EXHIBIT 10.5
SUB-SERVICING AGREEMENT
-----------------------
SUB-SERVICING AGREEMENT (this "Agreement") dated as of the 1st day of
February, 1997 by and between New Century Mortgage Corporation, a California
corporation ("Master Servicer") and Advanta Mortgage Corp. USA, a Delaware
corporation ("Sub-Servicer").
BACKGROUND
----------
The Master Servicer has previously entered into a Pooling and
Servicing Agreement (the "Pooling Agreement") dated as of February 1, 1997 among
Salomon Brothers Mortgage Securities VII, Inc., as Depositor, New Century
Mortgage Corporation, as Master Servicer, and First Trust National Association,
as Trustee. Pursuant to the terms of the Pooling Agreement, the Master
Servicer, acting directly or through one or more Sub-Servicers, is to act as
master servicer to service and administer certain mortgage loans in accordance
with the Pooling Agreement.
Master Servicer desires to appoint Sub-Servicer to perform Master
Servicer's servicing obligations under the Pooling Agreement.
The Certificate Insurer and the Trustee are intended to be third party
beneficiaries of this Agreement and are hereby recognized by the parties hereto
to be third-party beneficiaries of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions. Capitalized terms not defined herein shall have the same
-----------
meanings as in the Pooling Agreement.
2. Appointment of Sub-Servicer. Master Servicer hereby appoints Sub-
---------------------------
Servicer to perform Master Servicer's servicing obligations under the Pooling
Agreement with respect to the Mortgage Loans, which appointment Sub-Servicer
hereby accepts. Sub-Servicer agrees to perform in accordance with the servicing
standards set forth in the Pooling Agreement and to perform all of the duties of
Master Servicer under the Pooling Agreement with respect to the Mortgage Loans
and to be bound by all of the obligations of the Master Servicer thereunder
except that the Sub-Servicer does not (i) assume any responsibility to indemnify
nor make any of the Seller's representations and warranties under the Mortgage
Loan Purchase Agreement or the Depositor's or the Seller's or the Master
Servicer's representations and warranties under including, without limitation,
(a) the Pooling Agreement, (b) the Insurance Agreement, and the Indemnification
Agreement dated as of February 27, 1997 by and among the Certificate Insurer,
the Depositor and the Master Servicer and (c) the Certificate Insurance Policy,
(ii) assume any obligation to pay a termination fee to any Sub-Servicer pursuant
to the Pooling Agreement, (iii)
assume any obligations to purchase Mortgage Loans pursuant to any agreement
including, without limitation, Sections 2.03 and 3.16 (c) of the Pooling
Agreement or under the Mortgage Loan Purchase Agreement nor assume any
obligation to record the Mortgage Loans or (iv) assume the obligations of the
Master Servicer set forth in Section 8.05 and Article XI of the Pooling
Agreement.
3. Payment of Collections. Sub-Servicer hereby agrees to deposit all
----------------------
collections with respect to Mortgage Loans, less the compensation provided for
in Paragraph 4, below, in accordance with Section 3.10 of the Pooling Agreement
and to make withdrawals from the Collection Account in accordance with Section
3.11 of the Pooling Agreement.
4. Compensation. As compensation for rendering the services specified
------------
herein, the Sub-Servicer shall be entitled to (i) retain from each monthly
payment a servicing fee in an amount equal to 0.45% per annum on the outstanding
Principal Balance of each Mortgage Loan serviced as of the first day of the
related Due Period (the "Sub-Servicing Fee"), (ii) all investment earnings on
the Collection Account and (iii) additional servicing compensation set forth in
Section 3.18 of the Pooling Agreement, including without limitation, release and
satisfaction fees (to the extent allowed by law), bad check charges, late
payment charges, assumption, modification and substitution fees, tax service
fees, fees for statement of account or pay off of the Mortgage Loan and any
other servicing-related fees to the extent not required to be deposited in
Collection Account, may be retained by the Sub-Servicer directly from
collections. So long as the Sub-Servicer receives investment earnings on the
Collection Account or the Distribution Account, respectively, any net investment
losses in funds held in the Collection Account or the Distribution Account shall
be for the account of the Sub-Servicer and promptly upon the realization of such
loss shall be contributed by the Sub-Servicer to the Collection Account or the
Distribution Account, respectively.
Each month the Sub-Servicer shall collect the Servicing Fee and the
items set forth above. The Servicing Fee shall be offset on a pro rata basis
due to Section 3.24 of the Pooling Agreement (the amount remaining following
such offset, as a dollar amount for any month, the "Net Servicing Fee"). The
Sub-Servicer shall remit to the Master Servicer on the 25th day of each month,
or if such day is not a business day the next business day thereafter, an
amount equal to (i) 5/50 of the Net Servicing Fee, if any, collected by the Sub-
Servicer, to an account specified in writing to the Sub-Servicer by an
Authorized Officer of Master Servicer.
Notwithstanding the above and the last sentence of the definition of
"Servicing Fee" contained in the Pooling Agreement, the Sub-Servicing Fee shall
not be reduced hereby and the Master Servicer shall make the Sub-Servicer whole
if the total Sub-Servicing Fee is not available. The Sub-Servicer is hereby
authorized to reduce the Net Servicing Fee in order to offset any such
reduction.
2
5. Representations, Warranties and Covenants of Sub-Servicer. Sub-
---------------------------------------------------------
Servicer hereby represents and warrants to Master Servicer as follows:
(a) The Sub-Servicer is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation and is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to enable it to
perform its obligations under the terms of this Agreement; the Sub-Servicer
has the full corporate power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery
and performance of this Agreement by the Sub-Servicer and the consummation
of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Sub-Servicer; and all requisite corporate action has been
taken by the Sub-Servicer to make this Agreement valid and binding upon the
Sub-Servicer in accordance with its terms;
(b) Neither the execution and delivery of this Agreement, nor the
fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Sub-Servicer's charter or by-laws or any
legal restriction or any agreement or instrument to which the Sub-Servicer
is now a party or by which it is bound, or constitute a default or result
in an acceleration under any of the foregoing, or result in the violation
of any law, rule, regulation, order, judgment or decree to which the Sub-
Servicer or its property is subject, or impair the ability of the Trustee
(or the Sub-Servicer as the agent of the Trustee) to realize on the
Mortgage Loans, or impair the value of the Mortgage Loans;
(c) The Sub-Servicer is an approved seller/servicer of conventional
residential mortgage loans for FNMA and FHLMC;
(d) There is no action, suit, proceeding, or investigation pending
or, to the knowledge of the Sub-Servicer, threatened against the Sub-
Servicer which, either in any one instance or in the aggregate, may result
in any material adverse change in the business, operations, financial
condition, properties or assets of the Sub-Servicer, or in any material
impairment of the right or ability of the Sub-Servicer to carry on its
business substantially as now conducted, or of any action taken or to be
taken in connection with the obligations of the Sub-Servicer contemplated
herein, or which would materially impair the ability of the Sub-Servicer to
perform under the terms of this Agreement; and
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Sub-Servicer of or compliance by the Sub-Servicer with
this Agreement or the Mortgage Loans or the consummation of the
transactions contemplated by this Agreement, or if required, such approval
has been obtained prior to the Closing Date;
3
It is understood and agreed that the representations and warranties
set forth in this paragraph 5 shall survive delivery of the Mortgage Loans to
the Trustee.
Upon discovery by any of the Master Servicer, the Sub-Servicer, the
Certificate Insurer or the Trustee of a breach of any of the representations and
warranties set forth in this Paragraph 5 which materially and adversely affects
the interests of the Certificateholders or of the Certificate Insurer, the party
discovering such breach shall give prompt written notice to the other parties.
Within 60 days of its discovery or its receipt of notice of breach, the Sub-
Servicer shall cure such breach in all material respects and, upon the Sub-
Servicer's continued failure to cure such breach, may thereafter be removed by
the Master Servicer or the Certificate Insurer pursuant to paragraph 6 hereof;
provided, however, that if the Sub-Servicer can demonstrate to the reasonable
-------- -------
satisfaction of the Master Servicer and the Certificate Insurer that it is
diligently pursuing remedial action, then the cure period may be extended with
the written approval of the Master Servicer and the Certificate Insurer, which
written approval shall not be unreasonably withheld.
6. Removal of Sub-Servicer; Resignation of Sub-Servicer. (a) The Master
----------------------------------------------------
Servicer with the consent of the Certificate Insurer, or the Certificate Insurer
may remove the Sub-Servicer upon the occurrence of any of the following events
(each, a "Sub-Servicer Event of Default"):
(i) any failure by the Sub-Servicer to remit to the Trustee for
distribution to the Certificateholders 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 of the Pooling Agreement) required
to be made under the terms of the Certificates and this 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 Sub-Servicer by the Depositor, the Master
Servicer, the Certificate Insurer or the Trustee (in which case notice
shall be provided by telecopy) , or to the Sub-Servicer, the Master
Servicer, the Depositor, the Certificate Insurer and the Trustee by the
Holders of Certificates entitled to at least 25% of the Voting Rights; or
(ii) any failure on the part of the Sub-Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on
the part of the Sub-Servicer contained in this Agreement, or the breach by
the Sub-Servicer of any representation and warranty contained in paragraph
5 hereof, which continues unremedied for a period of 30 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 Sub-Servicer by the
Master Servicer, the Depositor, the Certificate Insurer or the Trustee, or
to the Sub-Servicer, the Master Servicer, the Depositor, the Certificate
Insurer and the Trustee by the Holders of Certificates entitled to at least
25% of the Voting Rights and
4
(ii) actual knowledge of such failure by a Servicing Officer of the Sub-
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 Sub-Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 90
days; or
(iv) the Sub-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
(v) the Sub-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) there shall have occurred, and the Certificate Insurer shall
have notified the Sub-Servicer, the master Servicer and the Trustee of the
occurrence of an event of default pursuant to Section 5.01(f) of the
Insurance Agreement; or
(vii) any failure of the Sub-Servicer to make any P&I Advance on any
Master Servicer Remittance Date required to be made from its own funds
pursuant to Section 4.03 of the Pooling Agreement which continues
unremedied until 3:00 p.m. New York time on the Business Day following the
Master Servicer Remittance Date.
If a Sub-Servicer Event of Default described in clauses (i) through (vii) of
this Section shall occur, then, and in each and every such case, so long as such
Sub-Servicer Event of Default shall not have been remedied, the Master Servicer
or the Certificate Insurer may, by notice in writing to the Sub-Servicer
terminate all of the rights and obligations of the Sub-Servicer in its capacity
of Sub-Servicer under this Agreement, to the extent permitted by law, and in and
to the Mortgage Loans and the proceeds thereof. On or after the receipt by the
Sub-Servicer of such written notice, all authority and power of the Sub-Servicer
under this Agreement, whether with respect to the Certificates (other than as a
Holder of any Certificates) or the Mortgage Loans shall pass to and be vested in
the Master Servicer pursuant to and under this Section, and, without limitation,
the Master Servicer is hereby authorized and empowered, as attorney-in-fact or
otherwise, to execute and deliver, on behalf of and at the expense of the Sub-
Servicer, any and all documents and other instruments and to do or accomplish
all other acts or things necessary of 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 Sub-
Servicer agrees promptly (and in any event no later than ten Business Days
subsequent to
5
such notice) to provide the Master Servicer with all documents and records
requested by it to enable it to assume the Sub-Servicer's functions under this
Agreement, and to cooperate with the Master Servicer in effecting the
termination of the Sub-Servicer's responsibilities and rights under this
Agreement, including, without limitation, the transfer within one Business Day
to the Master Servicer for administration by it of all cash amounts which at the
time shall be or should have been credited by the Sub-Servicer to the Collection
Account held by or on behalf of the Sub-Servicer, or any REO Account or
Servicing Account held by or on behalf of the Sub-Servicer or thereafter be
received with respect to the Mortgage Loans or any REO Property serviced by the
Sub-Servicer (provided, however, that the Sub-Servicer shall continue to be
entitled to receive all amounts accrued or owing to it under this Agreement on
or prior 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 paragraph 8 notwithstanding any such termination).
(b) The Sub-Servicer shall not resign from the obligations and duties
hereby imposed on it, except by mutual consent of the Sub-Servicer and the
Master Servicer, with the consent of the Certificate Insurer, or upon
determination that the Sub-Servicer duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable law
with any other activities carried on by it, the other activities of the Sub-
Servicer so causing such a conflict being of a type and nature carried on by the
Sub-Servicer at the date of this Agreement. Any such determination permitting
the resignation of the Sub-Servicer shall be evidenced by an opinion of counsel
to such effect which shall be delivered to the Master Servicer and the
Certificate Insurer.
(c) Any Collections received by the Sub-Servicer after removal or
resignation shall be endorsed by it to the Master Servicer and remitted directly
and promptly to the Master Servicer.
(d) Upon removal or resignation of the Sub-Servicer, the Master
Servicer, with the consent of the Certificate Insurer, shall select a successor
Sub-Servicer.
(e) A successor Sub-Servicer under this Agreement shall take such
action, consistent with this Agreement, as shall be reasonably necessary to
effectuate any such succession. The Sub-Servicer agrees to cooperate with the
Successor Servicer in effecting the termination of the Sub-Servicer, s servicing
responsibilities and rights hereunder and shall promptly provide such Successor
Servicer all documents and records reasonably requested by it to enable it to
assume the Sub-Servicer's functions hereunder and shall promptly also transfer
to such Successor Servicer all amounts which should have been deposited in the
Collection Account by the Sub-Servicer or which are thereafter received with
respect to the Mortgage Loans. The successor Sub-Servicer shall not be held
liable by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
Sub-Servicer to deliver, or any delay in delivering, cash, documents or records
to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the Sub-Servicer.
6
(f) Any successor Sub-Servicer shall assume all rights and
obligations of the predecessor Sub-Servicer under this Agreement, except those
arising before succession.
(g) If an Event of a Default of the Master Servicer occurs under the
Pooling Agreement, and (i) such Event of Default is not the result of a Sub-
Servicer Event of Default, and (ii) as a result of such Event of Default the
Master Servicer is terminated, the Sub-Servicer may, if it so chooses and with
the consent of the Certificate Insurer, become the successor Master Servicer.
(h) In the event the Master Servicer is terminated pursuant to the
terms of the Pooling Agreement and (i) the Sub-Servicer shall have elected not
to become the successor Master Servicer or (ii) if the Certificate Insurer
withholds its consent and the Sub-Servicer is not approved as the successor
Master Servicer, the Trustee or the Certificate Insurer may terminate this
Agreement without a fee.
7. No Assignment. Neither the Master Servicer or the Sub-Servicer
-------------
may assign or transfer its rights or obligations under this Agreement without
prior written consent of the parties hereto; provided, however, this shall not
prevent the Sub-Servicer in its sole judgment from delegating specific servicing
obligations hereunder to, including without limitation, computer bureaus, credit
bureaus, real estate tax service companies, real estate brokers, or agents,
attorneys, trustees and any other determined by the Sub-Servicer as long as the
Sub-Servicer remains responsible for any action taken or not taken by such
companies, agents, representatives throughout the term of this Agreement.
8. Limitation on Liability of the Sub-Servicer and Others. (a) The
------------------------------------------------------
Sub-Servicer and any director, officer, employee or agent of the Sub-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
thereunder. The Sub-Servicer and any director, officer, employee or agent of
the Sub-Servicer shall be indemnified and held harmless by the Master Servicer
against any loss, liability or expense incurred in connection with any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) or any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder.
(b) To the extent that the Sub-Servicer incurs any loss, liability or
expense arising out of or in connection with this Agreement, the Master Servicer
hereby assigns to the Sub-Servicer the Master Servicer's right to
indemnification from the Trust Fund pursuant to Section 6.03 of the Pooling
Agreement; provided, however, that in the event the Master Servicer seeks
indemnification pursuant to Section 6.03 of the Pooling Agreement for itself
from the Trust Fund, the Sub-Servicer shall be indemnified pursuant to clause
(a) hereof.
7
(c) The Sub-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 Agreement and, in its opinion, does not involve it
in any expense or liability; provided, however, that the Sub-Servicer may in its
discretion undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. In such event, pursuant
to clause (b) above, 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 gross 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 either the Master
Servicer or the Trust Fund. In the case of reimbursement from the Trust Fund,
the Sub-Servicer shall be entitled to be reimbursed therefor from the Collection
Account as and to the extent provided in Section 3.11 of the Pooling Agreement,
any such right of reimbursement being prior to the rights of the
Certificateholders to receive any amount in the Collection Account.
9. Amendment to Sub-Servicing Agreement and the Pooling Agreement.
--------------------------------------------------------------
(a) This Agreement may be amended from time to time by written
agreement signed by the Master Servicer and the Sub-Servicer with the consent of
the Certificate Insurer which consent shall not be unreasonably withheld or
delayed.
(b) The Master Servicer hereby agrees that it shall not amend the
Pooling Agreement without the prior written consent of the Sub-Servicer, which
consent shall not be unreasonably withheld or delayed.
10. Annual Statement as to Compliance. The Sub-Servicer, at its own
---------------------------------
expense, will deliver to the Master Servicer, the Trustee and the Certificate
Insurer, on or before 90 days following the end of the fiscal year of the Sub-
Servicer, commencing in 1998, an Officer's Certificate stating, as to each
signer thereof, that (i) a review of the activities of the Sub-Servicer during
such preceding calendar year and of performance under this Agreement has been
made under such officer's supervision, and (ii) to the best of such officer's
knowledge, based on such review, the Sub-Servicer has fulfilled all its
obligations under this Agreement for such year, or, if there has been a default
in the fulfillment of all such obligations, specifying each such default known
to such officer and the nature and status thereof including the steps being
taken by the Sub-Servicer to remedy such default.
11. Annual Independent Certified Public Accountant's Reports. Not
--------------------------------------------------------
later than 90 days following the end of each fiscal year of the Sub-Servicer,
commencing in 1998, the Sub-Servicer, at its own expense, shall cause to be
delivered to the Master Servicer, the Trustee and the Certificate Insurer a
report stating that (i) it has obtained a letter of representation regarding
certain matters from the management of the Sub-Servicer which includes an
assertion that the Sub-Servicer has complied with certain minimum residential
mortgage loan servicing standards,
8
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
fiscal 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.
12. Access to Certain Documentation and Information Regarding the Mortgage
----------------------------------------------------------------------
Loans. The Sub-Servicer shall provide to the Office of Thrift Supervision, the
-----
FDIC, an any other federal or state banking or insurance regulatory authority
that may exercise authority over any Certificateholder, access to the
documentation 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 Sub-
Servicer designated by it. In addition, access to the documentation regarding
the Mortgage Loans will be provided to any Certificateholder, the Certificate
Insurer, the Trustee and to any Person identified to the Sub-Servicer as a
prospective transferee of a Certificate, upon reasonable request during normal
business hours at the offices of the Sub-Servicer designated by it at the
expense of the Person requesting such access.
13. Miscellaneous.
-------------
(a) Indulgences, Etc. Neither the failure nor any delay on the part
----------------
of either party to exercise any right, remedy, power or privilege ("Right")
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any Right preclude any other or further exercise of the same
or of any other Right, nor shall any waiver of any Right with respect to any
occurrence be construed as a waiver of such Right with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver.
(b) Controlling Law. This Agreement and all questions relating to its
---------------
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the State of New York,
notwithstanding any conflict-of-laws doctrines of the State of New York or other
jurisdictions to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
(c) Waiver of Jury Trial. Each of the parties hereby irrevocably
--------------------
waives all right to a trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement, any other transaction document or
any instrument or document delivered hereunder or thereunder.
9
(d) Notices. All notices, requests, demands and other communications
-------
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received only when delivered
(personally, by courier service such as Federal Express, or by other messenger)
against receipt or three days after when deposited in the United States mails,
first class postage prepaid, addressed as set forth below:
(i) If to Master Servicer:
New Century Mortgage Corporation
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(ii) If to Sub-Servicer:
Advanta Mortgage Corp. USA
00000 Xxxx Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Senior Vice President Loan Servicing
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
In addition, notice by mail shall be by air mail if posted outside of
the continental United States. Any party may alter the address to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this paragraph for the giving of
notice.
(e) Binding Nature of Agreement. This Agreement shall be binding upon
---------------------------
and inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
(f) Provisions Separable. The provisions of this Agreement are
--------------------
independent of and separate from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
10
(g) Counterparts. For the purpose of facilitating the execution of
------------
this Agreement and or other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed to
be an original, and together shall constitute and be one and the same
instrument.
(h) Entire Agreement. This Agreement contains the entire
----------------
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
Agreement in writing.
(i) Paragraph Headings. The paragraph headings in this Agreement are
------------------
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
(j) Advice from Counsel. The parties understand that this Agreement
-------------------
is a legally binding agreement that may affect such party's rights. Each party
represents to the other that it has received legal advice from counsel of its
choice regarding meaning and legal significance of this Agreement and that it is
satisfied with its legal counsel and the advice received from it.
(k) Judicial Interpretation. Should any provision of this Agreement
-----------------------
or any of the other transaction documents require judicial interpretation, it is
agreed that a court interpreting or construing the same shall not apply a
presumption that the terms hereof shall be more strictly construed against any
Person by reason of the rule of construction that a document is to be construed
more strictly against the Person who itself or through its agent prepared the
same, it being agreed that all Parties have participated in the preparation of
this Agreement.
(l) With respect to each Distribution Date, the Sub-Servicer shall provide
to the Master Servicer (i) a copy of the Remittance Report and (ii) a copy of
the computer readable magnetic tape containing the information set forth in such
Remittance Report, each as required to be provided to the Trustee pursuant to
Section 4.03 (a) of the Pooling Agreement.
11
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their proper and duly authorized officers as of the
date first above written.
NEW CENTURY MORTGAGE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman
ADVANTA MORTGAGE CORP. USA
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
ACKNOWLEDGED
FIRST TRUST NATIONAL ASSOCIATION
By: /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
ACKNOWLEDGED
FINANCIAL SECURITY ASSURANCE INC.
By: /s/ Xxxxx Xxx
-----------------------------------------
Name: Xxxxx Xxx
Title: Director
12
_________________, 199_
[CERTIFICATE INSURER
ADDRESS]
Re: New Century Asset-Backed Floating Rate Certificates, Series 1997-NC1
--------------------------------------------------------------------
Ladies and Gentlemen:
Please be advised that in connection with the above-referenced
transaction, (the "Master Servicer") has entered into a Sub-Servicing Agreement
with Advanta Mortgage Corp. USA ("Advanta"), pursuant to which Advanta will
service the mortgage loans owned by New Century Asset-Backed Floating Rate
Certificates, Series 1997-NC1 (the "Trust"). A copy of the Sub-Servicing
Agreement is attached.
Very truly yours,
NEW CENTURY MORTGAGE CORPORATION
By: _____________________________________
Name:
Title:
February 27, 1997
Advanta Mortgage Corp. USA
00000 Xxxx Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Pooling and Servicing Agreement, dated as
of February 1, 1997 (the "Pooling and Servicing Agreement"), among Salomon
Brothers Mortgage Securities VII, Inc. as depositor (the "Depositor"), New
Century Mortgage Corporation as master servicer (the "Master Servicer") and
First Trust National Association as trustee (the "Trustee"), and (ii) the
Subservicing Agreement, dated as of February 1, 1997 (the "Subservicing
Agreement"), between the Master Servicer and Advanta Mortgage Corp. USA (the
"Sub-Servicer"). Capitalized terms used herein but not defined herein have the
meanings ascribed to them in the Pooling and Servicing Agreement.
On and after such time as the Trustee receives the resignation of, or
notice of the removal of, the Master Servicer from its rights and obligation
under the Pooling and Servicing Agreement, and with respect to resignation
pursuant to Section 6.04, after receipt by the Trustee and the Certificate
Insurer of the Opinion of Counsel required pursuant to Section 6.04, Advanta
Mortgage Corp. USA if it so elects, and if the Certificate Insurer so consents,
shall be appointed the successor Master Servicer and shall assume all of the
rights and obligations of the Master Servicer which accrue following such
transfer of servicing. The Master Servicer shall, upon request of but at the
expense of the Master Servicer, deliver to Advanta Mortgage Corp. USA all
documents and records relating to the Mortgage Loans and an accounting of
amounts collected and held by the Master Servicer and otherwise use its best
efforts to effect the orderly and efficient transfer of servicing rights and
obligations to the assuming party.
FINANCIAL SECURITY
ASSURANCE INC.
By: /s/ Xxxxx Xxx
--------------------------------------------
Name: Xxxxx Xxx
Title: Director
FIRST TRUST NATIONAL
ASSOCIATION
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
NEW CENTURY MORTGAGE
CORPORATION
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman
AGREED AND ACCEPTED
ADVANTA MORTGAGE CORP. USA
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
2
