SPECIAL SERVICING AGREEMENT
This SPECIAL SERVICING AGREEMENT (the "Agreement") is made and
entered into as of ____________ 1, 1999, between _______________, as seller
and master servicer (the "Company"), _______________, as holder of the
Class B Certificates identified on Schedule I (the "Class B Holder") and
_______________, [an affiliate of the Class B Holder,] as special servicer
(the "Special Servicer").
PRELIMINARY STATEMENT
WHEREAS, the Class B Holder is the holder of at least 75% of each
the classes of Mortgage Pass-Through Certificates (each a "Class B
Certificate") of the series of issuances (each a "Series") issued by the
Company identified on Schedule I attached hereto (such Schedule I, as may
be modified or amended to reflect (i) the purchase from time to time by the
Class B Holder of interests in any class of Class B Certificates of a
Series such that the Class B Holder owns not less than 75% of the then
outstanding Certificate Principal Balance of such Class B Certificates and
(ii) the sale from time to time of the Class B Holder of interests in any
class of Class B Certificates of a Series such that the Class B Holder owns
less than 75% of the then outstanding Certificate Principal Balance of such
Class B Certificates, the "Schedule I").
WHEREAS, each of the Class B Certificates was issued by the
Company pursuant to the Pooling and Servicing Agreement or Agreements (each
a "Pooling and Servicing Agreement") identified on Schedule I and evidences
an ownership interest in a pool of Mortgage Loans.
WHEREAS, the Company is the Master Servicer of the Mortgage Loans
related to each Series and the Mortgage Loans are serviced in accordance
with the applicable Pooling and Servicing Agreement [and the Company's
[Servicer Guide] (the "Servicer Guide")].
WHEREAS, in connection with the purchase by Class B Holder of a
Series of Class B Certificates (whether owned by the Class B Holder on the
date hereof or purchased by the Class B Holder at any time in the future),
the Class B Holder and the Company have agreed that (i) the Class B Holder,
if it owns 75% of the most subordinate outstanding class of Class B
Certificates of a Series (calculated by dividing the then outstanding
Certificate Principal Balance of such Class B Certificates by the then
outstanding Certificate Principal Balance of all certificates of the same
class) may elect to have certain Mortgage Loans with respect to the related
Series that become 90 or more days delinquent (each such Mortgage Loan, a
"Delinquent Mortgage Loan") serviced by the Special Servicer (each such
Delinquent Mortgage Loan, a "Specially Serviced Mortgage Loan"), and (ii)
with respect to Delinquent Mortgage Loans other than Specially Serviced
Mortgage Loans, the Company will provide to the Class B Holder such
information as is generated [pursuant to the terms of the Servicer Guide]
by the Company or a subservicer with respect to such Delinquent Loan.
1
NOW THEREFORE, in consideration of the premises and mutual
agreements hereinafter set forth, the Company, the Class B Holder and the
Special Servicer hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions Incorporated by Reference.
Capitalized terms used but not otherwise defined in this Agreement
shall have the respective meaning ascribed thereto as set forth in the
related Pooling and Servicing Agreement [or the Servicer Guide, as the
context may require].
ARTICLE II
DESIGNATION OF SPECIALLY SERVICED MORTGAGE LOANS AND SPECIAL
SERVICING PROCEDURES
Section 2.01 [Approval of _______________ as an Approved Servicer
under the Servicer Guide.
The Company hereby approves _______________ as an approved
servicer for all purposes under the terms of the Servicer Guide.]
Section 2.02 Specially Serviced Mortgage Loans.
To the extent and for so long as the Class B Certificates of a
Series are outstanding and the Class B Holder owns at least 75% of the most
subordinate outstanding class of the Class B Certificates of such Series
(calculated by dividing the then outstanding Certificate Principal Balance
of such Class B Certificates by the then outstanding Certificate Principal
Balance of all certificates of the same class ), Delinquent Mortgage Loans
of the related Series may, at the option of the Class B Holder, be
designated in writing by the Class B Holder as Specially Serviced Mortgage
Loans and transferred to the Special Servicer for servicing. The Special
Servicer shall service the Specially Serviced Mortgage Loans in accordance
with the terms of the related Pooling and Servicing Agreement [and the
Servicer Guide].
Following the designation of a Delinquent Mortgage Loan as a
Specially Serviced Loan, the Company shall transfer servicing of such
Delinquent Mortgage Loan to the Special Servicer substantially in the
manner set forth herein and in Schedule II hereto. [The parties hereto
agree that any fees resulting from the transfer of the servicing of a
Delinquent Mortgage Loan from the Company or a subservicer to the Special
Servicer (or any successor thereto) shall be the obligation of the
Company.]
2
As of the Effective Date (as defined below) of each Specially
Serviced Mortgage Loan, the Special Servicer shall succeed to and undertake
all rights, duties and obligations of the prior servicer (including,
without limitation, the making of advances, any right to purchase such
Specially Serviced Mortgage Loan at the purchase price set forth in the
related Pooling and Servicing Agreement and the right to receive the
servicing fee with respect to such Specially Serviced Mortgage Loan)
pursuant to and in accordance with the terms of the related Pooling and
Servicing Agreement [and the terms and conditions of the Servicer Guide].
With respect to each Specially Serviced Mortgage Loan, the
effective date (the "Effective Date") shall be the first day of the month
immediately following the month of designation of such Specially Serviced
Mortgage Loan as such, provided that such written designation is received
by the Company on or prior to the 15" calendar day of such month.
Once a Delinquent Mortgage Loan becomes a Specially Serviced
Mortgage Loan, such Delinquent Mortgage Loan shall remain a Specially
Serviced Mortgage Loan, and shall continue to be serviced by the Special
Servicer, until the earlier of the liquidation or other disposition of such
Specially Serviced Mortgage Loan or the termination of this Agreement,
regardless of delinquency status, whether the related Mortgaged Property
becomes an REO Property or otherwise; provided, however, that if the
Company exercises its right as Master Servicer to purchase all of the
Mortgage Loans in a Trust Fund pursuant to an optional termination
provision under the related Pooling and Servicing Agreement, the servicing
of any related Specially Serviced Mortgage Loans with respect to which
foreclosure proceedings have not been commenced shall be transferred
promptly by the Special Servicer in accordance with written instructions
from the Company.
If the Class B Holder (i) transfers such percentage interest in
any Class B Certificates of a Series such that the Class B Holder owns less
than 75% of the then outstanding Certificate Principal Balance of such
class, or (ii) purchases such percentage interest in any Class B
Certificates of a Series such that the Class B Holder owns 75% or more of
the then outstanding Certificate Principal Balance of such class, the Class
B Holder shall promptly notify the Company and the Special Servicer in
writing of any such transfer or acquisition. Upon receipt of written notice
from the Class B Holder, the Company or the Class B Holder shall revise
Schedule I hereto to reflect any such transfer or acquisition and shall
forward promptly a copy of such revised schedule to the Company or the
Class B Holder, as applicable, and the Special Servicer. With respect to
the purchase of at least 75% of the Class B Certificates of any Series by
the Class B Holder after the date hereof, this Agreement shall be effective
as of the date such written notice of acquisition is received by the
Company.
If and to the extent the Company is permitted to purchase
Delinquent Mortgage Loans under the related Pooling and Servicing
Agreement, the Class B Holder may direct the Company to purchase any
Specially Serviced Mortgage Loan and to promptly resell such Mortgage Loan
to the Class B Holder at the price and on the terms set forth in such
Pooling and Servicing Agreement. In the event the Class B Holder directs
the Company to purchase a
3
Specially Serviced Mortgage Loan as permitted under this Section, the
Company shall promptly take all action necessary under the terms of the
related Pooling and Servicing Agreement in order to accomplish such
purchase (i.e. provide notification to the Trustee and/or Custodian) and to
resell such Specially Serviced Mortgage Loan to the Class B Holder. The
Class B Holder, and not the Company, shall be required to remit the
purchase price for such Specially Serviced Mortgage Loan to the related
Trustee. The Company will inform the Trustee in writing of the purchase of
such Specially Serviced Mortgage Loan by the Class B Holder and further
shall promptly take all actions necessary or desirable to effect the
conveyance of such Mortgage Loan and the related servicing rights to the
Class B Holder or its designee, time being of the essence.
Notwithstanding any provision herein to the contrary, the Special
Servicer shall (i) in no event be obligated to effect any cure or remedy in
connection with a deficiency in the documentation for any Specially
Serviced Mortgage Loan to the extent such deficiency existed at the time
such Mortgage Loan became a Specially Serviced Mortgage Loan or (ii) have
any responsibility for any obligations, duties, or liabilities of the
Company with respect to the servicing of a Specially Serviced Mortgage Loan
that arose prior to the related Effective Date for such Specially Serviced
Mortgage Loan, other than those which would customarily be assumed after
the Effective Date.
Section 2.03 Termination of Special Servicer for Default.
-------------------------------------------
The Company shall have the right, immediately upon written notice,
to terminate the Special Servicer's right and obligation to subservice all
of the Specially Serviced Mortgage Loans hereunder in the event (each such
event, an "Event of Default") of:
(i) any failure by the Special Servicer to remit to the
Company for distribution to the Certificateholders of a Series any
payment (including without limitation, any failure to make any
required Advance) required to be made under the terms of this
Agreement or the related Pooling and Servicing Agreement which
continues unremedied for a period of one day after the date upon
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Special Servicer by the
Company; or
(ii) any failure on the part of the Special Servicer duly
to observe or perform in any material respect any other of the
covenants or agreements on the part of the Special Sub-Servicer
contained in this Agreement (including any breach of the Special
Servicer's representations and warranties contained in Section
4.03 hereof, which materially and adversely affects the interests
of the Certificateholders of a Series) which continues unremedied
for a period of 30 days after the date on which written notice of
such failure, requiring the same to be remedied, shall have been
given to the Special Servicer by the Company; or
4
(iii) a decree or order of a court or agency or
supervisory authority having jurisdiction 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 proceedings, or
for the winding-up or liquidation of its affairs, shall have been
entered against the Special Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period
of 60 consecutive days; or
(iv) the Special 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 the Special
Servicer or of or relating to all or substantially all of its
property; or
(v) the Special Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of or otherwise voluntarily commence a
case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of
its obligations.
If an Event of Default shall occur, then, and in each and every
such case, upon receipt of written notice from the Company, the Special
Servicer shall immediately remit to the Company all amounts in the
Collection Accounts and the Escrow Accounts and all rights of the Special
Servicer to service the Specially Serviced Mortgage Loans shall terminate.
Following the receipt of written notice from the Company as provided above,
all authority and power of the Special Sub-Servicer to subservice all the
Specially Serviced Mortgage Loans shall pass to and be vested in the
Company pursuant to and under this Section 2.03, and the Special Servicer
shall do all things necessary to effect a transfer of the servicing rights
back to the Company. In this regard, the Company is hereby authorized and
empowered to execute and deliver, on behalf of the Special Servicer, as
attorney-in-fact or otherwise, 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 affected Specially
Serviced Mortgage Loans and related documents, or otherwise. The Special
Servicer agrees to cooperate with the Company in implementing the
termination of the Special Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to the Company or
its appointed agent for administration by it of all amounts in the
possession of the Special Servicer or thereafter be received with respect
to the Specially Serviced Mortgage Loans and the transfer of the servicing
rights back to the Company .
Section 2.04 Appointment of Successor Special Servicer.
-----------------------------------------
The Class B Holder shall have the right, upon 90 days prior
written notice to the Company and the Special Servicer appoint a successor
special servicer having the
5
characteristics set forth in clauses (i), (ii) and (iii) below, and which
shall succeed to all rights and assume all of the responsibilities, duties
and liabilities of the Special Servicer under this Agreement simultaneously
with the termination of the Special Servicer's responsibilities, duties and
liabilities under this Agreement. In the event that the Special Servicer's
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the foregoing, the Special Servicer shall discharge
such duties and responsibilities during the period from the date it
acquires knowledge of such termination until the effective date thereof
with the same degree of diligence and prudence which it is obligated to
exercise under this Agreement, and shall take no action whatsoever that
might impair or prejudice the rights or financial condition of its
successor. The removal of the Special Servicer shall not become effective
until a successor shall be appointed pursuant to this Section and shall in
no event relieve the Special Servicer of the representations and warranties
made pursuant to Section 4.03 and the remedies available to the Class B
Holder and/or the Company under Sections 4.04 and 5.01, it being understood
and agreed that the provisions of such Sections 4.04 and 5.01 shall be
applicable to the Special Servicer notwithstanding any such termination of
it, or the termination of this Agreement.
Any successor special servicer shall (i) [be an institution having a net
worth of not less than $1,000,000][meet the eligibility requirements of an
approved servicer under the Company's Servicer Guide], (ii) the appointment
of such successor servicer will not result in the downgrading in any rating
by any applicable rating agency of any security issued in connection with
the applicable Pooling and Servicing Agreements, and (iii) have and keep in
full effect its existence, rights and franchises as a corporation (or such
other corporate form), and shall obtain its qualification to do business as
a foreign corporation (or such other corporate form) in each jurisdiction
in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement or any of the Specially
Serviced Mortgage Loans and to perform its duties under this Agreement. Any
successor appointed as provided herein shall execute, acknowledge and
deliver to the Class B Holder and the Company an instrument accepting such
appointment, wherein the successor shall make the representations and
warranties set forth in Section 4.03, whereupon such successor shall become
fully vested with all the rights, powers, duties, responsibilities,
obligations and liabilities of the Special Servicer, with like effect as if
originally named as a party to this Agreement.
Within 30 days of the appointment of a successor special servicer
by the Class B Holder, the Special Servicer shall prepare, execute and
deliver to the successor entity any and all documents and other
instruments, place in such successor's possession all servicing files
related to the Specially Serviced Mortgage Loans, and do or cause to be
done all other acts or things necessary or appropriate to effect the
purposes of such notice of termination[, including but not limited to the
transfer and endorsement of the related Mortgage Notes and other documents,
and the Class B Holder shall do or cause to be done the preparation and
recordation of Assignments of Mortgage and Deeds at the Class B Holder's
sole expense].
The Special Servicer shall cooperate with the Class B Holder and such
successor
6
in effecting the termination of the Special Servicer's responsibilities and
rights hereunder and the transfer of servicing responsibilities to the
successor special servicer, including without limitation, the transfer to
such successor of all amounts received by it with respect to the Specially
Serviced Mortgage Loans. Further, the Special Servicer shall execute and
deliver such instruments and do such other things as may reasonably be
required to more fully and definitively vest in the successor all such
rights, powers, duties, responsibilities, obligations and liabilities of
the Special Servicer.
ARTICLE III
DELINQUENT MORTGAGE LOANS OTHER THAN SPECIALLY SERVICED
MORTGAGE LOANS
Section 3.01 Reporting of Delinquent Mortgage Loans.
--------------------------------------
(a) To the extent and for so long as the Class B Certificates of a
Series are outstanding and any interest in such Class B Certificates is
held by the Class B Holder, the Company, as Master Servicer of the Mortgage
Loans related to each Series, hereby agrees to provide to the Class B
Holder the following notices and reports:
Within three (3) Business Days after each Distribution Date (or
included in or with the monthly statements to Certificateholders pursuant
to the related Pooling and Servicing Agreement), the Company shall provide
to the Class B Holder a report, in tape format, containing the following
information:
(1) With respect to each Series, the number and aggregate Principal
Balance of the Mortgage Loans delinquent one, two and three months
or more, together with the Principal Balance of each Mortgage Loan
delinquent, one, two and three months or more;
(2) With respect to each Series, the (i) number and aggregate
Principal Balance of Mortgage Loans with respect to which
foreclosure proceedings have been initiated, and (ii) the number
and aggregate book value of Mortgaged Properties acquired through
foreclosure, deed in lieu of foreclosure or other exercise of
rights respecting the Trustee's security interest in the Mortgage
Loans, and with respect to each Mortgage Loan, the (i) Principal
Balance of each such Mortgage Loan with respect to which
foreclosure proceedings have been initiated, and (ii) the book
value of each Mortgaged Property acquired through foreclosure,
deed in lieu of foreclosure or other exercise of rights respecting
the Trustee's security interest in the related Mortgage Loan; and
(3) With respect to each Series, the amount of Realized Losses
allocable to the Certificates on the related Distribution Date and
the cumulative amount of Realized Losses allocated to such
Certificates since the Cut-off Date, and with respect to each
Mortgage Loan, the amount of Realized Losses attributable to such
Mortgage Loan on
7
the related Distribution Date and the cumulative amount of
Realized Losses attributable to such Mortgage Loan since the
Cut-off Date.
In addition, the Company, as Master Servicer of the Mortgage Loans, shall
send, or shall cause the related servicer to send, to the Class B Holder
all other written reports, documentation, instruments, certificates and
correspondences provided by a servicer under the terms of the Servicer
Guide with respect to any Mortgage Loan that becomes sixty (60) days or
more delinquent.
(b) If requested by the Class B Holder, the Company shall make its
servicing personnel available to respond to reasonable inquiries, by phone
or in writing by facsimile, electronic, or overnight mail transmission, in
connection with any Mortgage Loan identified in any report or document
provided pursuant to clause (a) above; provided, that the Company shall
only be required to provide information that is reasonably accessible to
its servicing personnel (or its subservicers).
(c) In addition to the information described above, the Company
shall provide to the Class B Holder such information as the Class B Holder
may reasonably request; provided, however, that the Mortgage Loans are
Delinquent Mortgage Loans or the Mortgaged Property has been foreclosed
upon. The Class B Holder will reimburse the Company for any reasonable
out-of-pocket expenses incurred by it in providing such information.
Section 3.02 Servicing of Delinquent Mortgage Loans.
--------------------------------------
(a) Prior to the Commencement of Foreclosure of any Mortgage Loan,
the Company shall provide, or cause the related servicer to provide, the
Class B Holder with a notice (sent by telecopier) of such proposed and
imminent foreclosure, stating the loan number and the aggregate amount due
under the Mortgage Note.
For purposes of this Agreement, "Commencement of Foreclosure"
shall mean the first official action required under local law in order to
commence foreclosure proceedings or to schedule a trustee's sale under a
deed of trust, including (i) in the case of a mortgage, any filing or
service of process necessary to commence an action to foreclosure, or (ii)
in the case of a deed of trust, posting, the publishing, filing or delivery
of a notice of sale, but not including in either case (x) any notice of
default, notice of intent to foreclose or sell or any other action
prerequisite to the actions specified in (i) or (ii) above, (y) the
acceptance of a deed-in-lieu of foreclosure (whether in connection with a
sale of the related property or otherwise) or (z) initiation and completion
of a short pay-off.
(b) In connection with any Delinquent Mortgage Loan with respect
to which a notice under clause (a) above has been delivered to the Class B
Holder, the Class B Holder shall provide the Company with written direction
as to the action to be taken with respect to such Delinquent Mortgage Loan,
including, without limitation, to proceed with foreclosure, to accept a
deed-in-lieu of foreclosure, to consent to a pre-foreclosure sale of
Mortgaged
8
Property at a loss, or, if permitted under the terms of the related Pooling
and Servicing Agreement, to purchase Delinquent Mortgage Loans. Such
written direction must be received by the Company within two (2) Business
Days of transmission of the notice provided by the Company under clause (a)
above. Such two (2) Business Day period shall be extended for no longer
than an additional three (3) Business Days after the receipt of additional
information requested if the Class B Holder requests additional information
related to such Delinquent Mortgage Loan; provided, however that the Class
B Holder will have at least one Business Day to provide written direction
after receipt of any requested additional information. Any such additional
information shall be provided only to the extent it is obtainable by the
Company from existing reports, certificates or statements or otherwise be
reasonably accessible to its servicing personnel (or subservicing
personnel). The Company shall as promptly as practicable carry out, or
cause the relevant servicer to carry out, the instruction of the Class B
Holder in the manner prescribed in such written direction. The Class B
Holder agrees that it has no right to negotiate directly with the Mortgagor
during such period.
In the event the Class B Holder fails to provide any written
direction as provided above, the Company may take any such action as would
be consistent with customary servicing practices of prudent mortgage loan
servicers and the Company's normal policies and practice.
(c) With respect to any Delinquent Mortgage Loan for which the
Company has not provided a notice as contemplated in clause (a) above, the
Class B Holder may, at any time, provide the Company with written direction
as to the action to be taken with respect to such Delinquent Mortgage Loan,
including, without limitation, to commence foreclosure proceedings, to
accept a deed-in-lieu of foreclosure, to consent to a sale of Mortgaged
Property at a loss, or, if permitted under the terms of the related Pooling
and Servicing Agreement, to purchase Delinquent Mortgage Loans. To the
extent such action is not inconsistent with the terms of the related
Pooling and Servicing Agreement or the Company's duties thereunder as
master servicer, the Company shall as promptly as practicable carry out, or
cause the relevant servicer to carry out, the instruction of the Class B
Holder in the manner prescribed in such written direction.
(d) Any foreclosure of a Delinquent Mortgage Loan that has been
initiated in accordance with clauses (b) or (c) above may be discontinued
if (i) the Mortgage Loan has been brought current or if a refinancing or
prepayment occurs with respect to the Mortgage Loan (including by means of
a short payoff approved by the Class B Holder), (ii) the Company has agreed
to the terms of a forbearance agreement with the Mortgagor and such
forbearance agreement has been approved by the Class B Holder, or (iii) if
and to the extent permitted under the related Pooling and Servicing
Agreement, Class B Holder directs the Company to purchase such Delinquent
Mortgage Loan at the price and on the terms set forth in the related
Pooling and Servicing Agreement.
(e) In the event the Class B Holder directs the Company to
purchase a Delinquent Mortgage Loan as permitted under Sections 2.02 and
3.02 (b), (c) and (d), the Class B Holder
9
may direct the Company to purchase any Delinquent Mortgage Loan and to
promptly resell such Mortgage Loan to the Class B Holder at the price and
on the terms set forth in the applicable Pooling and Servicing Agreement.
In the event the Class B Holder directs the Company to purchase a
Delinquent Mortgage Loan as permitted under this Section, the Company shall
promptly take all action necessary under the terms of the related Pooling
and Servicing Agreement in order to accomplish such purchase (i.e. provide
notification to the Trustee and/or Custodian) and to resell such Delinquent
Mortgage Loan to the Class B Holder. The Class B Holder, and not the
Company, shall be required to remit the purchase price for such Delinquent
Mortgage Loan to the related Trustee. The Company will inform the Trustee
in writing of the purchase of such Delinquent Mortgage Loan by the Class B
Holder and further shall promptly take all actions necessary or desirable
to effect the conveyance of such Mortgage Loan and the related servicing
rights to the Class B Holder or its designee, time being of the essence.
[The parties hereto agree that, in connection with a purchase of a
Delinquent Mortgage Loan as provided above, any fees resulting from the
transfer of the servicing of such purchased Delinquent Mortgage Loan from
the Company or a subservicer to a servicer designated by the Class B Holder
shall be the obligation of the Company.]
Section 3.03 Review of the Company's Procedures.
----------------------------------
The Company and the Class B Holder hereby agree that the Class B
Holder shall have the right, at its own expense and during normal business
hours, to review any and all of the books, records, or other information of
the Company which may be relevant to the Company's direct collection, loss
mitigation foreclosure and REO management procedures currently in place in
order to confirm that the procedures used by the Company and its
subservicers are in accordance with the customary servicing practices of
prudent mortgage loan servicers. In order to discuss such books, records or
other information, the Company shall make personnel available who are
knowledgeable about such matters.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Organizational and Other Related Warranties of the
Class B Holder. The Class B Holder hereby makes the following
representations and warranties to the Company and the Special Servicer:
(i) Organization and Good Standing. The Class B Holder is
an entity duly organized, validly existing, and in good standing
under the laws of its state of incorporation or formation or the
laws of the United States.
(ii) No Violation. Neither the execution and delivery by
the Class B Holder of this Agreement, nor the consummation by the
Class B Holder of the transactions contemplated hereby, nor the
performance of and compliance by the Class B Holder
10
with the provisions of this Agreement, will conflict with or
result in a breach or violation of, or constitute a default (or an
event which, with notice or the lapse of time, or both, would
constitute a default) under, the organizational documents (its
articles of incorporation or charter or by-laws) of the Class B
Holder, or any of the provisions of any law, rule, regulation,
judgment, decree, demand, or order (of any federal, state, or
local governmental or regulatory authority or court) binding on
the Class B Holder, or any of its respective properties, or any of
the provisions of any indenture, mortgage, contract, instrument,
or other document to which the Class B Holder is a party or by
which it is bound, or result in the creation or imposition of any
lien, charge, or encumbrance upon any of their respective
properties pursuant to the terms of any indenture, mortgage,
contract, instrument, or other document. The Class B Holder is not
otherwise in violation of any law, rule, regulation, judgment,
decree, demand, or order (of any federal, state or local
governmental or regulatory authority or court), which violation,
in the Class B Holder's, good faith and reasonable judgment, is
likely to affect materially and adversely its ability to perform
its obligations hereunder.
(iii) Authorization and Enforceability. The execution and
delivery by the Class B Holder of this Agreement, the consummation
of the transactions contemplated hereby, and the performance and
compliance by the Class B Holder with the terms hereof are within
the powers of the Class B Holder, and have been duly authorized by
all necessary action on the part of the Class B Holder. All
organizational resolutions and consents necessary for the Class B
Holder to enter into and consummate all transactions contemplated
hereby have been obtained. This Agreement has been duly executed
and delivered by the Class B Holder and constitutes the legal,
valid and binding obligation of the Class B Holder, enforceable
against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, and other
similar laws affecting creditors' rights generally, and to general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law. The Class B Holder
has not failed to obtain any consent, approval, authorization, or
order of, or failed to cause any registration or qualification
with, any court or regulatory authority or other governmental body
having jurisdiction over it, which consent, approval,
authorization, order, registration, or qualification is required
for, and the absence of which would materially adversely affect,
the legal and valid execution, delivery, and performance of this
Agreement by the Class B Holder.
(iv) No Litigation or Adverse Conditions. No litigation
is pending or, to the best of the Class B Holder's knowledge, threatened
against it, which, if determined adversely to the Class B Holder would
prohibit the Class B Holder from entering into this Agreement or, in the
good faith and reasonable judgment of the Class B Holder, is likely to
materially and adversely affect either the ability of the Class B Holder to
perform its obligations hereunder.
11
Section 4.02 Organizational and Other Related Warranties of the
Company. The Company hereby makes the following representations and
warranties to the Class B Holder and the Special Servicer:
(i) Organization and Good Standing. The Company is an
entity duly organized, validly existing, and in good standing
under the laws of its state of incorporation or formation or the
laws of the United States, and is in compliance with the laws of
each state in which any property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan and
to perform its obligations hereunder and the Pooling and Servicing
Agreement.
(ii) No Violation. Neither the execution and delivery by
Company of this Agreement, nor the consummation by it of the
transactions contemplated hereby, nor the performance of and
compliance by the Company with the provisions hereof or of the
Pooling and Servicing Agreement, will conflict with or result in a
breach or violation of, or constitute a default (or an event
which, with notice or the lapse of time, or both, would constitute
a default) under, the organizational documents (its articles of
incorporation or charter or by-laws) of the Company, or any of the
provisions of any law, rule, regulation, judgment, decree, demand,
or order (of any federal, state, or local governmental or
regulatory authority or court) binding on the Company, or any of
its properties, or any of the provisions of any indenture,
mortgage, contract, instrument, or other document (including,
without limitation, any Pooling and Servicing Agreement) to which
the Company is a party or by which it is bound, or result in the
creation or imposition of any lien, charge, or encumbrance upon
any of their respective properties pursuant to the terms of any
indenture, mortgage, contract, instrument, or other document. The
Company is not otherwise in violation of any law, rule,
regulation, judgment, decree, demand, or order (of any federal,
state or local governmental or regulatory authority or court),
which violation, in the Company's good faith and reasonable
judgment, is likely to affect materially and adversely either its
ability to perform its obligations hereunder or under the Pooling
and Servicing Agreements, or the financial condition of the
Company.
(iii) Authorization and Enforceability. The execution and
delivery by the Company of this Agreement, the consummation of the
transactions contemplated hereby, and the performance and
compliance by the Company with the terms hereof and of the Pooling
and Servicing Agreements are within the powers of the Company, and
have been duly authorized by all necessary action on the part of
the Company. All organizational resolutions and consents necessary
for the Company to enter into and consummate all transactions
contemplated hereby have been obtained. This Agreement has been
duly executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company, enforceable
against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, and other
similar laws affecting creditors' rights generally, and to general
principles of equity, regardless of whether such enforcement is
considered in a
12
proceeding in equity or at law. The Company has not failed to
obtain any consent, approval, authorization, or order of, or
failed to cause any registration or qualification with, any court
or regulatory authority or other governmental body having
jurisdiction over the Company, which consent, approval,
authorization, order, registration, or qualification is required
for, and the absence of which would materially adversely affect,
the legal and valid execution, delivery, and performance of this
Agreement by the Company.
(iv) Approvals and Permits. The Company possesses such
certificates, authorizations, licenses, and permits issued by the
appropriate state, federal, and foreign regulatory agencies or
bodies necessary to conduct the business now operated by it, and
the Company has not received any notice of proceedings relating to
the revocation or modification of any such certificate,
authorization, or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling, or finding, would
materially and adversely affect the conduct of the business,
operations, financial condition, or income of the Company.
(v) No Litigation or Adverse Conditions. No litigation is
pending or, to the best of the Company's knowledge, threatened
against it, which, if determined adversely to the Company would
prohibit the Company from entering into this Agreement or, in the
good faith and reasonable judgment of the Company, is likely to
materially and adversely affect either its ability to perform its
obligations hereunder or under the Pooling and Servicing
Agreements or the financial condition of the Company. The Company
has no knowledge of any recent adverse financial condition or
event with respect to itself that, in its good faith and
reasonable judgment, is likely to materially and adversely affect
its ability to perform its obligations hereunder or under the
Pooling and Servicing Agreements.
(vi) Fidelity Bond: Errors and Omission Insurance. Each
officer, director, employee, consultant and advisor of the Company
with responsibilities concerning the servicing and administration
of the Mortgage Loans is covered by errors and omissions insurance
and fidelity bond insurance in the amounts and with the coverage
required under the related Pooling and Servicing Agreement for it
to maintain. Neither the Company nor any of its officers,
directors, employees, consultants, or advisors involved in the
servicing or administration of the Mortgage Loans has been refused
such coverage or insurance.
Section 4.03 Organizational and Other Related Warranties of the
Special Servicer. The Special Servicer hereby makes the following
representations and warranties to the Company and the Class B Holder:
13
(i) Organization and Good Standing. The Special Servicer
is an entity duly organized, validly existing, and in good
standing under the laws of its state of incorporation or formation
or the laws of the United States, and is in compliance with the
laws of each state in which any property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan and
to perform its obligations hereunder.
(ii) No Violation. Neither the execution and delivery by
Special Servicer of this Agreement, nor the consummation by it of
the transactions contemplated hereby, nor the performance of and
compliance by the Special Servicer with the provisions hereof ,
will conflict with or result in a breach or violation of, or
constitute a default (or an event which, with notice or the lapse
of time, or both, would constitute a default) under, the
organizational documents (its articles of incorporation or charter
or by-laws) of the Special Servicer, or any of the provisions of
any law, rule, regulation, judgment, decree, demand, or order (of
any federal, state, or local governmental or regulatory authority
or court) binding on the Special Servicer, or any of its
properties, or any of the provisions of any indenture, mortgage,
contract, instrument, or other document to which the Special
Servicer is a party or by which it is bound, or result in the
creation or imposition of any lien, charge, or encumbrance upon
any of their respective properties pursuant to the terms of any
indenture, mortgage, contract, instrument, or other document. The
Special Servicer is not otherwise in violation of any law, rule,
regulation, judgment, decree, demand, or order (of any federal,
state or local governmental or regulatory authority or court),
which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely
either its ability to perform its obligations hereunder, or the
financial condition of the Special Servicer.
(iii) Authorization and Enforceability. The execution and
delivery by the Special Servicer of this Agreement, the
consummation of the transactions contemplated hereby, and the
performance and compliance by the Special Servicer with the terms
hereof are within the powers of the Special Servicer, and have
been duly authorized by all necessary action on the part of the
Special Servicer. All organizational resolutions and consents
necessary for the Special Servicer to enter into and consummate
all transactions contemplated hereby have been obtained. This
Agreement has been duly executed and delivered by the Special
Servicer and constitutes the legal, valid and binding obligation
of the Special Servicer, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other similar laws affecting
creditors' rights generally, and to general principles of equity,
regardless of whether such enforcement is considered in a
proceeding in equity or at law. The Special Servicer has not
failed to obtain any consent, approval, authorization, or order
of, or failed to cause any registration or qualification with, any
court or regulatory authority or other governmental body having
jurisdiction over the Special Servicer, which consent, approval,
authorization, order, registration, or qualification is required
for, and the absence of which would materially adversely
14
affect, the legal and valid execution, delivery, and performance
of this Agreement by the Special Servicer.
(iv) Approvals and Permits. The Special Servicer
possesses such certificates, authorizations, licenses, and permits
issued by the appropriate state, federal, and foreign regulatory
agencies or bodies necessary to conduct the business now operated
by it, and its has not received any notice of proceedings relating
to the revocation or modification of any such certificate,
authorization, or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling, or finding, would
materially and adversely affect the conduct of the business,
operations, financial condition, or income of the Special
Servicer.
(v) No Litigation or Adverse Conditions. No litigation is
pending or, to the best of the Special Servicer's knowledge,
threatened against it, which, if determined adversely to the
Special Servicer would prohibit the Special Servicer from entering
into this Agreement or, in the good faith and reasonable judgment
of the Special Servicer, is likely to materially and adversely
affect either its ability to perform its obligations hereunder or
the financial condition of the Special Servicer. The Special
Servicer has no knowledge of any recent adverse financial
condition or event with respect to itself that, in its good faith
and reasonable judgment, is likely to materially and adversely
affect its ability to perform its obligations hereunder.
(vi) Fidelity Bond, Errors and Omission Insurance. Each
officer, director, employee, consultant and advisor of the Special
Servicer with responsibilities concerning the servicing and
administration of the Mortgage Loans is covered by errors and
omissions insurance and fidelity bond insurance in the amounts and
with the coverage required under the related Pooling and Servicing
Agreement to be maintained by the Company as master servicer.
Neither the Special Servicer nor any of its officers, directors,
employees, consultants, or advisors involved in the servicing or
administration of the Mortgage Loans has been refused such
coverage or insurance.
(vii) Approved Seller/Servicer. The Special Servicer is
approved as a seller/servicer of single-family mortgage loans by
the Department of Housing and Urban Development.
Section 4.04 Remedies for Breach of Representation and Warranty.
--------------------------------------------------
Upon discovery by any of the Company, the Class B Holder or the
Special Servicer of a breach of any of the representations and warranties
contained in Article IV which materially and adversely affects the value of
the Specially Serviced Mortgage Loans or Delinquent Mortgage Loans, the
party discovering such breach shall give prompt written notice to the
others.
15
Each of the parties hereto shall indemnify the others and hold
each of them harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of such party's representations and warranties contained in Article IV. It
is understood and agreed that the obligations to indemnify as provided in
this Section 4.04 constitute the sole remedies of each of the Company,
Class B Holder and Special Servicer respecting a breach of any other
party's representations and warranties.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 Indemnification.
Each of the Company, the Class B Holder and the Special Servicer
(each as such, an "Indemnifying Party") shall indemnify the other parties
hereto (each as such, an "Indemnified Party") and hold them harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any
other costs, fees and expenses (individually and collectively, the
"Claims") that such Indemnified Party may sustain in any way related to the
failure of the Indemnifying Party to perform its duties in compliance with
the terms of this Agreement; provided, that none of the Company, the Class
B Holder or the Special Servicer or any of the directors, officers,
employees or agents of the Depositor or the Servicer shall be liable for
any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Company, the Class B
Holder or the Special Servicer against any material breach of warranties,
representations or covenants made herein, or against any specific liability
imposed on such party pursuant hereto, or against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder.
Section 5.02 Amendment.
This Agreement may be amended from time to time by written
agreement signed by each of the parties hereto.
Section 5.03 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original
and such counterparts shall constitute but one and the same instrument.
16
Section 5.04 Governing Law.
This Agreement shall be construed in accordance with the laws of
the State of New York and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
Section 5.05 Notices.
All demands, notices and direction hereunder shall be in writing
or by telecopy and shall be deemed effective upon receipt to:
(a) in the case of the Company,
Company
Address
Attention: ___________________
Telephone: ___________________
Facsimile: ___________________
or such other address as may hereafter be furnished to
the Class B Holder and the Special Servicer in writing.
(b) in the case of the Class B Holder,
Address
Attention: ___________________
Telephone: ___________________
Facsimile: ___________________
or such other address as may hereafter be furnished to the Company
in writing.
(c) in the case of the Special Servicer,
Address
Attention: ___________________
Telephone: ___________________
Facsimile: ___________________
or such other address as may hereafter be furnished to the Company
in writing.
Section 5.06 Termination.
17
This Agreement shall terminate (i) at such time as the Principal
Balance of the Class B Certificates has been reduced to zero or (ii) if
mutually agreed to by the parties hereto.
Section 5.07 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be held invalid for any reason whatsoever,
then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of
this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Agreement. If the invalidity of any part,
provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement,
the parties shall negotiate in good faith to develop a structure the
economic effect of which is nearly as possible the same as the economic
effect of this Agreement without regard to such invalidity.
Section 5.08 Successors and Assigns.
This Agreement may not be assigned by any party hereto without the
prior written consent of each of the other parties hereto. The provisions
of this Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto.
Section 5.09 Article and Section Headings.
The article and section headings herein are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 5.10 Confidentiality.
The Class B Holder agrees that all information supplied by or on
behalf of the Company pursuant to Sections 2.02 or 3.01, including
individual account information, is the property of the Company and the
Class B Holder agrees to use such information only for the purposes
contemplated by this Agreement and otherwise hold such information
confidential and not to disclose such information, except to the extent
such information is made publicly available by or on behalf of the Company
or the relevant Trustee.
Section 5.11 Publicly Registered Certificates.
The Class B Holder agrees, that without the prior written consent
of the Company, so long as Class B Holder is a party to this Agreement and
a holder of any Class B Certificates of a Series, it will not purchase,
sell or trade any publicly registered Certificates of the same Series.
Section 5.12 No Partnership.
18
Nothing herein shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of
the Company shall be rendered as an independent contractor and not as an
agent for the Company.
Section 5.13 Rights of the Class B Holder. Notwithstanding
anything herein to the contrary, it is agreed by the parties hereto that
the rights of the Class B Holder set forth under Article II and Section
3.02(e) of this Agreement shall relate to, and be exercisable with respect
to, the related Mortgage Loans of any Series to the extent that and for so
long as, the Class B Holder owns at least 75% of the most subordinate
outstanding class of Class B Certificates of the related Series (calculated
by dividing the then outstanding Certificate Principal Balance of such
Class B Certificates by the then outstanding Certificate Principal Balance
of all certificates of the same class).
19
IN WITNESS WHEREOF, each of the parties hereto have caused its
name to be signed hereto by its respective officer thereunto duly
authorized, all as of the day and year first above written.
COMPANY
By: _____________________________
Name: ___________________________
Title: ____________________________
By: _____________________________
Name: ___________________________
Title: ____________________________
By: _____________________________
Name: ___________________________
Title: ____________________________
20
SCHEDULE I
Describe each Series of Class B Certificates and the related
Pooling and Servicing Agreement
21
SCHEDULE II
SPECIAL SERVICING TRANSFER PROCEDURES
Any transfer of servicing with respect to a Specially Serviced
Mortgage Loan shall be effected substantially in accordance with the
following example. All dates set forth below are for illustrative purposes
only. Capitalized terms used in this Exhibit shall have the meanings
ascribed thereto in the Agreement.
Timeline
Last Business Day of Month One
Mortgagor is 89 Days Delinquent.
3rd Business Day of Month Two
The Company receives an electronic file from its 90+del
Collections Department on all 90+delinquent loans. inquent
loans.
4th Business Day of Month Two
The Company sends the electronic file to Class B Holder/Special
Servicer of all 90+ delinquent loans with information designating
those loans where a forbearance plan or workout is in progress and
those loans where there is no plan in place. The Company and the
Special Servicer have a discussion. The loans to be transferred
are determined by the Class B Holder/Special Servicer.
6th Business Day of Month Two
The Special Servicer informs the Company of the loans
designated as Specially Serviced Mortgage Loans. The
Company and the Special Servicer coordinate the transfer
of servicing of the Specially Serviced Mortgage Loans.
The Company prepares and mails the mortgagor notification
no later than the 13th calendar day of the month. If a
loan reinstates to a current or less than 90 days
delinquent status before the mortgagor notification
(i.e., the "goodbye letter") is sent, such loan will be
removed from the transfer, and the Company will notify
the Special Servicer thereof. The borrower will be
instructed to send the payment due on the effective date
of transfer and any past due payments to the Special
Servicer.
7th Business Day of Month Two
Relevant Trustee receives monthly electronic data file from the
Company. The subject loan is included in the Company's
report as an active loan serviced by the Company.
The Company reports scheduled P&I on the subject loan.
22
On or prior to 15th Calendar Day of
Month Two
The Company sends a foreclosure referral letter to the
Special Servicer's foreclosure counsel with a
corresponding foreclosure package.
18th Calendar Day (or Business day immediately preceding the 18th) of
Month Two The Company makes its monthly remittance, including
advancing scheduled P&I payment due for current month for the
subject loan.
Last business Day of Month Two Month-end cut-off.
1st Business Day of Month Three Effective Date.
On or Before 3rd Business Day of Month Three In accordance with the
Servicing Transfer Instructions:
Company sends Special Servicer final transfer data (e.g., trial balance,
loan files, current and previous 2 years' history records (if
applicable), all default-related correspondence, and all
collection, foreclosure and bankruptcy files);
Company provides Special Servicer with detailed reimbursement request
relating to advances; and
Company sends Special Servicer a check or wire for the net escrow
and unapplied funds.
On or before the 6th Business Day of Month Three
In accordance with the Servicing Transfer Instructions, Special
Service reimburses Company for all outstanding advances, and the
scheduled mortgage payment due on the Effective Date.
-------------------
Note:
1. If the loan has been transferred to Special Servicer and it cures,
Special Servicer continues to service the loan and report it to
Company as herein provided.
2. If the Class B Certificates of the related Series are reduced to
zero, Special Servicer will continue to service the mortgage loans
until they payoff or are liquidated. No other Delinquent Mortgage
Loans of a Series will be transferred to Special Servicer after
the Class B Certificates of such Series are reduced to zero.
23
Servicing Transfer Instructions
I. NOTIFICATION OF LOANS TO TRANSFER
A. Company will coordinate and provide a listing of all loans past 90 days
delinquent. The list will be provided to Special Servicer for review and
discussion on the 4th Business day of each month.
B. Class B Holder and Special Servicer to agree upon the loans to be
transferred at month-end. The list must be provided via Facsimile or E-mail
by the 6th business day of the month to:
[COMPANY]
[Address and contact]
II. CONVERSION DATA
Dependent upon the volume of loans transferring each month, the loans will
be transferred effective the first of each month based on the prior
month-end cut off by one of the following mutually agreed upon conversion
methods.
A. Manual conversion
1. Company to provide a "master file data record" (COMPANY
reference for master file data record?) for each loan (accompanied by a
listing of all code definitions).
2. Company to provide a trial balance containing all the loans.
B. Electronic conversion
1. Information will be provided in a Microsoft Excel spreadsheet
(or such other mutually agreeable format) containing mutually agreed upon
fields.
2. Company to provide a trial balance containing all the loans.
Preliminary information for either a manual or electronic conversion will
be provided within 3 business days of receipt of the List of Loans to
Transfer to provide time for Special Servicer to verify and load the
information, with the exception of the specific data that is determined at
the transfer date.
1
III. HOMEOWNER NOTIFICATION
A. Company will mail the mortgagor notification (good-bye letter) fifteen
days prior to the transfer date. Company will forward a copy of its
good-bye letter to Special Servicer c/o [Dept.] (fax number ___-___-____)
for approval prior to mailing.
B. Copies of Company's mortgagor notification letters will be provided to
Special Servicer.
C. Company to receive a sample of Special Servicer's mortgagor notification
(welcome letter) for approval prior to mailing.
IV. HAZARD/FLOOD INSURANCE
A. Company to prepare a change to the mortgagee clause as follows:
Address
Attention: ___________________
Telephone: ___________________
Facsimile: ___________________
B. Copies of the mortgagee clause change requests will be provided to
Special Servicer.
C. Any unpaid policies, expiration notices, cancellation notices, loans
with expired policies will be properly identified, sorted and marked for
special handling.
D. Company to provide a list of loans under "force place coverage" program.
Force place hazard insurance policies with ASG will be canceled upon
transfer of the loans. WNC force place flood policy coverage will stay in
place after transfer until the expiration date.
V. FHA LOANS
A. Company to provide screen prints to include the following items on FHA
Loans with a monthly premium.
1. Loan number
2. FHA case number
3. Anniversary date
4. Annual premium
5. Monthly amount
6. Total MIP paid to date
7. Next month the premium is due
2
B. Company to provide screen prints to include the following items on FHA
loans that the full premium was paid up front.
1. Loan number
2. FHA case number
3. Insuring date
4. Amount of prepaid premium
C. Company to prepare HUD Form 92080 with Special Servicer's HUD mortgagee
number (72313) and forward to HUD electronically. Proof of submission will
be forwarded to Special Servicer.
VI. CONVENTIONAL LOANS
A. Individual loan PMI certificates will be retained in the Servicing File
B. Company to prepare notifications to the PMI companies requesting a
change of servicer to Special Servicer. Copies will be forwarded to Special
Servicer.
C. Company to provide screen prints of all loans with PMI to include:
1. Loan number
2. PMI company
3. PMI certificate number
4. Next due date
5. Last amount paid
VII. REAL ESTATE TAXES
A. Company to forward individual loan tax records showing payee, due dates,
frequency of payment, next due date, last paid date and last paid amount.
B. Company to provide copies of the notifications to the individual tax
authorities and the Tax Service requests for a change of servicer to
Special Servicer under the following contract numbers (Transamerica-2489
Pinnacle - 119)
C. All property taxes due and payable will be paid prior to the transfer date.
D. All tax bills received after the transfer date will be forwarded to
Special Servicer for payment.
E. Company to provide a listing of any loans with delinquent taxes
containing the pertinent information as of the transfer date.
3
VIII. OPTIONAL INSURANCE
A. Company to provide a list of loans with A&H, life insurance, accidental
death insurance, etc., which will include the following information.
1. Loan number
2. Insurance company
3. Type of coverage
4. Amount of monthly premium
5. Last monthly premium paid
B. Company to provide copies of the master and/or individual policies for
the insurance coverage.
C. Company to provide copies of the notification sent to the insurance
companies.
IX. INVESTOR REPORTS
A. Company to provide a copy of the final remittance report to the investor
including a trial balance as of cutoff date.
B. Company to provide ending loan scheduled balance at transfer date.
C. Company to provide a report detailing advanced delinquent net interest
monthly by due date.
D. Company to provide a report detailing advanced delinquent principal
monthly by due date.
X. OTHER
A. Company to provide hardcopies of the last 24 months history for each
loan accompanied by an explanation of transaction codes.
B. Company to provide copies of the last escrow analysis for each loan with
an explanation of analysis method (cushion, etc.).
C. Company to provide the loan servicing file in hardcopy or microfiche
format.
D. Company to provide the currently active collection records and pertinent
information on delinquent loans.
E. Net escrow and unapplied funds as of the transfer date will be sent to
Special Servicer via check or wire within three business days of the
transfer, accompanied by an explanation of Unapplied Funds codes.
4
F. The advances (exclusive of escrow advances, which will be handled in
Section X (E) above) incurred by Company will be billed to Special Servicer
accompanied by appropriate documentation. Special Servicer to reimburse
Company via check or wire for all advances (exclusive of escrow advances,
which will be handled in Section X (E) above) on the subject loans within
three business days of receipt of billing.
G. Company to provide a listing containing the mortgagor name, co-mortgagor
name, property address and mailing address for preparation of Special
Servicer's Notification Letters.
H. Company to provide the following items, sorted and clearly marked for
special handling.
1. Active foreclosure and bankruptcy files should have the
status shown on the front of each file.
2. Insurance loss drafts should provide all documentation on the
current status.
3. Unprocessed payoff funds should be accompanied by a copy
of the payoff quotation.
4. Information should be furnished on any pending payoff or
assumption.
5. Information on any incomplete partial releases should be
provided.
I. Loan payments received after the cutoff will be endorsed to __________.
and forwarded by overnight service to the following address within
twenty-four hours, properly identified with Company's loan number.
[Address]
Returned Items received after the transfer date will be forwarded to
Special Servicer for reimbursement. Special Servicer to reimburse Company
within 10 business days of receipt.
J. Company to ship all loan files and documentation related to the
individual transfers by the 3rd business day after the cut-off. Any
information, such as preliminary trial balances, master file data records,
delinquency information, etc. will be furnished as early as possible prior
to the transfer date.
All shipments to be sent to:
[Address]
5
K. Company to furnish all required IRS reporting statements for the current
year up to the transfer date, both to the mortgagors and to the appropriate
government agencies. Special Servicer to furnish all required year-end
reporting commencing on the effective date of transfer through the
year-end.
6
EXHIBIT A to Schedule II
LOAN INFORMATION TO BE PROVIDED TO COMPANY
