Exhibit 4.5
MASTER SERVICING AGREEMENT
between
[____________],
Master Servicer
and
SRMSC OWNER TRUST 20 [ ]-[ ]
Issuer
ASSET BACKED NOTES,
SERIES [ ]-[ ]
[ ], [ ]
TABLE OF CONTENTS
Page
----
Section 1. Definitions...................................................1
Section 2. Duties and Responsibilities of the Master Servicer............2
Section 3. Compensation..................................................2
Section 4. Standard Terms................................................2
Section 5. Distributions.................................................3
Section 6. Term..........................................................3
Section 7. Note Insurer..................................................3
Section 8. Representations and Warranties................................3
Section 9. Notices.......................................................3
Section 10. Binding Nature of Agreement; Assignment.......................4
Section 11. Entire Agreement..............................................4
Section 12. Controlling Law...............................................4
Section 13. Indulgences Not Waivers.......................................4
Section 14. Titles Not to Affect Interpretation...........................5
Section 15. Provisions Separable..........................................5
Schedule I. Mortgage Collateral
Schedule II. Servicing Agreement(s)
This Master Servicing Agreement, entered into as of this 1st day of [
], [ ], between SRMSC Owner Trust 20[ ]-[ ], a Delaware business trust (the
"Issuer") and [__________], a [______] corporation (the "Master Servicer"),
recites and provides as follows:
RECITALS
The Issuer has entered into an indenture, dated as of [ ] [ ], [ ](the
"Indenture"), between the Issuer and [Trustee], as trustee (the "Trustee"),
under which the Issuer will issue its Asset Backed Notes, Series [ ]-[ ] (the
"Notes"). The Notes are to be secured by Mortgage Loans identified on Schedule I
hereto that have been transferred to the Issuer by Southpoint Residential
Mortgage Securities Corporation, a Tennessee corporation (the "Depositor")
pursuant to a contribution agreement dated [ ], [ ] (the "Contribution
Agreement"). The Depositor acquired to Mortgage Loans from [__________], a
[___________] corporation (in such capacity, the "Seller") pursuant to an Asset
Sales Agreement between the Issuer and the Seller, dated [ ], [ ], (the "Sales
Agreement"). Collection of the scheduled principal and interest payments on the
Mortgage Loans, plus amounts representing prepayments and liquidation proceeds,
will be paid to the Trustee on behalf of the Issuer for the payment of the
principal and interest on the Notes.
The Seller or an affiliate has entered into [a] Servicing Agreement[s]
(the "Servicing Agreement[s]"), with [a][various[ servicer[s] acceptable to the
Master Servicer (the "Servicer[s]") and the Seller has assigned its interests in
the Servicing Agreement[s] to the Depositor who has assigned it to the Issuer.
Under the terms of [the][its] Servicing Agreement, [each] Servicer has agreed to
service the mortgage loans in accordance with the terms of the Servicing
Agreement. To provide for the administration and servicing of the Mortgage Loans
that secure payment of the Notes, including the orderly and timely collection of
scheduled payments of principal and interest and the advance of such payments by
the Servicer to the extent recoverable from Liquidation Proceeds, Insurance
Proceeds, and subsequent payments by the Borrower, the Issuer desires to retain
the Master Servicer to act as a "master servicer" for all Mortgage Loans and to
manage and supervise the administration and servicing of the Mortgage Loans by
the Servicer(s) for the benefit of the Issuer, the Trustee, [the Note Insurer]
and the Noteholders.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties hereinafter set forth and for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Issuer and the Master Servicer agree as follows:
Section 1. Definitions.
---------- ------------
The following terms shall have the meanings ascribed to them below,
unless the context or use otherwise clearly indicates another or different
meaning and intent. Moreover, such meanings are equally applicable to the
singular and the plural forms of such terms, as the context may require.
Capitalized terms not otherwise defined in this Agreement shall have the
meanings ascribed to them in the Standard Terms to Master Servicing Agreement,
or the Indenture.
"Agreement": This Master Servicing Agreement, as amended from time to
time.
"Cut-Off Date": [ ] 1, [ ].
"Master Servicer Remittance Date": The Business Day immediately
preceding each Payment Date for the Notes.
"Rating Agencies": [Those nationally recognized statistical rating
organizations that are rating the Notes at the request of the Issuer.]
"Servicer[s]": [Collectively, each Servicer that is a party to a
Servicing Agreement.]
"Servicing Agreement[s]": [Each of] the Servicing Agreement[s] listed
on Schedule II hereto.
"Standard Terms": The Standard Terms to Master Servicing Agreement,
August 1, 2001, Edition.
Section 2. Duties and Responsibilities of the Master Servicer.
---------- ---------------------------------------------------
The Master Servicer hereby agrees to supervise, administer, monitor and
oversee the servicing of the Mortgage Loans by the Servicer[s], for and on
behalf of the Trustee, the Issuer, [the Note Insurer] and the Noteholders, in
accordance with the provisions of this Agreement (including those provisions
contained in the Standard Terms, as amended or supplemented from time to time).
Section 3. Compensation.
---------- -------------
In consideration of the services rendered under this Master Servicing
Agreement, the Master Servicer shall be entitled to the compensation provided
for in Section 7.01 of the Standard Terms. For the purposes of computing
compensation under such section the "Master Servicing Fee Percentage" shall be
0.[ ]%. The Master Servicer also shall be entitled to earnings on the funds
provided by it hereunder.
Section 4. Standard Terms.
---------- ---------------
The Master Servicer acknowledges that the Standard Terms, a copy of
which has been received by the Master Servicer, prescribes additional terms and
conditions under which the Master Servicer is to supervise the servicing of the
Mortgage Loans. The Master Servicer agrees to perform and observe the duties,
responsibilities and obligations that are to be performed and observed by the
Master Servicer under the Standard Terms as such Standard Terms may be amended
and supplemented from time to time, and that the Standard Terms, as amended or
supplemented, are and shall be a part of this Agreement to the same extent as if
set forth herein in full. The Master Servicer acknowledges that it has received
a copy of the edition of the Standard Terms that is in effect as of the date of
this Agreement and warrants that it has read and is fully familiar with the
terms thereof.
-2-
Section 5. Distributions.
---------- --------------
[To be provided as/if necessary]
Section 6. Term.
---------- -----
[To be provided as/if necessary]
Section 7. Note Insurer.
---------- -------------
[To be provided as/if necessary]
Section 8. Representations and Warranties.
---------- -------------------------------
In addition to the representations and warranties made and given in the
Standard Terms, the Master Servicer represents and warrants to the Issuer, the
Trustee and the Underwriter for the Notes, and at all times during the term of
this Agreement shall be deemed to represent and warrant, that the Master
Servicer has examined the Servicing Agreement[s], that the Master Servicer is
familiar with the terms thereof and that [each] Servicer has been approved by
and is acceptable to the Master Servicer. In addition, the Master Servicer
hereby represents and warrants that it has not taken any action in performing or
attempting to perform any of its rights or obligations under this Agreement
which is unreasonable, arbitrary or capricious, or which has not been taken in
good faith or performed in a commercially reasonable manner.
Section 9. Notices.
---------- --------
All notices, requests, demands and other communications required or
permitted under the Master Servicing Agreement shall be in writing and shall be
deemed to have been duly given, made and received when delivered against receipt
or upon actual receipt of registered or certified mail, postage prepaid, return
receipt requested, addressed as set forth below:
If to the Issuer:
SRMSC Owner Trust 20[ ]-[ ]
c\o [ ]
[ ]
Attention:
If to the Master Servicer:
[----------]
[----------]
[----------]
Attention: Servicing Department
-3-
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.
Section 10. Binding Nature of Agreement; Assignment.
----------- ----------------------------------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. The
Trustee, in its capacity as trustee under the Indenture, and the Note Insurer
are intended third-party beneficiaries of this Agreement. This Agreement inures
to the benefit of the Trustee and the Note Insurer (and after a Note Insurer
Event of Default has occurred, the Trustee, shall be able to enforce all of the
rights of the Issuer hereunder).
Section 11. Entire Agreement.
----------- -----------------
This Agreement and the Standard Terms (which includes the Servicing
Agreement[s]) contain the entire agreement and understanding between the parties
hereto with respect to the subject matter hereof and supersede all prior and
contemporaneous agreements, understandings, inducements and conditions,
expressed or implied, oral or written, of any nature whatsoever with respect to
the subject matter hereof. 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, between the Master Servicer and the Issuer, that has been
approved in writing by the Note Insurer and the Trustee. The Master Servicer
shall use its best efforts promptly to provide notice to the Rating Agencies
rating the Notes if this Agreement is so modified and amended.
Section 12. Controlling Law.
----------- ----------------
THIS AGREEMENT AND ALL QUESTIONS RELATING TO ITS VALIDITY,
INTERPRETATION, PERFORMANCE AND ENFORCEMENT, SHALL BE GOVERNED BY AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
NOTWITHSTANDING ANY NEW YORK OR OTHER CHOICE-OF-LAW RULES TO THE CONTRARY.
Section 13. Indulgences Not Waivers.
----------- ------------------------
Neither the failure nor any delay on the part of a party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of any
other right, remedy, power or privilege, nor shall any waiver of any right,
remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege 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.
-4-
Section 14. Titles Not to Affect Interpretation.
----------- ------------------------------------
The titles of paragraphs and subparagraphs contained in this Agreement
are for convenience only, and they neither form a part of this Agreement nor are
they to be used in the construction or interpretation hereof.
Section 15. Provisions Separable.
----------- ---------------------
The provisions of this Agreement are independent of and separable 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.
-5-
IN WITNESS WHEREOF, the parties hereto have executed this Master
Servicing Agreement as of the date set forth above.
SRMSC OWNER TRUST 20[ ]-[ ]
By: [ ],
in its capacity as Owner Trustee
By: __________________________________
Its:__________________________________
[__________]
By: __________________________________
Its:__________________________________
-6-