Sub-Servicing Agreement, and shall
thereafter deposit such amounts in the Sub-Servicing Account, in no event more
than two Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Collection Account or remit such
proceeds to the Master Servicer for deposit in the Collection Account not later
than two Business Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Servicing Agreement, the Master Servicer shall be
deemed to have received payments on the Mortgage Loans when the Sub-Servicer
receives such payments.
Section 3.09. COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR
ITEMS; SERVICING ACCOUNTS.
The Master Servicer shall establish and maintain, or cause to
be established and maintained, one or more accounts (the "Servicing Accounts"),
into which all collections from the Mortgagors (or related advances from
Sub-Servicers) for the payment of taxes, assessments, hazard insurance premiums
and comparable items for the account of the Mortgagors ("Escrow Payments") shall
be deposited and retained. Servicing Accounts shall be Eligible Accounts. The
Master Servicer shall deposit in the clearing account in which it customarily
deposits payments
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and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Master Servicer's receipt thereof, all Escrow Payments collected on account
of the Mortgage Loans and shall thereafter deposit such Escrow Payments in the
Servicing Accounts, in no event more than two Business Days after the receipt of
such Escrow Payments, all Escrow Payments collected on account of the Mortgage
Loans for the purpose of effecting the timely payment of any such items as
required under the terms of this Servicing Agreement. Withdrawals of amounts
from a Servicing Account may be made only to (i) effect payment of taxes,
assessments, hazard insurance premiums, and comparable items in a manner and at
a time that assures that the lien priority of the Mortgage is not jeopardized
(or, with respect to the payment of taxes, in a manner and at a time that avoids
the loss of the Mortgaged Property due to a tax sale or the foreclosure as a
result of a tax lien); (ii) reimburse the Master Servicer (or a Sub-Servicer to
the extent provided in the related Sub-Servicing Agreement) out of related
collections for any advances made pursuant to Section 3.01 (with respect to
taxes and assessments) and Section 3.14 (with respect to hazard insurance);
(iii) refund to Mortgagors any sums as may be determined to be overages; (iv)
pay interest, if required and as described below, to Mortgagors on balances in
the Servicing Account; or (v) clear and terminate the Servicing Account at the
termination of the Master Servicer's obligations and responsibilities in respect
of the Mortgage Loans under this Servicing Agreement in accordance with Section
7.08. As part of its servicing duties, the Master Servicer or Sub-Servicers
shall pay to the Mortgagors interest on funds in the Servicing Accounts, to the
extent required by law and, to the extent that interest earned on funds in the
Servicing Accounts is insufficient, to pay such interest from its or their own
funds, without any reimbursement therefor.
Section 3.10. COLLECTION ACCOUNT AND PAYMENT ACCOUNT.
(a) On behalf of the Trust Estate, the Master Servicer shall
establish and maintain, or cause to be established and maintained, one or more
accounts (such account or accounts, the "Collection Account"), held in trust for
the benefit of the Owner Trustee, the Indenture Trustee and the Noteholders. On
behalf of the Trust, the Master Servicer shall deposit or cause to be deposited
in the clearing account in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Master Servicer's receipt thereof, and shall thereafter deposit in the
Collection Account, in no event more than two Business Days after the Master
Servicer's receipt thereof, as and when received or as otherwise required
hereunder, the following payments and collections received or made by it
subsequent to the Cut-off Date (other than in respect of principal or interest
on the related Mortgage Loans due on or before the Cut-off Date), or payments
(other than Principal Prepayments) received by it on or prior to the Cut-off
Date but allocable to a Due Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds, Liquidation Proceeds (other than
proceeds collected in respect of any particular REO Property and
amounts paid in connection with
17
the redemption of the Notes pursuant to Section 8.07 of the Indenture)
and Subsequent Recoveries;
(iv) any amounts required to be deposited pursuant to Section
3.12 in connection with any losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Master
Servicer pursuant to the second paragraph of Section 3.14(a) in respect
of any blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or
purchased in accordance with Section 3.1 of the Mortgage Loan Sale and
Contribution Agreement or Section 3.16;
(vii) all amounts required to be deposited in connection with
shortfalls in principal amount of Qualified Substitute Mortgage Loans
pursuant to Section 2.03(b) hereof; and
(viii) all Prepayment Charges collected by the Master Servicer
in connection with the Principal Prepayment of any of the Mortgage
Loans.
The foregoing requirements for deposit in the Collection
Account shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments in the nature of late payment
charges, modification or assumption fees, or insufficient funds charges need not
be deposited by the Master Servicer in the Collection Account and may be
retained by the Master Servicer as additional compensation. In the event the
Master Servicer shall deposit in the Collection Account any amount not required
to be deposited therein, it may at any time withdraw such amount from the
Collection Account, any provision herein to the contrary notwithstanding.
(b) On behalf of the Trust Estate, the Master Servicer shall
deliver to the Indenture Trustee in immediately available funds for deposit in
the Payment Account by 1:00 p.m. New York time (i) on the Master Servicer
Remittance Date, that portion of the Available Payment Amount (calculated
without regard to the references in clause (2) of the definition thereof to
amounts that may be withdrawn from the Payment Account) for the related Payment
Date then on deposit in the Collection Account and the amount of all Prepayment
Charges collected by the Master Servicer in connection with the Principal
Prepayment of any of the Mortgage Loans then on deposit in the Collection
Account and the amount of any funds reimbursable to an Advancing Person pursuant
to Section 3.26 and (ii) on each Business Day as of the commencement of which
the balance on deposit in the Collection Account exceeds $75,000 following any
withdrawals pursuant to the next succeeding sentence, the amount of such excess,
but only if the Collection Account constitutes an Eligible Account solely
pursuant to clause (ii) of the definition of "Eligible Account." If the balance
on deposit in the Collection Account exceeds $75,000 as of the commencement of
business on any Business Day and the Collection Account constitutes an Eligible
Account solely pursuant to clause (ii) of the definition of "Eligible Account,"
the Master Servicer shall, by 1:00 p.m. New York time on such Business Day,
withdraw from the Collection Account any and all amounts payable or reimbursable
to the
18
Depositor, the Master Servicer, the Owner Trustee, the Indenture Trustee,
the Originator, the Seller or any Sub-Servicer pursuant to Section 3.11 and
shall pay such amounts to the Persons entitled thereto.
(c) Funds in the Collection Account and the Payment Account
may be invested in Permitted Investments in accordance with the provisions set
forth in Section 3.12. The Master Servicer shall give notice to the Indenture
Trustee of the location of the Collection Account maintained by it when
established and prior to any change thereof. The Indenture Trustee shall give
notice to the Master Servicer and the Depositor of the location of the Payment
Account when established and prior to any change thereof.
(d) Funds held in the Collection Account at any time may be
delivered by the Master Servicer to the Indenture Trustee for deposit in an
account (which may be the Payment Account and must satisfy the standards for the
Payment Account as set forth in the definition thereof) and for all purposes of
this Servicing Agreement shall be deemed to be a part of the Collection Account
(and in such event, the Master Servicer shall provide the Indenture Trustee with
written instructions regarding the investment of such funds); provided, however,
that the Indenture Trustee shall have the sole authority to withdraw any funds
held pursuant to this subsection (d). In the event the Master Servicer shall
deliver to the Indenture Trustee for deposit in the Payment Account any amount
not required to be deposited therein, it may at any time request in writing that
the Indenture Trustee withdraw such amount from the Payment Account and remit to
it any such amount, any provision herein to the contrary notwithstanding. In
addition, the Master Servicer shall deliver to the Indenture Trustee from time
to time for deposit, and the Indenture Trustee shall so deposit, in the Payment
Account:
(i) any P&I Advances, as required pursuant to Section 4.01;
(ii) any amounts required to be deposited pursuant to Section
3.23(d) or (f) in connection with any REO Property; and
(iii) any amounts required to be deposited pursuant to Section
3.24 in connection with any Prepayment Interest Shortfall.
(e) The Master Servicer shall deposit in the Collection
Account any amounts required to be deposited pursuant to Section 3.12(b) in
connection with losses realized on Permitted Investments with respect to funds
held in the Collection Account (and the Payment Account to the extent that funds
therein are deemed to be part of the Collection Account).
Section 3.11. WITHDRAWALS FROM THE COLLECTION ACCOUNT AND
PAYMENT ACCOUNT.
(a) The Master Servicer shall, from time to time, make
withdrawals from the Collection Account for any of the following purposes or as
described in Section 4.01:
(i) to remit to the Indenture Trustee for deposit in the
Payment Account the amounts required to be so remitted pursuant to
Section 3.10(b) or permitted to be so remitted pursuant to the first
sentence of Section 3.10(d);
19
(ii) subject to Section 3.16(d), to reimburse the Master
Servicer for P&I Advances, but only to the extent of amounts received
which represent Late Collections (net of the related Servicing Fees) of
Monthly Payments on Mortgage Loans with respect to which such P&I
Advances were made in accordance with the provisions of Section 4.01;
(iii) subject to Section 3.16(d), to pay the Master Servicer
or any Sub-Servicer, as applicable, (a) any unpaid Servicing Fees, (b)
any unreimbursed Servicing Advances with respect to each Mortgage Loan,
but only to the extent of any Late Collections, Liquidation Proceeds,
Insurance Proceeds and Subsequent Recoveries received with respect to
such Mortgage Loan and (c) any Nonrecoverable Servicing Advances with
respect to the final liquidation of a Mortgage Loan, but only to the
extent that Late Collections, Liquidation Proceeds and Insurance
Proceeds received with respect to such Mortgage Loan are insufficient
to reimburse the Master Servicer or any Sub-Servicer for Servicing
Advances;
(iv) to pay to the Master Servicer as servicing compensation
(in addition to the Servicing Fee) on the Master Servicer Remittance
Date any interest or investment income earned on funds deposited in the
Collection Account;
(v) to pay to the Master Servicer, the Depositor, the
Originator or the Seller, as the case may be, with respect to each
Mortgage Loan that has previously been purchased or replaced pursuant
to Section 3.1 of the Mortgage loan Sale and Contribution Agreement or
Section 3.16(c) all amounts received thereon subsequent to the date of
purchase or substitution, as the case may be;
(vi) to reimburse the Master Servicer for any P&I Advance
previously made which the Master Servicer has determined to be a
Nonrecoverable P&I Advance in accordance with the provisions of Section
4.01;
(vii) to reimburse the Master Servicer or the Depositor for
expenses incurred by or reimbursable to the Master Servicer or the
Depositor, as the case may be, pursuant to Section 3.02(b) and Section
5.03;
(viii) to reimburse the Master Servicer or Indenture Trustee
for expenses reasonably incurred in connection with any breach or
defect giving rise to the purchase obligation under Section 3.1 of the
Mortgage Loan Sale and Contribution Agreement and Section 2.03 hereof,
including any expenses arising out of the enforcement of the purchase
obligation;
(ix) to pay, or to reimburse the Master Servicer for Servicing
Advances in respect of, expenses incurred in connection with any
Mortgage Loan pursuant to Section 3.16(b); and
(x) to clear and terminate the Collection Account pursuant to
Section 7.08.
The Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any withdrawal from the Collection
20
Account, to the extent held by or on behalf of it, pursuant to subclauses (ii),
(iii), (iv), (v), (vi), (viii) and (ix) above. The Master Servicer shall provide
written notification to the Indenture Trustee, on or prior to the next
succeeding Master Servicer Remittance Date, upon making any withdrawals from the
Collection Account pursuant to subclauses (vi) and (vii) above; provided that an
Officers' Certificate in the form described under Section 4.01(d) shall suffice
for such written notification to the Indenture Trustee in respect of clause (vi)
hereof.
(b) The Indenture Trustee shall, from time to time, make
withdrawals from the Payment Account, for any of the following purposes, without
priority:
(i) to make payments to Noteholders in accordance with Section
4.01;
(ii) to pay and reimburse itself and the Owner Trustee amounts
to which it or the Owner Trustee is entitled pursuant to Section 6.07
of the Indenture;
(iii) to reimburse itself pursuant to Section 6.02;
(iv) to pay to an Advancing Person reimbursements for P&I
Advances and/or Servicing Advances pursuant to Section 3.26; and
(v) to clear and terminate the Payment Account pursuant to
Section 4.10 of the Indenture.
Section 3.12. INVESTMENT OF FUNDS IN THE COLLECTION ACCOUNT
AND THE PAYMENT ACCOUNT.
(a) The Master Servicer may direct any depository institution
maintaining the Collection Account or any REO Account (for purposes of this
Section 3.12, an "Investment Account") to invest the funds in such Investment
Account in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, (i) no later than the Business
Day immediately preceding the date on which such funds are required to be
withdrawn from such account pursuant to this Servicing Agreement, if a Person
other than the Indenture Trustee is the obligor thereon, and (ii) no later than
the date on which such funds are required to be withdrawn from such account
pursuant to this Servicing Agreement, if the Indenture Trustee is the obligor
thereon. Amounts in the Payment Account shall be held uninvested unless directed
otherwise pursuant to Section 3.10(d) of the Servicing Agreement. All such
Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Indenture Trustee for the benefit of the Noteholders. The Indenture Trustee
shall be entitled to sole possession (except with respect to investment
direction of funds held in the Collection Account and any income and gain
realized thereon) over each such investment, and any certificate or other
instrument evidencing any such investment shall be delivered directly to the
Indenture Trustee or its agent, together with any document of transfer necessary
to transfer title to such investment to the Indenture Trustee or its nominee. In
the event amounts on deposit in an Investment Account are at any time invested
in a Permitted Investment payable on demand, the party with investment
discretion over such Investment Account shall:
21
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by a Responsible Officer of the Indenture Trustee that
such Permitted Investment would not constitute a Permitted Investment
in respect of funds thereafter on deposit in the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account and Payment Account, solely to the extent
that the Master Servicer gives the Indenture Trustee investment directions with
respect to the funds in the Payment Account pursuant to Section 3.10(d), and any
REO Account held by or on behalf of the Master Servicer, shall be for the
benefit of the Master Servicer and shall be subject to its withdrawal in
accordance with Section 3.11 or Section 3.23, as applicable. The Master Servicer
shall deposit in the Collection Account or any REO Account, as applicable, the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon realization of such
loss.
(c) Except as otherwise expressly provided in this Servicing
Agreement, if any default occurs in the making of a payment due under any
Permitted Investment, or if a default occurs in any other performance required
under any Permitted Investment (of which a Responsible Officer of the Indenture
Trustee obtains actual knowledge), the Indenture Trustee may and, subject to
Section 6.01 of the Indenture, upon the request of the Holders of Notes
representing more than 50% of the Voting Rights allocated to any Class of Notes,
shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(d) The Indenture Trustee or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Indenture
Trustee's economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. Such compensation shall not be considered an
amount that is reimbursable or payable to the Indenture Trustee pursuant to
Section 3.11 or 3.12.
Section 3.13. [RESERVED].
Section 3.14. MAINTENANCE OF HAZARD INSURANCE AND ERRORS AND
OMISSIONS AND FIDELITY COVERAGE.
(a) The Master Servicer shall cause to be maintained for each
Mortgage Loan fire insurance with extended coverage on the related Mortgaged
Property in an amount which is at least equal to the lesser of the current
principal balance of such Mortgage Loan and the amount necessary to fully
compensate for any damage or loss to the improvements that are a part of such
property on a replacement cost basis, in each case in an amount not less than
such
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amount as is necessary to avoid the application of any coinsurance clause
contained in the related hazard insurance policy. The Master Servicer shall also
cause to be maintained fire insurance with extended coverage on each REO
Property in an amount which is at least equal to the lesser of (i) the maximum
insurable value of the improvements which are a part of such property and (ii)
the outstanding principal balance of the related Mortgage Loan at the time it
became an REO Property, plus accrued interest at the Mortgage Rate and related
Servicing Advances. The Master Servicer will comply in the performance of this
Servicing Agreement with all reasonable rules and requirements of each insurer
under any such hazard policies. Any amounts to be collected by the Master
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or amounts
to be released to the Mortgagor in accordance with the procedures that the
Master Servicer would follow in servicing loans held for its own account,
subject to the terms and conditions of the related Mortgage and Mortgage Note)
shall be deposited in the Collection Account, subject to withdrawal pursuant to
Section 3.11, if received in respect of a Mortgage Loan, or in the REO Account,
subject to withdrawal pursuant to Section 3.23, if received in respect of an REO
Property. Any cost incurred by the Master Servicer in maintaining any such
insurance shall not, for the purpose of calculating payments to Noteholders, be
added to the unpaid Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. It is understood
and agreed that no earthquake or other additional insurance is to be required of
any Mortgagor other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance. If
the Mortgaged Property or REO Property is at any time in an area identified in
the Federal Register by the Federal Emergency Management Agency as having
special flood hazards and flood insurance has been made available, the Master
Servicer will cause to be maintained a flood insurance policy in respect
thereof. Such flood insurance shall be in an amount equal to the lesser of (i)
the unpaid principal balance of the related Mortgage Loan and (ii) the maximum
amount of such insurance available for the related Mortgaged Property under the
national flood insurance program (assuming that the area in which such Mortgaged
Property is located is participating in such program).
In the event that the Master Servicer shall obtain and
maintain a blanket policy with an insurer having a General Policy Rating of A:X
or better in Best's Key Rating Guide (or such other rating that is comparable to
such rating) insuring against hazard losses on all of the Mortgage Loans, it
shall conclusively be deemed to have satisfied its obligations as set forth in
the first two sentences of this Section 3.14, it being understood and agreed
that such policy may contain a deductible clause, in which case the Master
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy complying with the first two
sentences of this Section 3.14, and there shall have been one or more losses
which would have been covered by such policy, deposit to the Collection Account
from its own funds the amount not otherwise payable under the blanket policy
because of such deductible clause. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Master Servicer agrees to
prepare and present, on behalf of itself, the Indenture Trustee and Noteholders,
claims under any such blanket policy in a timely fashion in accordance with the
terms of such policy.
(b) The Master Servicer shall keep in force during the term of
this Servicing Agreement a policy or policies of insurance covering errors and
omissions for failure in the
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performance of the Master Servicer's obligations under this Servicing Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the
Mortgage Loans, unless the Master Servicer has obtained a waiver of such
requirements from Xxxxxx Mae or Xxxxxxx Mac. The Master Servicer shall also
maintain a fidelity bond in the form and amount that would meet the requirements
of Xxxxxx Mae or Xxxxxxx Mac, unless the Master Servicer has obtained a waiver
of such requirements from Xxxxxx Mae or Xxxxxxx Mac. The Master Servicer shall
be deemed to have complied with this provision if an Affiliate of the Master
Servicer has such errors and omissions and fidelity bond coverage and, by the
terms of such insurance policy or fidelity bond, the coverage afforded
thereunder extends to the Master Servicer. Any such errors and omissions policy
and fidelity bond shall by its terms not be cancelable without thirty days prior
written notice to the Indenture Trustee. The Master Servicer shall also cause
each Sub-Servicer to maintain a policy of insurance covering errors and
omissions and a fidelity bond which would meet such requirements.
Section 3.15. ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION
AGREEMENTS.
The Master Servicer will, to the extent it has knowledge of
any conveyance or prospective conveyance of any Mortgaged Property by any
Mortgagor (whether by absolute conveyance or by contract of sale, and whether or
not the Mortgagor remains or is to remain liable under the Mortgage Note and/or
the Mortgage), exercise its rights to accelerate the maturity of such Mortgage
Loan under the "due-on-sale" clause, if any, applicable thereto; provided,
however, that the Master Servicer shall not be required to take such action if
in its sole business judgment the Master Servicer believes it is not in the best
interests of the Trust Estate and shall not exercise any such rights if
prohibited by law from doing so. If the Master Servicer reasonably believes it
is unable under applicable law to enforce such "due-on-sale" clause, or if any
of the other conditions set forth in the proviso to the preceding sentence
apply, the Master Servicer will enter into an assumption and modification
agreement from or with the person to whom such property has been conveyed or is
proposed to be conveyed, pursuant to which such person becomes liable under the
Mortgage Note and, to the extent permitted by applicable state law, the
Mortgagor remains liable thereon. The Master Servicer is also authorized to
enter into a substitution of liability agreement with such person, pursuant to
which the original Mortgagor is released from liability and such person is
substituted as the Mortgagor and becomes liable under the Mortgage Note,
provided that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Originator and has a credit risk
rating at least equal to that of the original Mortgagor. In connection with any
assumption or substitution, the Master Servicer shall apply the Originator's
underwriting standards and follow such practices and procedures as shall be
normal and usual in its general mortgage servicing activities and as it applies
to other mortgage loans owned solely by it. The Master Servicer shall not take
or enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy. Any fee collected by the Master Servicer in respect of an assumption,
modification or substitution of liability agreement shall be retained by the
Master Servicer as additional servicing compensation. In connection with any
such assumption, no material term of the Mortgage Note (including but not
limited to the related Mortgage Rate and the amount of the Monthly Payment) may
be amended or modified, except as otherwise required pursuant to the terms
thereof. The Master Servicer shall notify the Indenture Trustee that any
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such substitution, modification or assumption agreement has been completed by
forwarding to the Indenture Trustee the executed original of such substitution,
modification or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision
of this Servicing Agreement, the Master Servicer shall not be deemed to be in
default, breach or any other violation of its obligations hereunder by reason of
any assumption of a Mortgage Loan by operation of law or by the terms of the
Mortgage Note or any assumption which the Master Servicer may be restricted by
law from preventing, for any reason whatever. For purposes of this Section 3.15,
the term "assumption" is deemed to also include a sale (of the Mortgaged
Property) subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
Section 3.16. REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Master Servicer shall exercise its discretion,
consistent with customary servicing procedures and the terms of this Servicing
Agreement, with respect to the enforcement and servicing of defaulted Mortgage
Loans in such manner as will maximize the receipt of principal and interest with
respect thereto, including but not limited to the modification of such Mortgage
Loan, or foreclosure upon the related Mortgaged Property and disposition
thereof.
In furtherance of the foregoing, the Master Servicer shall use
its best efforts, consistent with Accepted Servicing Practices, to foreclose
upon or otherwise comparably convert the ownership of properties securing such
of the Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07. The Master Servicer shall be responsible for all costs
and expenses incurred by it in any such proceedings; provided, however, that
such costs and expenses will be recoverable as Servicing Advances by the Master
Servicer as contemplated in Section 3.11 and Section 3.23. The foregoing is
subject to the provision that, in any case in which Mortgaged Property shall
have suffered damage from an Uninsured Cause, the Master Servicer shall not be
required to expend its own funds toward the restoration of such property unless
it shall determine in its discretion that such restoration will increase the
proceeds of liquidation of the related Mortgage Loan after reimbursement to
itself for such expenses.
(b) Notwithstanding the foregoing provisions of this Section
3.16 or any other provision of this Servicing Agreement, with respect to any
Mortgage Loan as to which the Master Servicer has received actual notice of, or
has actual knowledge of, the presence of any toxic or hazardous substance on the
related Mortgaged Property, the Master Servicer shall not, on behalf of the
Issuer either (i) obtain title to such Mortgaged Property as a result of or in
lieu of foreclosure or otherwise, or (ii) otherwise acquire possession of, or
take any other action with respect to, such Mortgaged Property, if, as a result
of any such action, the Indenture Trustee, the Trust Estate or the Noteholders
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
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1980, as amended from time to time, or any comparable law, unless the Master
Servicer has also previously determined, based on its reasonable judgment and a
report prepared by an Independent Person who regularly conducts environmental
audits using customary industry standards, that:
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trust Estate to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith; and
(2) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based
materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any federal, state or
local law or regulation, or that if any such materials are present for
which such action could be required, that it would be in the best
economic interest of the Trust Estate to take such actions with respect
to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by
this Section 3.16 shall be advanced by the Master Servicer, subject to the
Master Servicer's right to be reimbursed therefor from the Collection Account as
provided in Section 3.11(a)(ix), such right of reimbursement being prior to the
rights of Noteholders to receive any amount in the Collection Account received
in respect of the affected Mortgage Loan or other Mortgage Loans.
If the Master Servicer determines, as described above, that it
is in the best economic interest of the Trust Estate to take such actions as are
necessary to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes or petroleum-based materials affecting any such Mortgaged Property, then
the Master Servicer shall take such action as it deems to be in the best
economic interest of the Trust Estate; provided that any amounts disbursed by
the Master Servicer pursuant to this Section 3.16(b) shall constitute Servicing
Advances, subject to Section 4.01(d). The cost of any such compliance,
containment, cleanup or remediation shall be advanced by the Master Servicer,
subject to the Master Servicer's right to be reimbursed therefor from the
Collection Account as provided in Section 3.11(a)(iii) and (a)(ix), such right
of reimbursement being prior to the rights of Noteholders to receive any amount
in the Collection Account received in respect of the affected Mortgage Loan or
other Mortgage Loans.
(c) The Master Servicer may at its option, on behalf of the
Issuer, purchase from the Issuer any Mortgage Loan or related REO Property that
is 90 days or more delinquent, which the Master Servicer determines in good
faith will otherwise become subject to foreclosure proceedings (evidence of such
determination to be delivered in writing to the Indenture Trustee, in form and
substance satisfactory to the Indenture Trustee prior to purchase), at a price
equal to the Purchase Price; provided, however, that the Master Servicer shall
purchase any such Mortgage Loans or related REO Properties on the basis of
delinquency, purchasing the most delinquent Mortgage Loans or related REO
Properties first. The Purchase Price for any Mortgage Loan or related REO
Property purchased hereunder shall be deposited in the
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Collection Account, and the Indenture Trustee, upon receipt of written
certification from the Master Servicer of such deposit, shall release or cause
to be released to the Master Servicer the related Mortgage File and the
Indenture Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as the Master Servicer shall furnish
and as shall be necessary to vest in the Master Servicer title to any Mortgage
Loan or related REO Property released pursuant hereto.
(d) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds, Liquidation Proceeds or Subsequent Recoveries, in respect of
any Mortgage Loan, will be applied in the following order of priority: first, to
reimburse the Master Servicer or any Sub-Servicer for any related unreimbursed
Servicing Advances and P&I Advances, pursuant to Section 3.11(a)(ii) or
(a)(iii); second, to accrued and unpaid interest on the Mortgage Loan, to the
date of the Final Recovery Determination, or to the Due Date prior to the
Payment Date on which such amounts are to be distributed if not in connection
with a Final Recovery Determination; and third, as a recovery of principal of
the Mortgage Loan. If the amount of the recovery so allocated to interest is
less than the full amount of accrued and unpaid interest due on such Mortgage
Loan, the amount of such recovery will be allocated by the Master Servicer as
follows: first, to unpaid Servicing Fees; and second, to the balance of the
interest then due and owing. The portion of the recovery so allocated to unpaid
Servicing Fees shall be reimbursed to the Master Servicer or any Sub-Servicer
pursuant to Section 3.11(a)(iii).
(e) Furthermore, the Holder of the Certificates will have the
option to purchase, at any one time, 1.0% (and in any case, at least 5 Mortgage
Loans) of the Mortgage Loans, by aggregate Stated Principal Balance of the
Mortgage Loans as of such date, at a purchase price equal to the greater of (A)
the aggregate Purchase Price of such Mortgage Loans and (B) the aggregate fair
market value of such Mortgage Loans. The Mortgage Loans that may be purchased by
the Holder of the Trust Certificates pursuant to this paragraph will be selected
by the Master Servicer in its sole discretion. If at any time the Holder of the
Certificates exercises such option, it shall immediately notify or cause to be
notified the Indenture Trustee by a certification in the form of Exhibit B
(which certification shall include a statement to the effect that all amounts
required to be deposited in the Collection Account pursuant to Section 3.10 have
been or will be so deposited) of a Servicing Officer and shall request delivery
to it of the Mortgage File. Upon receipt of such certification and request, the
Indenture Trustee shall promptly release the related Mortgage Files to the
Holder of the Trust Certificates.
Section 3.17. TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE FILES.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes, the Master Servicer will
immediately notify or cause to be notified the Indenture Trustee by a
certification in the form of Exhibit B (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.10 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Mortgage File.
Upon receipt of such certification and request, the Indenture Trustee shall
promptly release the related Mortgage File to the Master Servicer at no cost to
the Indenture
27
Trustee or the Trust Estate. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Collection Account or the Payment Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Indenture Trustee
shall, upon any request made by or on behalf of the Master Servicer and delivery
to the Indenture Trustee of a Request for Release in the form of Exhibit B,
release the related Mortgage File to the Master Servicer, and the Indenture
Trustee shall, at the direction of the Master Servicer, execute such documents
as shall be necessary to the prosecution of any such proceedings. Such Request
for Release shall obligate the Master Servicer to return each and every document
previously requested from the Mortgage File to the Indenture Trustee when the
need therefor by the Master Servicer no longer exists, unless the Mortgage Loan
has been liquidated and the Liquidation Proceeds relating to the Mortgage Loan
have been deposited in the Collection Account or the Mortgage File or such
document has been delivered to an attorney, or to a public trustee or other
public official as required by law, for purposes of initiating or pursuing legal
action or other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and the Master Servicer has delivered, or caused
to be delivered, to the Indenture Trustee an additional Request for Release
certifying as to such liquidation or action or proceedings. Upon the request of
the Indenture Trustee, the Master Servicer shall provide notice to the Indenture
Trustee of the name and address of the Person to which such Mortgage File or
such document was delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage Loan
was liquidated and that all amounts received or to be received in connection
with such liquidation that are required to be deposited into the Collection
Account have been so deposited, or that such Mortgage Loan has become an REO
Property, any outstanding Requests for Release with respect to such Mortgage
Loan shall be released by the Indenture Trustee to the Master Servicer or its
designee.
(c) Upon written certification of a Servicing Officer, the
Indenture Trustee shall execute and deliver to the Master Servicer or the
Sub-Servicer, as the case may be, any court pleadings, requests for trustee's
sale or other documents necessary to the foreclosure or trustee's sale in
respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
Mortgage Note or Mortgage or otherwise available at law or in equity. Each such
certification shall include a request that such pleadings or documents be
executed by the Indenture Trustee and a statement as to the reason such
documents or pleadings are required and that the execution and delivery thereof
by the Indenture Trustee will not invalidate or otherwise affect the lien of the
Mortgage, except for the termination of such a lien upon completion of the
foreclosure or trustee's sale.
Section 3.18. SERVICING COMPENSATION.
As compensation for the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to the Servicing Fee with
respect to each Mortgage Loan payable solely from payments of interest in
respect of such Mortgage Loan, subject to Section 3.24. In addition, the Master
Servicer shall be entitled to recover unpaid Servicing Fees out of Insurance
Proceeds,
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Liquidation Proceeds or Subsequent Recoveries to the extent permitted by Section
3.11(a)(iii) and out of amounts derived from the operation and sale of an REO
Property to the extent permitted by Section 3.23. Except as provided in Sections
3.26, the right to receive the Servicing Fee may not be transferred in whole or
in part except in connection with the transfer of all of the Master Servicer's
responsibilities and obligations under this Servicing Agreement; provided,
however, that the Master Servicer may pay from the Servicing Fee any amounts due
to a Sub-Servicer pursuant to a Sub-Servicing Agreement entered into under
Section 3.02.
Additional servicing compensation in the form of assumption or
modification fees, late payment charges, insufficient funds charges or otherwise
(subject to Section 3.24 and other than Prepayment Charges) shall be retained by
the Master Servicer only to the extent such fees or charges are received by the
Master Servicer. The Master Servicer shall also be entitled pursuant to Section
3.11(a)(iv) to withdraw from the Collection Account and pursuant to Section
3.23(b) to withdraw from any REO Account, as additional servicing compensation,
interest or other income earned on deposits therein, subject to Section 3.12 and
Section 3.24. The Master Servicer shall be required to pay all expenses incurred
by it in connection with its servicing activities hereunder (including premiums
for the insurance required by Section 3.14, to the extent such premiums are not
paid by the related Mortgagors or by a Sub-Servicer, servicing compensation of
each Sub-Servicer, and to the extent provided herein in Section 8.05, the
expenses of the Indenture Trustee) and shall not be entitled to reimbursement
therefor except as specifically provided herein.
Section 3.19. REPORTS TO THE INDENTURE TRUSTEE AND OTHERS;
COLLECTION ACCOUNT STATEMENTS.
Not later than twenty days after each Payment Date, the Master
Servicer shall forward to the Indenture Trustee (upon the Indenture Trustee's
request) and the Depositor the most current available bank statement for the
Collection Account. Copies of such statement shall be provided by the Indenture
Trustee to any Noteholder and to any Person identified to the Indenture Trustee
as a prospective transferee of a Note, upon request at the expense of the
requesting party, provided such statement is delivered by the Master Servicer to
the Indenture Trustee.
In addition, on each Payment Date, the Master Servicer shall
forward to the Rating Agencies and the Indenture Trustee a report setting forth
the percentage of Mortgage Loans that are 30 or more days delinquent, in
foreclosure, have been converted to REO Properties or have been discharged by
reason of bankruptcy.
Section 3.20. STATEMENT AS TO COMPLIANCE.
Not later than March 15th of each calendar year commencing in
2005, the Master Servicer will deliver to the Indenture Trustee and the
Depositor an Officers' Certificate (upon which the Indenture Trustee can
conclusively rely in connection with its obligations under Section 7.05 of the
Indenture) substantially in the form of Exhibit D attached hereto stating, as to
each signatory thereof, that (i) a review of the activities of the Master
Servicer during the preceding calendar year and of performance under this
Servicing Agreement has been made under such officer's supervision and (ii) to
the best of such officer's knowledge, based on such
29
review, the Master Servicer has fulfilled all of its obligations under this
Servicing Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof. Copies of any such statement shall be
provided by the Indenture Trustee to any Noteholder and to any Person identified
to the Indenture Trustee as a prospective transferee of a Note, upon request at
the expense of the requesting party, provided such statement is delivered by the
Master Servicer to the Indenture Trustee.
Section 3.21. INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT.
Not later than March 15th of each calendar year commencing in
2005, the Master Servicer, at its expense, shall cause a nationally recognized
firm of independent certified public accountants to furnish to the Master
Servicer a report stating that (i) it has obtained a letter of representation
regarding certain matters from the management of the Master Servicer which
includes an assertion that the Master Servicer has complied with certain minimum
residential mortgage loan servicing standards, identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of residential mortgage
loans during the most recently completed calendar year and (ii) on the basis of
an examination conducted by such firm in accordance with standards established
by the American Institute of Certified Public Accountants, such representation
is fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of residential mortgage
loans by Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted in
accordance with the same standards (rendered within one year of such report)
with respect to those Sub-Servicers. Immediately upon receipt of such report,
the Master Servicer shall, at its own expense, furnish a copy of such report to
the Indenture Trustee and each Rating Agency. Copies of such statement shall be
provided by the Indenture Trustee to any Noteholder upon request, provided that
such statement is delivered by the Master Servicer to the Indenture Trustee.
Section 3.22. ACCESS TO CERTAIN DOCUMENTATION.
The Master Servicer shall provide to the Office of Thrift
Supervision, the FDIC, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Noteholder or Note
Owner, access to the documentation in the Master Servicer's possession regarding
the Mortgage Loans required by applicable laws and regulations. Such access
shall be afforded without charge, but only upon reasonable request and during
normal business hours at the offices of the Master Servicer designated by it. In
addition, access to the documentation in the Master Servicer's possession
regarding the Mortgage Loans will be provided to any Noteholder or Note Owner,
the Indenture Trustee, the Owner Trustee and to any Person identified to the
Master Servicer as a prospective transferee of a Note; provided, however, that
providing access to such Person will not violate any applicable laws, upon
reasonable request during normal business hours at the offices of the Master
Servicer designated by it at the expense of the Person requesting such access.
Section 3.23. TITLE, MANAGEMENT AND DISPOSITION OF REO
PROPERTY.
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(a) The deed or certificate of sale of any REO Property shall
be taken in the name of the Indenture Trustee, or its nominee, in trust for the
benefit of the Noteholders.
(b) The Master Servicer shall segregate and hold all funds
collected and received in connection with the operation of any REO Property
separate and apart from its own funds and general assets and shall establish and
maintain, or cause to be established and maintained, with respect to REO
Properties, an account held in trust for the Indenture Trustee for the benefit
of the Noteholders (the "REO Account"), which shall be an Eligible Account. The
Master Servicer shall be permitted to allow the Collection Account to serve as
the REO Account, subject to separate ledgers for each REO Property. The Master
Servicer shall be entitled to retain or withdraw any interest income paid on
funds deposited in the REO Account.
(c) The Master Servicer shall have the sole discretion to
determine whether an immediate sale of an REO Property or continued management
of such REO Property is in the best interests of the Noteholders. In furtherance
of the foregoing, the Master Servicer shall have full power and authority,
subject only to the specific requirements and prohibitions of this Servicing
Agreement, to do any and all things in connection with any REO Property as are
consistent with the manner in which the Master Servicer manages and operates
similar property owned by the Master Servicer or any of its Affiliates, all on
such terms and for such period as the Master Servicer deems to be in the best
interests of Noteholders. In connection therewith, the Master Servicer shall
deposit, or cause to be deposited in the clearing account in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Master Servicer's receipt thereof, and
shall thereafter deposit in the REO Account, in no event more than two Business
Days after the Master Servicer's receipt thereof, all revenues received by it
with respect to an REO Property and shall withdraw therefrom funds necessary for
the proper operation, management and maintenance of such REO Property including,
without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account with
respect to an REO Property are insufficient for the purposes set forth in
clauses (i) through (iii) above with respect to such REO Property, the Master
Servicer shall advance from its own funds such amount as is necessary for such
purposes if, but only if, the Master Servicer would make such advances if the
Master Servicer owned the REO Property and if in the Master Servicer's judgment,
the payment of such amounts will be recoverable from the rental or sale of the
REO Property.
The Master Servicer may contract with any Independent for the
operation and management of any REO Property, provided that:
31
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered
to require, that the Independent contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above and remit all related revenues
(net of such costs and expenses) to the Master Servicer as soon as
practicable, but in no event later than thirty days following the
receipt thereof by such Independent contractor;
(iii) none of the provisions of this Section 3.23(c) relating
to any such contract or to actions taken through any such Independent
contractor shall be deemed to relieve the Master Servicer of any of its
duties and obligations to the Indenture Trustee on behalf of the
Noteholders with respect to the operation and management of any such
REO Property; and
(iv) the Master Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of such
REO Property.
The Master Servicer shall be entitled to enter into any
agreement with any Independent contractor performing services for it related to
its duties and obligations hereunder for indemnification of the Master Servicer
by such Independent contractor, and nothing in this Servicing Agreement shall be
deemed to limit or modify such indemnification. The Master Servicer shall be
solely liable for all fees owed by it to any such Independent contractor,
irrespective of whether the Master Servicer's compensation pursuant to Section
3.18 is sufficient to pay such fees; provided, however, that to the extent that
any payments made by such Independent contractor would constitute Servicing
Advances if made by the Master Servicer, such amounts shall be reimbursable as
Servicing Advances made by the Master Servicer.
(d) In addition to the withdrawals permitted under Section
3.23(c), the Master Servicer may from time to time make withdrawals from the REO
Account for any REO Property: (i) to pay itself or any Sub-Servicer unpaid
Servicing Fees in respect of the related Mortgage Loan; and (ii) to reimburse
itself or any Sub-Servicer for unreimbursed Servicing Advances and P&I Advances
made in respect of such REO Property or the related Mortgage Loan. On the Master
Servicer Remittance Date, the Master Servicer shall withdraw from each REO
Account maintained by it and deposit into the Payment Account in accordance with
Section 3.10(d)(ii), for payment on the related Payment Date in accordance with
Section 3.05 of the Indenture, the income from the related REO Property received
during the prior calendar month, net of any withdrawals made pursuant to Section
3.23(c) or this Section 3.23(d).
(e) Subject to the time constraints set forth in Section
3.23(a), each REO Disposition shall be carried out by the Master Servicer at
such price and upon such terms and conditions as the Master Servicer shall deem
necessary or advisable, as shall be normal and usual in its Accepted Servicing
Practices.
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(f) The proceeds from the REO Disposition, net of any amount
required by law to be remitted to the Mortgagor under the related Mortgage Loan
and net of any payment or reimbursement to the Master Servicer or any
Sub-Servicer as provided above, shall be deposited in the Payment Account in
accordance with Section 3.10(d)(ii) on the Master Servicer Remittance Date in
the month following the receipt thereof for payment on the related Payment Date
in accordance with Section 3.05 of the Indenture. Any REO Disposition shall be
for cash only.
Section 3.24. OBLIGATIONS OF THE MASTER SERVICER IN RESPECT OF
PREPAYMENT INTEREST SHORTFALLS.
The Master Servicer shall deliver to the Indenture Trustee for
deposit into the Payment Account by 1:00 p.m. New York time on the Master
Servicer Remittance Date from its own funds an amount equal to the lesser of (i)
the aggregate of the Prepayment Interest Shortfalls for the related Payment Date
resulting from full or partial Principal Prepayments during the related
Prepayment Period and (ii) the aggregate Servicing Fee for the related
Prepayment Period. Any amounts paid by the Master Servicer pursuant to this
Section 3.24 shall not be reimbursed by the Trust Estate.
Section 3.25. OBLIGATIONS OF THE MASTER SERVICER IN RESPECT OF
MORTGAGE RATES AND MONTHLY PAYMENTS.
In the event that a shortfall in any collection on or
liability with respect to any Mortgage Loan results from or is attributable to
adjustments to Mortgage Rates, Monthly Payments or Stated Principal Balances
that were made by the Master Servicer in a manner not consistent with the terms
of the related Mortgage Note and this Servicing Agreement, the Master Servicer,
upon discovery or receipt of notice thereof, immediately shall deliver to the
Indenture Trustee for deposit in the Payment Account from its own funds the
amount of any such shortfall and shall indemnify and hold harmless the Trust
Estate, the Indenture Trustee, the Depositor and any successor master servicer
in respect of any such liability. Such indemnities shall survive the termination
or discharge of this Servicing Agreement. Notwithstanding the foregoing, this
Section 3.25 shall not limit the ability of the Master Servicer to seek recovery
of any such amounts from the related Mortgagor under the terms of the related
Mortgage Note, as permitted by law.
Section 3.26. ADVANCE FACILITY.
(a) Either (i) the Master Servicer or (ii) the Indenture
Trustee, on behalf of the Trust Estate, with the consent of the Master Servicer,
is hereby authorized to enter into a facility with any Person which provides
that such Person (an "Advancing Person") may fund P&I Advances and/or Servicing
Advances to the Trust Estate under this Servicing Agreement, although no such
facility shall reduce or otherwise affect the Master Servicer's obligation to
fund such P&I Advances and/or Servicing Advances. If the Master Servicer enters
into such an Advance Facility pursuant to this Section 3.26, upon reasonable
request of the Advancing Person, the Indenture Trustee shall execute a letter of
acknowledgment, confirming its receipt of notice of the existence of such
Advance Facility. If the Indenture Trustee enters into such an Advance Facility
pursuant to this Section 3.26, the Master Servicer shall also be a party to such
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Advance Facility. To the extent that an Advancing Person funds any P&I Advance
or any Servicing Advance and the Master Servicer provides the Indenture Trustee
with an Officers' Certificate that such Advancing Person is entitled to
reimbursement, such Advancing Person shall be entitled to receive reimbursement
pursuant to this Servicing Agreement for such amount to the extent provided in
Section 3.26(b). Such Officers' Certificate must specify the amount of the
reimbursement, the Section of this Servicing Agreement that permits the
applicable P&I Advance or Servicing Advance to be reimbursed and the section(s)
of the Advance Facility that entitle the Advancing Person to request
reimbursement from the Indenture Trustee, rather than the Master Servicer or
proof of an Event of Default under the Advance Facility. The Indenture Trustee
shall have no duty or liability with respect to any calculation of any
reimbursement to be paid to an Advancing Person and shall be entitled to rely
without independent investigation on the Advancing Person's notice provided
pursuant to this Section 3.26. An Advancing Person whose obligations hereunder
are limited to the funding of P&I Advances and/or Servicing Advances shall not
be required to meet the qualifications of the Master Servicer or a Sub-Servicer
pursuant to Section 3.02 hereof and will not be deemed to be a Sub-Servicer
under this Servicing Agreement.
(b) If an advancing facility is entered into, then the Master
Servicer shall not be permitted to reimburse itself therefor under Section
3.11(a)(ii), Section 3.11(a)(iii) and Section 3.11(a)(vi) prior to the
remittance to the Trust Estate, but instead the Master Servicer shall remit such
amounts in accordance with the documentation establishing the Advance Facility
to such Advancing Person or to a trustee, agent or custodian (an "Advance
Facility Trustee") designated by such Advancing Person. The Indenture Trustee is
hereby authorized to pay to the Advancing Person, reimbursements for P&I
Advances and Servicing Advances from the Payment Account to the same extent the
Master Servicer would have been permitted to reimburse itself for such P&I
Advances and/or Servicing Advances in accordance with 3.11(a)(ii), Section
3.11(a)(iii) and Section 3.11(a)(vi), as the case may be, had the Master
Servicer itself funded such P&I Advance or Servicing Advance. The Indenture
Trustee is hereby authorized to pay directly to the Advancing Person such
portion of the Servicing Fee as the parties to any advancing facility agree in
writing.
(c) All P&I Advances and Servicing Advances made pursuant to
the terms of this Servicing Agreement shall be deemed made and shall be
reimbursed on a "first in-first out" (FIFO) basis.
(d) Any amendment to this Section 3.26 or to any other
provision of this Servicing Agreement that may be necessary or appropriate to
effect the terms of an Advance Facility as described generally in this Section
3.26, including amendments to add provisions relating to a successor Master
Servicer, may be entered into by the Indenture Trustee and the Master Servicer
without the consent of any Noteholder, notwithstanding anything to the contrary
in this Servicing Agreement.
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ARTICLE IV
SERVICING CERTIFICATE
Section 4.01. REMITTANCE REPORTS AND P&I ADVANCES. (a) On the
Business Day following each Determination Date, the Master Servicer shall
deliver to the Indenture Trustee by telecopy (or by such other means as the
Master Servicer or the Indenture Trustee, as the case may be, may agree from
time to time) a Remittance Report with respect to the related Payment Date. On
the same date, the Master Servicer shall electronically transmit (in a format
acceptable to the Indenture Trustee), a data file containing the information set
forth in such Remittance Report with respect to the related Payment Date or if
electronic transmission is not available, the Master Servicer shall forward to
the Indenture Trustee by overnight mail a computer readable magnetic tape. Such
Remittance Report will include (i) the amount of P&I Advances to be made by the
Master Servicer in respect of the related Payment Date, the aggregate amount of
P&I Advances outstanding after giving effect to such P&I Advances, and the
aggregate amount of Nonrecoverable P&I Advances in respect of such Payment Date
and (ii) such other information with respect to the Mortgage Loans as the
Indenture Trustee may reasonably require to perform the calculations necessary
to make the payments contemplated by Section 3.05 of the Indenture and to
prepare the statements to Noteholders contemplated by Section 3.26 of the
Indenture. The Indenture Trustee shall not be responsible to recompute,
recalculate or verify any information provided to it by the Master Servicer.
(b) The amount of P&I Advances to be made by the Master
Servicer for any Payment Date shall equal, subject to Section 4.01(d), the sum
of, (i) the aggregate amount of Monthly Payments (with each interest portion
thereof net of the related Servicing Fee), due on the related Due Date in
respect of the Mortgage Loans, which Monthly Payments were delinquent as of the
close of business on the related Determination Date and (ii) with respect to
each REO Property, which REO Property was acquired during or prior to the
related Prepayment Period and as to which REO Property an REO Disposition did
not occur during the related Prepayment Period, an amount equal to the excess,
if any, of the REO Imputed Interest on such REO Property for the most recently
ended calendar month, over the net income from such REO Property transferred to
the Payment Account pursuant to Section 3.23 for payment on such Payment Date;
provided, however, that the Master Servicer shall not be required to make P&I
Advances with respect to Relief Act Interest Shortfalls or Prepayment Interest
Shortfalls in excess of their respective obligations under Section 3.24.
By 1:00 p.m. New York time on the Master Servicer Remittance
Date, the Master Servicer shall remit in immediately available funds to the
Indenture Trustee for deposit in the Payment Account an amount equal to the
aggregate amount of P&I Advances, if any, to be made in respect of the Mortgage
Loans and REO Properties for the related Payment Date either (i) from its own
funds or (ii) from the Collection Account, to the extent of funds held therein
for future payment (in which case it will cause to be made an appropriate entry
in the records of the Collection Account that amounts held for future payment
have been, as permitted by this Section 4.01, used by the Master Servicer in
discharge of any such P&I Advance) or (iii) in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made by the
Master Servicer with respect to the Mortgage Loans and REO Properties. Any
amounts held for future payment and so used shall be appropriately reflected in
the Master Servicer's records and
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replaced by the Master Servicer by deposit in the Collection Account on or
before any future Master Servicer Remittance Date to the extent that the
Available Payment Amount for the related Payment Date (determined without regard
to P&I Advances to be made on the Master Servicer Remittance Date) shall be less
than the total amount that would be paid to the Classes of Noteholders pursuant
to Section 3.26 of the Indenture on such Payment Date if such amounts held for
future payments had not been so used to make P&I Advances. The Indenture Trustee
will provide notice to the Master Servicer by telecopy by the close of business
on the Business Day prior to the Payment Date (so long as the Indenture Trustee
receives the required remittance from the Master Servicer) in the event that the
amount remitted by the Master Servicer to the Indenture Trustee on such date is
less than the amount required to be remitted by the Master Servicer as set forth
in the Remittance Report for the related Payment Date.
(c) The obligation of the Master Servicer to make such P&I
Advances is mandatory, notwithstanding any other provision of this Servicing
Agreement but subject to (d) below, and, with respect to any Mortgage Loan or
REO Property, shall continue until a Final Recovery Determination in connection
therewith or the removal thereof from the Trust Estate pursuant to any
applicable provision of this Servicing Agreement, except as otherwise provided
in this Section.
(d) Notwithstanding anything herein to the contrary, no P&I
Advance or Servicing Advance shall be required to be made hereunder by the
Master Servicer if such P&I Advance or Servicing Advance would, if made,
constitute a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance,
respectively. The determination by the Master Servicer that it has made a
Nonrecoverable P&I Advance or a Nonrecoverable Servicing Advance or that any
proposed P&I Advance or Servicing Advance, if made, would constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, respectively,
shall be evidenced by an Officers' Certificate of the Master Servicer delivered
to the Depositor and the Indenture Trustee.
Section 4.02. EXCHANGE ACT REPORTING.
(a) The Indenture Trustee and the Master Servicer shall
reasonably cooperate with the Issuer and the Depositor in connection with the
Trust's satisfying the reporting requirements under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). The Indenture Trustee shall prepare on
behalf of the Trust any Forms 8-K and 10-K customary for similar securities as
required by the Exchange Act and the Rules and Regulations of the Securities and
Exchange Commission thereunder, and the Depositor shall sign (or shall cause
another entity acceptable to the Securities and Exchange Commission to sign) and
the Indenture Trustee shall file (via the Securities and Exchange Commission's
Electronic Data Gathering and Retrieval System) such forms on behalf of the
Depositor or the Issuer (or such other entity). The Depositor and the Issuer
hereby grant to the Indenture Trustee a limited power of attorney to execute any
Form 8-K and file each such document on behalf of the Depositor and the Issuer.
Such power of attorney shall continue until the earlier of (i) receipt by the
Indenture Trustee from the Depositor and the Issuer of written termination of
such power of attorney and (ii) the termination of the Trust. Notwithstanding
anything herein to the contrary, the Depositor, and not the Indenture Trustee,
shall be responsible for executing each Form 10-K filed on behalf of the Trust.
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(b) Each Form 8-K shall be filed by the Indenture Trustee
within 15 days after each Payment Date, with a copy of the statement to the
Noteholders for such Payment Date as an exhibit thereto. Prior to March 30th of
each year (or such earlier date as may be required by the Exchange Act and the
Rules and Regulations of the Securities and Exchange Commission), the Indenture
Trustee shall file a Form 10-K, in substance as required by applicable law or
applicable Securities and Exchange Commission staff's interpretations. Such Form
10-K shall include as exhibits the Master Servicer's annual statement of
compliance described under Section 3.20 and the accountant's report described
under Section 3.21, in each case to the extent they have been timely delivered
to the Indenture Trustee. If they are not so timely delivered, the Indenture
Trustee shall file an amended Form 10-K including such documents as exhibits
reasonably promptly after they are delivered to the Indenture Trustee. The
Indenture Trustee shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to the
Indenture Trustee's inability or failure to obtain any information not resulting
from its own negligence or willful misconduct. The Form 10-K shall also include
a certification in the form attached hereto as Exhibit C-1 (the
"Certification"), which shall be signed by the senior officer of the Depositor
in charge of securitization.
(c) In addition, the Indenture Trustee shall sign a
certification (in the form attached hereto as Exhibit C-2) for the benefit of
the Depositor and its officers, directors and Affiliates regarding certain
aspects of the Certification (provided, however, that the Indenture Trustee
shall not undertake an analysis of the accountant's report attached as an
exhibit to the Form 10-K). The Indenture Trustee's certification shall be
delivered to the Depositor by no later than March 19th of each year (or if such
day is not a Business Day, the immediately preceding Business Day) and the
Depositor shall deliver the Certification to the Indenture Trustee for filing no
later than March 20th of each year (or if such day is not a Business Day, the
immediately preceding Business Day).
In addition, the Indenture Trustee shall indemnify and hold
harmless the Depositor and its officers, directors and Affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the Indenture Trustee's obligations
under this Section 4.02(c) or the Indenture Trustee's negligence, bad faith or
willful misconduct in connection therewith. The Depositor shall indemnify and
hold harmless the Indenture Trustee and its officers, directors and Affiliates
from and against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses arising out of or based upon a breach of the Depositor's obligations
under this Section 4.02 or the Depositor's negligence, bad faith or willful
misconduct in connection therewith. If the indemnification provided for herein
is unavailable or insufficient to hold harmless the Depositor or the Indenture
Trustee, as applicable, then the other party, in connection with a breach of its
respective obligations under this Section 4.02 with respect to the Depositor or
Section 4.02(c) with respect to the Indenture Trustee or its respective
negligence, bad faith or willful misconduct in connection therewith, agrees that
it shall contribute to the amount paid or payable by the other party as a result
of the losses, claims, damages or liabilities of the other party in such
proportion as is appropriate to reflect the relative fault and the relative
benefit of the Depositor on the one hand and the Indenture Trustee on the other.
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(d) Upon any filing with the Securities and Exchange
Commission, the Indenture Trustee shall promptly deliver to the Depositor a copy
of any executed report, statement or information.
(e) Prior to January 30 of the first year in which the
Indenture Trustee is able to do so under applicable law, the Indenture Trustee
shall file a Form 15 Suspension Notification with respect to the Trust.
(f) To the extent that, following the Closing Date, the
Depositor certifies to the Indenture Trustee that reports and certifications
differing from those required under this Section 4.06 comply with the reporting
requirements under the Exchange Act, the Indenture Trustee hereby agrees that it
will reasonably cooperate to amend the provisions of this Section 4.02 (in
accordance with Section 7.01) in order to comply with such amended reporting
requirements and such amendment of this Section 4.02. Any such amendment may
result in the reduction of the reports filed by the Depositor under the Exchange
Act. Notwithstanding the foregoing, the Indenture Trustee shall not be obligated
to enter into any amendment pursuant to this Section that adversely affects its
rights, protections, obligations and immunities under this Servicing Agreement.
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ARTICLE V
THE MASTER SERVICER
Section 5.01. LIABILITY OF THE MASTER SERVICER. The Master
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Master Servicer
herein.
Section 5.02. MERGER OR CONSOLIDATION OF OR ASSUMPTION OF THE
OBLIGATIONS OF THE MASTER SERVICER. Subject to the following paragraph, the
Master Servicer will keep in full effect its existence, rights and franchises as
a corporation under the laws of the jurisdiction of its incorporation. The
Master Servicer will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Servicing
Agreement, the Certificates or any of the Mortgage Loans and to perform its
respective duties under this Servicing Agreement.
The Master Servicer may be merged or consolidated with or into
any Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to the business of
the Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the Master Servicer
shall be qualified to service mortgage loans on behalf of Xxxxxx Xxx or Xxxxxxx
Mac; and PROVIDED, FURTHER, that each Rating Agency's rating of the Notes in
effect immediately prior to such merger or consolidation will not be qualified,
reduced, or withdrawn as a result thereof (as evidenced by a letter to such
effect from each Rating Agency).
Section 5.03. LIMITATION ON LIABILITY OF THE MASTER SERVICER
AND OTHERS. None of the Master Servicer or any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Issuer, the Depositor, the Owner Trustee, the Indenture Trustee or the
Noteholders for any action taken or for refraining from the taking of any action
in good faith pursuant to this Servicing Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Master Servicer or
any such person against any breach of warranties, representations or covenants
made herein, or against any specific liability imposed on the Master Servicer
pursuant hereto, or against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document of any kind which, PRIMA FACIE,
is properly executed and submitted by any Person respecting any matters arising
hereunder. The Master Servicer and any director, officer, employee or agent of
the Master Servicer shall be indemnified and held harmless by the Trust against
any loss, liability or expense incurred in connection with any legal action
relating to this Servicing Agreement or the Notes, other than any loss,
liability or expense relating to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Servicing Agreement) or any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
duties
39
hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
respective duties under this Servicing Agreement; provided, however, that the
Master Servicer may in its discretion undertake any such action which it may
deem necessary or desirable with respect to this Servicing Agreement and the
rights and duties of the parties hereto and the interests of the Noteholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom (except any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
hereunder) shall be expenses, costs and liabilities of the Trust, and the Master
Servicer shall be entitled to be reimbursed therefor from the Collection Account
as and to the extent provided in Section 3.11, any such right of reimbursement
being prior to the rights of the Noteholders to receive any amount in the
Collection Account.
Section 5.04. MASTER SERVICER NOT TO RESIGN. The Master
Servicer shall not resign from the obligations and duties hereby imposed on it
except upon determination that its duties hereunder are no longer permissible
under applicable law. Any such determination pursuant to the preceding sentence
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect obtained at the expense of the Master Servicer
and delivered to the Indenture Trustee. No resignation of the Master Servicer
shall become effective until the Indenture Trustee or a successor servicer shall
have assumed the Master Servicer's responsibilities, duties, liabilities (other
than those liabilities arising prior to the appointment of such successor) and
obligations under this Servicing Agreement.
Except as expressly provided herein, the Master Servicer shall
not assign or transfer any of its rights, benefits or privileges hereunder to
any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder. The foregoing prohibition on
assignment shall not prohibit the Master Servicer from designating a
Sub-Servicer as payee of any indemnification amount payable to the Master
Servicer hereunder; provided, however, that as provided in Section 3.06 hereof,
no Sub-Servicer shall be a third-party beneficiary hereunder and the parties
hereto shall not be required to recognize any Sub-Servicer as an indemnitee
under this Servicing Agreement. If, pursuant to any provision hereof, the duties
of the Master Servicer are transferred to a successor master servicer, the
entire amount of the Servicing Fee and other compensation payable to the Master
Servicer pursuant hereto shall thereafter be payable to such successor master
servicer.
Section 5.05. DELEGATION OF DUTIES. In the ordinary course of
business, the Master Servicer at any time may delegate any of its duties
hereunder to any Person, including any of its Affiliates, who agrees to conduct
such duties in accordance with standards comparable to those with which the
Master Servicer complies pursuant to Section 3.01. Such delegation shall not
relieve the Master Servicer of its liabilities and responsibilities with respect
to such duties and shall not constitute a resignation within the meaning of
Section 5.04.
Section 5.06. RIGHTS OF THE ISSUER IN RESPECT OF THE MASTER
SERVICER. The Master Servicer shall afford (and any Sub-Servicing Agreement
shall provide that each Sub-Servicer shall afford) the Issuer and the Indenture
Trustee, upon reasonable notice, during normal
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business hours, access to all records maintained by the Master Servicer (and any
such Sub-Servicer) in respect of the Master Servicer's rights and obligations
hereunder and access to officers of the Master Servicer (and those of any such
Sub-Servicer) responsible for such obligations. Upon request, the Master
Servicer shall furnish to the Issuer and the Indenture Trustee its (and any such
Sub-Servicer's) most recent financial statements and such other information
relating to the Master Servicer's capacity to perform its obligations under this
Servicing Agreement as it possesses (and that any such Sub-Servicer possesses).
To the extent such information is not otherwise available to the public, the
Issuer and the Indenture Trustee shall not disseminate any information obtained
pursuant to the preceding two sentences without the Master Servicer's written
consent, except as required pursuant to the Basic Documents or to the extent
that it is appropriate to do so (i) in working with legal counsel, auditors,
taxing authorities or other governmental agencies or (ii) pursuant to any law,
rule, regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Depositor, the Indenture
Trustee or the Trust Estate, and in any case, the Issuer or the Indenture
Trustee as the case may be, (iii) disclosure of any and all information that is
or becomes publicly known, or information obtained by the Indenture Trustee from
sources other than the Issuer or the Master Servicer, (iv) disclosure as
required pursuant to this Servicing Agreement or (v) disclosure of any and all
information (A) in any preliminary or final offering circular, registration
statement or contract or other document pertaining to the transactions
contemplated by the Basic Documents approved in advance by the Issuer or the
Master Servicer or (B) to any affiliate, independent or internal auditor, agent,
employee or attorney of the Indenture Trustee having a need to know the same,
provided that the Indenture Trustee advises such recipient of the confidential
nature of the information being disclosed, shall use its best efforts to assure
the confidentiality of any such disseminated non-public information. The Issuer
may, but is not obligated to, enforce the obligations of the Master Servicer
under this Servicing Agreement and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
under this Servicing Agreement or exercise the rights of the Master Servicer
under this Servicing Agreement; provided that the Master Servicer shall not be
relieved of any of its obligations under this Servicing Agreement by virtue of
such performance by the Issuer or its designee. The Issuer shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer and is not obligated to supervise the performance of the Master
Servicer under this Servicing Agreement or otherwise.
Section 5.07. INDEMNIFICATION. (a) The Master Servicer agrees
to indemnify the Indenture Trustee and the Owner Trustee for, and to hold the
Indenture Trustee and the Owner Trustee, as the case may be, harmless against,
any claim, tax, penalty, loss, liability or expense of any kind whatsoever,
incurred without negligence (gross negligence in the case of the Owner Trustee)
or willful misconduct on its part, arising out of, or in connection with, the
failure by the Master Servicer to perform its duties in compliance with this
Servicing Agreement, including the costs and expenses (including reasonable
legal fees and expenses) of defending itself against any claim in connection
with the exercise or performance of any of its powers or duties under any Basic
Document, provided that:
(i) with respect to any such claim, the Indenture Trustee or
Owner Trustee, as the case may be, shall have given the Master Servicer
written notice thereof as soon as practicable after a Responsible
Officer of the Indenture Trustee or Owner Trustee, as the case may be,
shall have actual knowledge thereof, it being understood that failure
to give
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such notice shall not relieve the Master Servicer of its
indemnification obligations hereunder;
(ii) while maintaining control over its own defense, the
Depositor, the Indenture Trustee or Owner Trustee, as the case may be,
shall cooperate and consult fully with the Master Servicer in preparing
such defense; and
(iii) notwithstanding anything in this Servicing Agreement to
the contrary, the Master Servicer shall not be liable for settlement of
any claim by the Indenture Trustee or the Owner Trustee, as the case
may be, entered into without the prior consent of the Master Servicer,
which consent shall not be unreasonably withheld.
To the extent that the Indenture Trustee is not indemnified by
the Master Servicer hereunder, it shall be indemnified by the Issuer pursuant to
Section 6.07 of the Indenture.
(b) The Master Servicer agrees to indemnify the Indemnified
Parties for, and to hold the Indemnified Parties, harmless against, any Expenses
which may at any time be imposed on, incurred by, or asserted against any
Indemnified Party in any way relating to or arising out of this Agreement, any
other Basic Document, the Trust Estate, the administration of the Trust Estate
or the action or inaction of such Indemnified Party, except to the extent such
Expense is (i) caused by such Indemnified Party's own willful misconduct, gross
negligence or bad faith or grossly negligent failure to act or (ii) incurred as
a result of the inaccuracy of any representation or warranty contained in
Section 6.03 of the Trust Agreement expressly made by the Owner Trustee, solely
with respect to the Owner Trustee.
(c) No termination of this Servicing Agreement or the
resignation or removal of the Owner Trustee or the Indenture Trustee shall
affect the obligations created by this Section 5.06 of the Master Servicer to
indemnify the Indenture Trustee and the Owner Trustee under the conditions and
to the extent set forth herein. This section shall survive the termination of
this Servicing Agreement and the resignation or removal of the Master Servicer.
Any amounts to be paid by the Master Servicer pursuant to this Subsection may
not be paid from the Trust Estate.
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ARTICLE VI
DEFAULT
Section 6.01. MASTER SERVICER EVENTS OF DEFAULT.
(a) "Master Servicer Event of Default," wherever used herein,
means any one of the following events:
(i) any failure by the Master Servicer to remit to the
Indenture Trustee for payment to the Noteholders any payment (other
than a P&I Advance required to be made from its own funds on any Master
Servicer Remittance Date pursuant to Section 4.03) required to be made
under the terms of the Notes and this Servicing Agreement which
continues unremedied for a period of one Business Day after the date
upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the Depositor
or the Indenture Trustee (in which case notice shall be provided by
telecopy), or to the Master Servicer, the Depositor and the Indenture
Trustee by the Holders of not less than 25% of the aggregate Note
Balances of the Notes; or
(ii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the covenants
or agreements on the part of the Master Servicer contained in this
Servicing Agreement, or the breach by the Master Servicer of any
representation and warranty contained in Section 2.01, which continues
unremedied for a period of 30 days (or if such failure or breach cannot
be remedied within 30 days, then such remedy shall have been commenced
within 30 days and diligently pursued thereafter; provided, however,
that in no event shall such failure or breach be allowed to exist for a
period of greater than 90 days) after the earlier of (i) the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the
Depositor, the Indenture Trustee or to the Master Servicer, the
Depositor and the Indenture Trustee by the Holders of Notes entitled to
at least 25% of the Voting Rights and (ii) actual knowledge of such
failure by a Servicing Officer of the Master Servicer; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 90 days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to it or of or relating to all or substantially all of
its property; or
43
(v) the Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vi) any failure by the Master Servicer of the Master Servicer
Termination Test; or
(vii) any failure of the Master Servicer to make any P&I
Advance on any Master Servicer Remittance Date required to be made from
its own funds pursuant to Section 4.01 which continues unremedied until
3:00 p.m. New York time on the Business Day immediately following the
Master Servicer Remittance Date.
If a Master Servicer Event of Default described in clauses (i)
through (vi) of this Section shall occur, then, and in each and every such case,
so long as a Master Servicer Event of Default shall not have been remedied, the
Depositor or the Indenture Trustee may, and at the written direction of the
Holders of Notes entitled to at least 51% of Voting Rights, the Indenture
Trustee shall, by notice in writing to the Master Servicer and the Depositor,
terminate all of the rights and obligations of the Master Servicer in its
capacity as Master Servicer under this Servicing Agreement, to the extent
permitted by law, and in and to the Mortgage Loans and the proceeds thereof. If
a Master Servicer Event of Default described in clause (vii) hereof shall occur,
the Indenture Trustee shall, by notice in writing to the Master Servicer and the
Depositor, terminate all of the rights and obligations of the Master Servicer in
its capacity as Master Servicer under this Servicing Agreement and in and to the
Mortgage Loans and the proceeds thereof and the Indenture Trustee or a successor
Master Servicer appointed in accordance with Section 6.02, shall immediately
make such P&I Advance and assume, pursuant to Section 6.02, the duties of a
successor Master Servicer. On or after the receipt by the Master Servicer of
such written notice, all authority and power of the Master Servicer under this
Servicing Agreement, whether with respect to the Notes (other than as a Holder
of any Note) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Indenture Trustee pursuant to and under this Section, and, without
limitation, the Indenture Trustee is hereby authorized and empowered, as
attorney-in-fact or otherwise, to execute and deliver, on behalf of and at the
expense of the Master Servicer, any and all documents and other instruments and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer agrees promptly (and in any event no later than
ten Business Days subsequent to such notice) to provide the Indenture Trustee
with all documents and records requested by it to enable it to assume the Master
Servicer's functions under this Servicing Agreement, and to cooperate with the
Indenture Trustee in effecting the termination of the Master Servicer's
responsibilities and rights under this Servicing Agreement, including, without
limitation, the transfer within one Business Day to the Indenture Trustee for
administration by it of all cash amounts which at the time shall be or should
have been credited by the Master Servicer to the Collection Account held by or
on behalf of the Master Servicer, the Payment Account or any REO Account or
Servicing Account held by or on behalf of the Master Servicer or thereafter be
received with respect to the Mortgage Loans or any REO Property serviced by the
Master Servicer (provided, however, that the Master Servicer shall continue to
be entitled to receive all amounts accrued or owing to it under this Servicing
Agreement on or prior
44
to the date of such termination, whether in respect of P&I Advances, Servicing
Advances or otherwise, and shall continue to be entitled to the benefits of
Section 5.03, notwithstanding any such termination, with respect to events
occurring prior to such termination). For purposes of this Section 6.01, the
Indenture Trustee shall not be deemed to have knowledge of a Master Servicer
Event of Default unless a Responsible Officer of the Indenture Trustee assigned
to and working in the Indenture Trustee's Corporate Trust Office has actual
knowledge thereof or unless written notice of any event which is in fact such a
Master Servicer Event of Default is received by a Responsible Officer of the
Indenture Trustee and such notice references the Notes, the Trust Estate or this
Servicing Agreement.
Section 6.02. INDENTURE TRUSTEE TO ACT; APPOINTMENT OF
SUCCESSOR.
(a)(1) On and after the time the Master Servicer receives a
notice of termination, the Indenture Trustee shall be the successor in all
respects to the Master Servicer in its capacity as Master Servicer under this
Servicing Agreement and the transactions set forth or provided for herein, and
all the responsibilities, duties and liabilities relating thereto and arising
thereafter shall be assumed by the Indenture Trustee (except for any
representations or warranties of the Master Servicer under this Servicing
Agreement, the responsibilities, duties and liabilities contained in Section
2.01 and the obligation to deposit amounts in respect of losses pursuant to
Section 3.12) by the terms and provisions hereof including, without limitation,
the Master Servicer's obligations to make P&I Advances pursuant to Section 4.01;
provided, however, that if the Indenture Trustee is prohibited by law or
regulation from obligating itself to make advances regarding delinquent mortgage
loans, then the Indenture Trustee shall not be obligated to make P&I Advances
pursuant to Section 4.01; and provided further, that any failure to perform such
duties or responsibilities caused by the Master Servicer's failure to provide
information required by Section 6.01 shall not be considered a default by the
Indenture Trustee as successor to the Master Servicer hereunder. As compensation
therefor, the Indenture Trustee shall be entitled to the Servicing Fee and all
funds relating to the Mortgage Loans to which the Master Servicer would have
been entitled if it had continued to act hereunder. Notwithstanding the above
and subject to Section 6.02(a)(2) below, the Indenture Trustee may, if it shall
be unwilling to so act, or shall, if it is unable to so act or if it is
prohibited by law from making advances regarding delinquent mortgage loans or if
the Holders of Notes entitled to at least 51% of the Voting Rights so request in
writing to the Indenture Trustee, promptly appoint or petition a court of
competent jurisdiction to appoint, an established mortgage loan servicing
institution acceptable to each Rating Agency and having a net worth of not less
than $15,000,000, as the successor to the Master Servicer under this Servicing
Agreement in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer under this Servicing Agreement.
The Indenture Trustee or other successor master servicer shall
be entitled to be reimbursed by the Master Servicer (or by the Trust Estate if
the Master Servicer is unable to fulfill its obligations hereunder or if the
Indenture Trustee is acting as successor Master Servicer) for all reasonable
out-of-pocket costs (such expenses of the Indenture Trustee to be documented by
the Indenture Trustee to the extent possible) associated with the transfer of
servicing from the predecessor master servicer, including without limitation,
any such costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Indenture Trustee to correct any errors
45
or insufficiencies in the servicing data or otherwise to enable the Indenture
Trustee to service the Mortgage Loans properly and effectively.
(2) No appointment of a successor to the Master Servicer under
this Servicing Agreement shall be effective until the assumption by the
successor of all of the Master Servicer's responsibilities, duties and
liabilities hereunder. In connection with such appointment and assumption
described herein, the Indenture Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the Master Servicer as such hereunder. The Depositor,
the Indenture Trustee and such successor shall take such action, consistent with
this Servicing Agreement, as shall be necessary to effectuate any such
succession. Pending appointment of a successor to the Master Servicer under this
Servicing Agreement, the Indenture Trustee shall act in such capacity as
hereinabove provided.
Section 6.03. NOTIFICATION TO NOTEHOLDERS.
(a) Upon any termination of the Master Servicer pursuant to
Section 6.01 above or any appointment of a successor to the Master Servicer
pursuant to Section 6.02 above, the Indenture Trustee shall give prompt written
notice thereof to the Owner Trustee, the Depositor and Noteholders at their
respective addresses appearing in the Note Register.
(b) Not later than the later of 60 days after the occurrence
of any event, which constitutes or which, with notice or lapse of time or both,
would constitute a Master Servicer Event of Default or five days after a
Responsible Officer of the Indenture Trustee becomes aware of the occurrence of
such an event, the Indenture Trustee shall transmit by mail to all Holders of
Notes notice of each such occurrence, unless such default or Master Servicer
Event of Default shall have been cured or waived.
Section 6.04. WAIVER OF MASTER SERVICER EVENTS OF DEFAULT.
The Holders representing at least 66% of the Voting Rights
evidenced by all Classes of Notes affected by any default or Master Servicer
Event of Default hereunder may waive such default or Master Servicer Event of
Default; provided, however, that a default or Master Servicer Event of Default
under clause (i) or (vii) of Section 6.01 may be waived only by all of the
Holders of the Notes. Upon any such waiver of a default or Master Servicer Event
of Default, such default or Master Servicer Event of Default shall cease to
exist and shall be deemed to have been remedied for every purpose hereunder. No
such waiver shall extend to any subsequent or other default or Master Servicer
Event of Default or impair any right consequent thereon except to the extent
expressly so waived.
46
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. AMENDMENT. This Servicing Agreement may be
amended from time to time by the parties hereto, provided that any amendment be
accompanied by a letter from the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to the Notes
or the rating then assigned to the Notes, and the consent of the Indenture
Trustee.
Section 7.02. GOVERNING LAW. THIS SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 7.03. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
when delivered to:
(a) in the case of the Master Servicer:
New Century Mortgage Corporation
00000 Xxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
(b) in the case of Rating Agencies:
Xxxxx'x Investors Service, Inc.
4th Floor
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Monitoring Unit
Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxx Xxxxxx - 41st Floor
New York, New York 10041
Attention: Asset Backed Surveillance Group
Fitch Ratings
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dominion Bond Rating Services, Inc.
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 0000
(x) in the case of the Owner Trustee, the Corporate Trust
Office:
47
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
(d) in the case of the Issuer, to New Century Home Equity Loan
Trust 2004-3:
c/o New Century Mortgage Securities, Inc.
00000 Xxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
(e) in the case of the Indenture Trustee:
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Trust Administration/New Century Home Equity Trust
Series 2004-3 (NC0403)
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid, at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this Servicing Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives such notice. Any notice or other document required to be delivered or
mailed by the Indenture Trustee to any Rating Agency shall be given on a
reasonable efforts basis and only as a matter of courtesy and accommodation and
the Indenture Trustee shall have no liability for failure to deliver such notice
or document to any Rating Agency.
Section 7.04. SEVERABILITY OF PROVISIONS. If any one or more
of the covenants, agreements, provisions or terms of this Servicing Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Servicing Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Servicing Agreement or of the Notes or the rights of the Noteholders thereof.
Section 7.05. THIRD-PARTY BENEFICIARIES. This Servicing
Agreement will inure to the benefit of and be binding upon the parties hereto,
the Noteholders, the Owner Trustee, the Indenture Trustee and their respective
successors and permitted assigns. Except as otherwise provided in this Servicing
Agreement, no other Person will have any right or obligation hereunder. The
Indenture Trustee shall have the right to exercise all rights of the Issuer
under this Servicing Agreement.
48
Section 7.06. COUNTERPARTS. This instrument may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 7.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 7.08. TERMINATION. The respective obligations and
responsibilities of the Master Servicer and the Issuer created hereby shall
terminate upon the satisfaction and discharge of the Indenture pursuant to
Section 4.10 thereof.
Section 7.09. NO PETITION. The Master Servicer, by entering
into this Servicing Agreement, hereby covenants and agrees that it will not at
any time institute against the Issuer, or join in any institution against the
Issuer, any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations of the Issuer. This
section shall survive the termination of this Servicing Agreement by one year.
Section 7.10. NO RECOURSE. The Master Servicer acknowledges
that no recourse may be had against the Issuer, except as may be expressly set
forth in this Servicing Agreement.
Section 7.11. INDENTURE TRUSTEE RIGHTS. The Indenture Trustee
shall be entitled to the same rights, protections, indemnities and immunities
afforded to it under the Indenture as if specifically set forth herein.
49
ARTICLE VIII
DUTIES OF THE MASTER
SERVICER AS ADMINISTRATOR
Section 8.01. ADMINISTRATIVE DUTIES.
(a) DUTIES WITH RESPECT TO THE INDENTURE. The Administrator
shall perform all its duties and the duties of the Issuer under the Indenture.
In addition, the Administrator shall consult with the Owner Trustee as the
Administrator deems appropriate regarding the duties of the Issuer under the
Indenture. The Administrator shall monitor the performance of the Issuer and
shall advise the Owner Trustee when action is necessary to comply with the
Issuer's duties under the Indenture. The Administrator shall prepare for
execution by the Issuer or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to the Indenture. In furtherance of the foregoing, the Administrator
shall take all necessary action that is the duty of the Issuer to take pursuant
to the Indenture.
(b) DUTIES WITH RESPECT TO THE ISSUER.
(i) In addition to the duties of the Administrator set forth
in this Servicing Agreement or any of the Basic Documents, the
Administrator shall perform such calculations and shall prepare for
execution by the Issuer or the Owner Trustee or shall cause the
preparation by other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be
the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to this Servicing Agreement or any of the Basic Documents or
under state and federal tax and securities laws (including, but not
limited to, UCC filings in applicable jurisdictions and annual
compliance certificates, if any), and at the request of the Owner
Trustee or the Indenture Trustee shall take all appropriate action that
it is the duty of the Issuer to take pursuant to this Servicing
Agreement or any of the Basic Documents. In accordance with the
directions of the Issuer or the Owner Trustee, the Administrator shall
administer, perform or supervise the performance of such other
activities in connection with the Notes (including the Basic Documents)
as are not covered by any of the foregoing provisions and as are
expressly requested by the Issuer, the Indenture Trustee or the Owner
Trustee.
(ii) Notwithstanding anything in this Servicing Agreement or
any of the Basic Documents to the contrary, the Administrator shall be
responsible for promptly notifying the Owner Trustee and Certificate
Paying Agent in the event that any withholding tax is imposed on the
Issuer's payments (or allocations of income) to an Owner (as defined in
the Trust Agreement) as contemplated in Section 5.03 of the Trust
Agreement. Any such notice shall be in writing and specify the amount
of any withholding tax required to be withheld by the Owner Trustee or
the Certificate Paying Agent pursuant to such provision.
(iii) In carrying out the foregoing duties or any of its other
obligations under this Servicing Agreement, the Administrator may enter
into transactions with or
50
otherwise deal with any of its Affiliates; PROVIDED, HOWEVER, that the
terms of any such transactions or dealings shall be in accordance with
any directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer in any
material respect than with terms made available to unrelated third
parties.
(c) TAX MATTERS. The Administrator shall prepare, on behalf of
the Owner Trustee, financial statements and such annual or other reports of the
Issuer as are necessary for the preparation by the Indenture Trustee of tax
returns and information reports as provided in Section 5.03 of the Trust
Agreement, including, without limitation, Form 1099.
(d) NON-MINISTERIAL MATTERS. With respect to matters that in
the reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action pursuant to this Article VIII unless
within a reasonable time before the taking of such action, the Administrator
shall have notified the Owner Trustee and the Indenture Trustee of the proposed
action and the Owner Trustee and, with respect to items (A), (B), (C) and (D)
below, the Indenture Trustee shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in connection
with the collection of the Mortgage Loans);
(C) the amendment, change or modification of this
Servicing Agreement or any of the Basic Documents to which the
Indenture Trustee or the Owner Trustee, as applicable, is a
party;
(D) the appointment of successor Certificate Paying
Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Servicers or the
consent to the assignment by the Certificate Registrar, Paying
Agent or Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(e) MASTER SERVICER SHALL ACT AS ADMINISTRATOR. By execution
of this Agreement, the Master Servicer agrees to be bound as Administrator and
shall perform the obligations of the Administrator as described herein.
Section 8.02. RECORDS. The Administrator shall maintain
appropriate books of account and records relating to services performed under
this Servicing Agreement, which books of account and records shall be accessible
for inspection by the Issuer, the Indenture Trustee and the Owner Trustee at any
time during normal business hours.
Section 8.03. ADDITIONAL INFORMATION TO BE FURNISHED. The
Administrator shall furnish to the Issuer, the Indenture Trustee and the Owner
Trustee from time to time such additional information regarding the Mortgage
Loans and the Notes as the Issuer, the Indenture Trustee or the Owner Trustee
shall reasonably request.
51
Section 8.04. NO RECOURSE TO OWNER TRUSTEE. It is expressly
understood and agreed by the parties hereto that (a) this Agreement is executed
and delivered by Wilmington Trust Company, not individually or personally, but
solely as Owner Trustee of New Century Home Equity Loan Trust 2004-3, in the
exercise of the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
for binding only the Issuer, (c) nothing herein contained shall be construed as
creating any liability of Wilmington Trust Company, individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Agreement or any other related documents.
52
IN WITNESS WHEREOF, the Master Servicer, the Issuer and the
Indenture Trustee have caused this Servicing Agreement to be duly executed by
their respective officers or representatives all as of the day and year first
above written.
NEW CENTURY MORTGAGE CORPORATION,
as Master Servicer
By:__________________________________________
Name:
Title:
NEW CENTURY HOME EQUITY LOAN TRUST
2004-3, as Issuer
By: Wilmington Trust
Company, not in its individual capacity, but
solely as Owner Trustee
By:__________________________________________
Name:
Title:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Indenture Trustee
By:__________________________________________
Name:
Title:
By:__________________________________________
Name:
Title:
EXHIBIT A
---------
MORTGAGE LOAN SCHEDULE
(Filed Manually)
(In accordance with Rule 202 of Regulation S-T, this Mortgage Loan Schedule is
being filed in paper pursuant to a continuing hardship exemption.)
A-1
EXHIBIT B
FORM OF REQUEST FOR RELEASE
(for Indenture Trustee)
LOAN INFORMATION
Name of Mortgagor: ______________________________
Master Servicer
Loan No.: ______________________________
INDENTURE TRUSTEE
Name: ______________________________
Address: ______________________________
______________________________
Trustee Mortgage
File No.: ______________________________
ISSUER
Name: NEW CENTURY HOME EQUITY LOAN TRUST 2004-3
Address: ______________________________
Certificates: Asset-Backed Notes, Series 2004-3.
The undersigned Master Servicer hereby acknowledges
that it has received from Deutsche Bank National Trust
Company, as Indenture Trustee for the Holders of Asset-Backed Notes, Series
2004-3, the documents referred to below (the "Documents"). All capitalized terms
not otherwise defined in this Request for Release shall have the meanings given
them in the Servicing Agreement, dated as of September 29, 2004, among the
Indenture Trustee, the Issuer and the Master Servicer (the "Servicing
Agreement").
( ) Promissory Note dated _______________, 20__, in the original principal
sum of $__________, made by _____________________, payable to, or
endorsed to the order of, the Indenture Trustee.
( ) Mortgage recorded on _________________________ as instrument no.
____________________ in the County Recorder's Office of the County of
_______________, State of __________________ in
book/reel/docket_________________ of official records at page/image
_____________.
( ) Deed of Trust recorded on ___________________ as instrument no.
________________ in the County Recorder's Office of the County of
_________________, State of ____________________ in book/reel/docket
_________________ of official records at page/image ______________.
B-1
( ) Assignment of Mortgage or Deed of Trust to the Indenture Trustee,
recorded on __________________ as instrument no. _________ in the
County Recorder's Office of the County of _______________, State of
_______________________ in book/reel/docket ____________ of official
records at page/image ____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) ___________________________________
( ) ___________________________________
( ) ___________________________________
( ) ___________________________________
B-2
The undersigned Master Servicer hereby acknowledges
and agrees as follows:
(1) The Master Servicer shall hold and retain
possession of the Documents in trust for the benefit of the
Indenture Trustee, solely for the purposes provided in the Servicing Agreement.
(2) The Master Servicer shall not cause or permit the
Documents to become subject to, or encumbered by,
any claim, liens, security interest, charges, writs of attachment or other
impositions nor shall the Master Servicer assert or seek to assert any claims or
rights of setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every
Document previously requested from the Mortgage File
to the Indenture Trustee when the need therefor no longer exists, unless the
Mortgage Loan relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Collection Account and except as expressly
provided in the Servicing Agreement.
(4) The Documents and any proceeds thereof, including
any proceeds of proceeds, coming into the possession
or control of the Master Servicer shall at all times be earmarked for the
account of the Indenture Trustee, and the Master Servicer shall keep the
Documents and any proceeds separate and distinct from all other property in the
Master Servicer's possession, custody or control.
Dated:
NEW CENTURY MORTGAGE CORPORATION
By:______________________________
Name:
Title:
B-3
EXHIBIT C-1
-----------
FORM OF CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
Certification
1. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of New
Century Home Equity Loan Trust 0000-0, Xxxxx Backed Notes, Series 2004-3;
2. Based on my knowledge, the information in these reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing
information required to be provided to the trustee by the servicer under the
pooling and servicing, or similar, agreement, for inclusion in these reports is
included in these reports;
4. Based on my knowledge and upon the annual compliance
statement included in the report and required to be delivered to the trustee in
accordance with the terms of the pooling and servicing, or similar, agreement,
and except as disclosed in the reports, the servicer has fulfilled its
obligations under the servicing agreement; and
5. The reports disclose all significant deficiencies relating
to the servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar procedure, as set forth in the pooling and servicing, or similar,
agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied
on information provided to me by the following unaffiliated parties: Deutsche
Bank National Trust Company.
NEW CENTURY MORTGAGE SECURITIES, INC.
By:____________________________________
Name:
Title:
Date:
C-1-1
EXHIBIT C-2
-----------
FORM OF CERTIFICATION TO BE
PROVIDED TO THE DEPOSITOR BY THE INDENTURE TRUSTEE
Re: New Century Home Equity Loan Trust 2004-3 (the "Trust" or the
"Issuer") Asset-Backed Notes, Series 2004-3
I, [identify the certifying individual], a [title] of Deutsche
Bank National Trust Company, as Indenture Trustee, hereby certify to New Century
Mortgage Securities, Inc. (the "Depositor"), and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10-K for the
fiscal year 2004, and all reports on Form 8-K containing distribution reports
filed in respect of periods included in the year covered by that annual report,
of the Depositor relating to the above-referenced trust;
2. Based on my knowledge, the information in these
distribution reports prepared by the Indenture Trustee, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last day of the period
covered by that annual report; and
3. Based on my knowledge, the distribution information
required to be provided by the Indenture Trustee under the Servicing Agreement
is included in these distribution reports.
Capitalized terms used but not defined herein have the
meanings ascribed to them in Appendix A to the Indenture, dated September 29,
2004 (the "Indenture"), between New Century Home Equity Loan Trust 2004-3, as
issuer, and Deutsche Bank National Trust Company, as indenture trustee.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Indenture Trustee
By:__________________________________
Name:
Title:
Date:
C-2-1
EXHIBIT D
---------
OFFICER'S CERTIFICATE
REGARDING ANNUAL STATEMENT OF COMPLIANCE
___________________ Trust, Series 200_-___
_______________ Asset-Backed Notes
I, _____________________, hereby certify that I am a duly
appointed __________________________ of _______________________________ (the
"Master Servicer"), and further certify as follows:
1. This certification is being made pursuant to the terms of
the Servicing Agreement, dated as of ____________, _____ (the "Servicing
Agreement"), among _____________________, as issuer, the Master Servicer, as
master servicer and ________________, as indenture trustee.
2. I have reviewed the activities of the Master Servicer
during the preceding year and the Master Servicer's performance under the
Servicing Agreement and to the best of my knowledge, based on such review, the
Master Servicer has fulfilled all of its obligations under the Servicing
Agreement throughout the year.
Capitalized terms not otherwise defined herein have the
meanings set forth in the Servicing Agreement.
Dated: _________________
D-1
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of _____________.
By: _____________________________
Name:
Title:
I, _________________________, a (an) __________________ of the
[Master Servicer], hereby certify that _________________ is a duly elected,
qualified, and acting _______________________ of the [Master Servicer] and that
the signature appearing above is his/her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of ______________.
By: _____________________________
Name:
Title:
