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XXXX XXXXX ASSET MANAGEMENT COMPANY
INTERIM SERVICER
AND
SUNAMERICA LIFE INSURANCE COMPANY
AND XXXX XXXXX LIFE INSURANCE COMPANY OF NEW YORK
(COLLECTIVELY, THE "OWNER")
INTERIM SERVICING AGREEMENT
DATED AS OF MARCH 31, 1997
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS......................................................................................1
AGREEMENT.................................................................................................1
BUSINESS DAY..............................................................................................1
CERTIFICATE ACCOUNT.......................................................................................1
CORPORATE OFFICE..........................................................................................1
DETERMINATION DATE........................................................................................2
DUE DATE .................................................................................................2
DUE PERIOD................................................................................................2
ESCROW ACCOUNT............................................................................................2
ESCROW PAYMENTS...........................................................................................2
EVENT OF DEFAULT..........................................................................................2
FIRST REMITTANCE DATE.....................................................................................2
INTERIM SERVICER..........................................................................................2
INTERIM SERVICING FEE.....................................................................................2
MATURITY DATE.............................................................................................2
MONTHLY PAYMENT...........................................................................................2
MORTGAGE .................................................................................................2
MORTGAGE FILE.............................................................................................2
MORTGAGE LOANS............................................................................................2
MORTGAGE LOAN SCHEDULE....................................................................................3
MORTGAGE NOTE.............................................................................................3
MORTGAGED PROPERTY........................................................................................3
MORTGAGOR.................................................................................................3
PERSON .................................................................................................3
RECORD DATE...............................................................................................3
REMITTANCE DATE...........................................................................................3
SERVICERS.................................................................................................3
SERVICING ACCOUNTS........................................................................................3
SERVICING AGREEMENTS......................................................................................3
SERVICING FEE.............................................................................................3
SERVICERS' REMITTANCE DATE................................................................................3
ARTICLE II ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...................................................3
SECTION 2.01. Interim Servicer to Act as Interim Servicer..............................................3
SECTION 2.02. Servicing Agreements Between the Owner and the Servicers; Enforcement of Other
Agreements...............................................................................4
SECTION 2.03. Liability of the Interim Servicer........................................................4
SECTION 2.04. Collection of Certain Mortgage Loan Payments.............................................4
SECTION 2.05. Servicing Accounts.......................................................................4
SECTION 2.06. Establishment of Certificate Account; Deposits in Certificate Account....................4
SECTION 2.07. Permitted Withdrawals From the Certificate Account.......................................5
SECTION 2.08. Establishment of Escrow Account; Deposits in Escrow Account..............................5
SECTION 2.09. Permitted Withdrawals From Escrow Accounts...............................................6
SECTION 2.10. Payment of Taxes and Insurance...........................................................6
SECTION 2.11. Maintenance of Hazard Insurance..........................................................6
SECTION 2.12. Delinquent Payments on Mortgage Loans....................................................6
SECTION 2.13. Servicing Compensation...................................................................6
SECTION 2.14. Records; Access to Certain Documentation and Information Regarding the
Mortgage Loans...........................................................................6
SECTION 2.15. Satisfaction of Mortgages................................................................7
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SECTION 2.16. Limitation of Servicer's Authority.......................................................7
SECTION 2.17. Fidelity Bond and Errors Omissions.......................................................7
ARTICLE III PAYMENTS; STATEMENTS AND REPORTS.................................................................8
SECTION 3.01. Distributions............................................................................8
SECTION 3.02. Statements to the Owner..................................................................8
ARTICLE IV LIABILITY OF THE INTERIM SERVICER................................................................9
SECTION 4.01. Limitation on Liability of the Interim Servicer and Others...............................9
SECTION 4.02. Indemnification..........................................................................9
ARTICLE V DEFAULT..........................................................................................9
SECTION 5.01. Events of Default........................................................................9
ARTICLE VI TERMINATION.................................................................................... 10
SECTION 6.01. Termination............................................................................ 10
ARTICLE VII MISCELLANEOUS PROVISIONS....................................................................... 11
SECTION 7.01. Amendment.............................................................................. 11
SECTION 7.02. Governing Law.......................................................................... 11
SECTION 7.03. Reports; Notices....................................................................... 11
SECTION 7.04. Severability of Provisions............................................................. 11
SECTION 7.05. No Partnership......................................................................... 11
SECTION 7.06. Execution; Successors and Assigns...................................................... 11
SECTION 7.07. Attorney's Fees........................................................................ 11
SECTION 7.08. Entire Agreement....................................................................... 12
SECTION 7.09. Headings............................................................................... 12
EXHIBITS
Exhibit A Schedule of Mortgage Loans
Exhibit One Certificate Account Letter Agreement
Exhibit Two Escrow Account Letter Agreement
Exhibit Three Permitted Investments
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This Interim Servicing Agreement relating to the interim servicing of
Mortgage Loans identified on Schedule A hereto is effective as of March 31,
1997, is executed between Xxxx Xxxxx Asset Management Company having an office
at 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000-0000 (hereinafter referred
to as the "Interim Servicer"), SunAmerica Life Insurance Company, having an
office at 0 XxxXxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
("SunAmerica"), and Xxxx Xxxxx Life Insurance Company of New York, having an
office at 0 XxxXxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
("JANY," and together with "SunAmerica," hereinafter referred to as the
"Owner").
RECITALS
WHEREAS, the Owner is the owner of certain mortgage loans (the
"Mortgage Loans") evidenced by a bond and/or promissory note (the "Notes") and
secured by a deed of trust or mortgage on commercial real property (the
"Mortgages"), which Mortgage Loans are described in Schedule A annexed hereto;
and
WHEREAS, the Interim Servicer shall act on behalf of Owner in order to
service the Mortgage Loans as an Interim Servicer and to act as a master
servicer for any Mortgage Loan or Mortgage Loans serviced under a third party
servicing agreement in existence prior to the date hereof.
WHEREAS, the Owner and the Interim Servicer have agreed that Interim
Servicer shall undertake to service the Mortgage Loans for Owner;
NOW THEREFORE, in consideration of the promises and the mutual premises
and the recitals set forth above which are made a contractual part hereof and
hereinafter contained and the payment of One Dollar ($1.00) by each of the
parties to the other in hand paid, receipt whereof is hereby acknowledged, it is
mutually covenanted and agreed as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
ACCEPTED SERVICING PRACTICES: As defined in Section 2.01 of this
Agreement.
AGREEMENT: This Interim Servicing Agreement, including all exhibits
hereto, and all amendments hereof and supplements hereto.
BUSINESS DAY: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking or savings and loan institutions are authorized or
obligated by law or executive order to be closed in the State of Florida.
CERTIFICATE ACCOUNT: The trust accounts established and maintained
pursuant to Section 2.07 of this Agreement.
CORPORATE OFFICE: The principal office of the Interim Servicer in the
State of Florida at which at any particular time its corporate business shall be
administered, which office at the date of the execution of this instrument is
located at 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000.
CUT-OFF DATE: March 31, 1997
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DETERMINATION DATE: The last day (or if such day is not a Business Day,
the Business Day immediately preceding such last day) of each month.
DUE DATE: The day of the month on which each Monthly Payment is due on
a Mortgage Loan, exclusive of any days of grace.
DUE PERIOD: With respect to each Remittance Date, the applicable Due
Period shall be the period beginning on the first day of the month preceding the
month of the Remittance Date, and ending on the last day of the month preceding
the Remittance Date.
ESCROW ACCOUNT: The separate account or accounts created and maintained
pursuant to Section 2.08 of this Agreement.
ESCROW PAYMENTS: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and other payments required to be escrowed by the Mortgagor with the
Mortgagee pursuant to any Mortgage Loan and this Agreement.
EVENT OF DEFAULT: Any one of the conditions or circumstances enumerated
in Article V of this Agreement.
FIRST REMITTANCE DATE: April 5, 1997, or if such day is not a Business
Day, the first Business Day immediately following; provided however, that the
funds remitted to Owner on the First Remittance Date shall include all payments
collected by Interim Servicer under the Mortgage Loans between March 21, 1997
and March 31, 1997.
INSURANCE PROCEEDS: Proceeds paid by any insurer pursuant to any
insurance policy covering a Mortgage Loan to the extent such proceeds are
applied to the restoration of the related Mortgaged Property or released to the
related Mortgagor in accordance with Accepted Servicing Practices.
INTERIM SERVICER: Xxxx Xxxxx Asset Management Company or its successors
or assigns.
INTERIM SERVICING FEE: Monthly compensation with respect to each
Mortgage Note being serviced under this Agreement in an amount to be deducted by
the Interim Servicer from the Monthly Payment made with respect to such Mortgage
Note in an amount as set forth in Section 2.13. The obligation of the Owner to
pay the Interim Servicing Fee with respect to each Mortgage Note is limited to,
and payable solely from, the Monthly Payment of the specific Mortgage Note as to
which the entire amount of the Monthly Payment (excluding late fees or penalty
charges which are or may become due) has been made and collected by the Interim
Servicer, and may only be deducted by the Interim Servicer after the entire
amount of a regular Monthly Payment (excluding late fees or penalty charges
which are or may become due) for such month with respect to such Mortgage Note
has been received, and deposited, by the Interim Servicer into the Certificate
Account.
MATURITY DATE: The date on which each Mortgage Note, pursuant to its
terms, shall mature such date being set forth on the Mortgage Loan Schedule.
MONTHLY PAYMENT: The scheduled monthly payment of principal and
interest on a Mortgage Loan which is payable by a Mortgagor under the related
Mortgage Note.
MORTGAGE: The mortgage, deed of trust, deed to secure debt, or other
instrument creating a first lien on or first priority ownership interest in an
estate in fee simple in real property securing a Mortgage Note.
MORTGAGE FILE: The contents of each Mortgage File pertaining to a
particular Mortgage Loan.
MORTGAGE LOANS: Such of the mortgage loans identified in Schedule A
hereto.
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MORTGAGE LOAN SCHEDULE: The schedule of Mortgage Loans attached hereto
as Schedule A, such schedule identifying each Mortgage Loan by city and state of
the Mortgaged Property, the servicer code and the name of the Mortgagor and
setting forth as to each Mortgage Loan the type, its principal balance as of the
close of business on the Cut-off Date (after deducting any payment of principal
due on or before such date), loan number and borrower's name.
MORTGAGE NOTE: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
MORTGAGED PROPERTY: The property securing a Mortgage Note.
MORTGAGOR: The obligor on a Mortgage Note.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
RECORD DATE: The close of business of the last Business Day of the
month preceding the month of the related Remittance Date.
REMITTANCE DATE: The 5th day of every consecutive month, beginning on
the First Remittance Date, or if such 5th day is not on a Business Day, the
first Business Day thereafter.
SERVICERS: The various Servicers which currently service the Mortgage
Loans pursuant to Servicing Agreements.
SERVICING ACCOUNTS: The account or accounts established pursuant to
Section 2.06 of this Agreement.
SERVICING AGREEMENTS: Various Servicing Agreements between the Owner
and Servicers providing terms for the servicing of particular Mortgage Loans.
SERVICING FEE: The Servicing Fee payable to the Servicer shall be fee
as set forth in the respective Servicing Agreement.
SERVICERS' REMITTANCE DATE: The Business Day prior to each Remittance
Date or as otherwise may be provided in the Servicing Agreements.
ARTICLE II
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 2.01. Interim Servicer to Act as Interim Servicer. Acting
itself or through the Servicers as provided in Section 2.02, the Interim
Servicer shall service and administer the Mortgage Loans on the Owner's behalf,
in accordance with this Agreement and the Mortgage Loans which such services
shall consist of collecting and remitting collected funds consisting of all
amounts due and owing under the Mortgage Loans including without limitation
principal, interest, taxes and insurance with regard to each Mortgage Loan and
providing periodic reports and other information to Owner as provided elsewhere
herein. In carrying out its duties, the Interim Servicer shall exercise the same
care it customarily employs and exercises in servicing and administering
Mortgage Loans for its own account which shall be consistent with accepted
mortgage servicing practices of prudent lending institutions with regard to the
services being performed hereunder ("Accepted Servicing Practices"). The Interim
Servicer, in its sole discretion, may and is hereby authorized to perform any of
its servicing responsibilities through such servicing institutions or
organizations, with which it has, prior to the date hereof, executed contracts
to perform servicing duties on its behalf with respect to the Mortgage Loans or
any particular Mortgage Loan, and such designee shall have all
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the rights and powers of the Interim Servicer with respect to such Mortgage
Loans under this Agreement to the extent provided in any Servicing Agreement,
but the Interim Servicer shall not thereby be released from any of its
obligations in this Agreement. Notwithstanding the foregoing, the Interim
Servicer shall not enter into any agreements subsequent to the date hereof with
a servicing institution or organization to perform any of its services
hereunder.
The Owner shall furnish the Interim Servicer with any powers of
attorney and other documents necessary or appropriate to enable the Interim
Servicer or its designee to carry out its servicing and administrative duties
hereunder.
SECTION 2.02. Servicing Agreements Between the Owner and the Servicers;
Enforcement of Other Agreements.
(a) The Owner is a party to the Servicing Agreements with the Servicers
for the servicing and administration of the Mortgage Loans.
(b) As part of its servicing activities hereunder, the Interim
Servicer, for the benefit of the Owner, shall use Accepted Servicing Practices
to enforce the obligations of the Servicers under the Servicing Agreements,
including, without limitation, any obligation to remit amounts in the Servicing
Accounts to the Interim Servicer for deposit into the Certificate Account on
each Servicers' Remittance Date and to have the Servicers make advances in
respect of delinquent payments if so required. In addition, Interim Servicer
shall forward to Owner reports or other information received by Interim Servicer
from Servicers with respect to any Mortgage Loan.
SECTION 2.03. Liability of the Interim Servicer. Except where
explicitly stated otherwise, the Interim Servicer's responsibility as Interim
Servicer shall be limited to using commercially reasonable efforts to enforce
the terms of the Servicing Agreements. The Interim Servicer shall not be liable
for any action or failure to act on the part of any of the Servicers but shall
remain responsible for the servicing of the Mortgage Loans. The Interim Servicer
shall be entitled to enter into any agreements with the Servicers, for
indemnification of the Interim Servicer by such Person and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
SECTION 2.04. Collection of Certain Mortgage Loan Payments. The Interim
Servicer shall use commercially reasonable efforts to cause the Servicers to
collect all payments called for under the terms and provisions of the Mortgage
Loans in accordance with Accepted Servicing Practices.
SECTION 2.05. Servicing Accounts. Pursuant to the Servicing Agreements,
each Servicer shall be required to establish and maintain one or more Servicing
Accounts (collectively, the "Servicing Accounts"). The Servicer is required to
deposit into the Servicing Account all funds received by them with respect to
the Mortgage Loans less any amount which the Servicers are permitted to retain
pursuant to the Servicing Agreements. On each Servicer Remittance Date, the
Servicer is required to remit from the Servicing Account to the Interim Servicer
the scheduled servicer remittance plus all other amounts with respect to the
Mortgage Loans deposited by the Servicer into the Servicing Account as of the
Servicer Remittance Date which amount shall be deposited by the Interim Servicer
into the Certificate Account.
SECTION 2.06. Establishment of Certificate Account; Deposits in
Certificate Account. The Interim Servicer shall segregate and hold all funds
collected and received pursuant to each Mortgage Loan separate and apart from
any of its own funds and general assets and shall establish and maintain one or
more Certificate Accounts, which shall be trust accounts (collectively, the
"Certificate Account"), titled the "Xxxx Xxxxx Asset Management Company, as
Interim Servicer in trust for JANY Commercial Mortgage Loans", the "Xxxx Xxxxx
Asset Management Company, as Interim Servicer in trust for JANY Residential
Mortgage Loans" , the "Xxxx Xxxxx Asset Management Company, as Interim Servicer
in trust for SunAmerica Life Commercial Mortgage Loans" and the "Xxxx Xxxxx
Asset Management Company, as Interim Servicer in trust for SunAmerica Life
Residential Mortgage Loans", respectively. Such Certificate Accounts shall be
established with an investment grade bank. The Certificate Account shall be
insured by the Federal Deposit Insurance Corporation. The creation of any
Certificate Account shall be evidenced
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by a letter agreement in the form of Exhibit One hereto. A copy of such letter
agreement shall be furnished to the Owner. The Interim Servicer shall not close
or move the Certificate Account without the prior written consent of the Owner.
The Interim Servicer shall deposit in the Certificate Account upon
receipt, net of the Interim Servicing Fees, and retain therein the following
payments and collections received by it subsequent to the Cut-off Date (other
than in respect of principal and interest on the Mortgage Loans due on or before
the Cut-off Date) all funds collected by the Interim Servicer in connection with
the Mortgage Loans (other than amounts to be deposited in the Escrow Accounts)
including without limitation:
(i) all payments on account of principal, including
principal prepayments on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage
Loans;
(iii) all proceeds received by the Interim Servicer under
any title, hazard or other insurance policy, other
than proceeds to be held in the Escrow Account and
applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance
with the Interim Servicer's normal servicing
procedures; and
(iv) all awards or settlements in respect of condemnation
proceedings or eminent domain affecting any Mortgaged
Property which are not released to the Mortgagor in
accordance with the Interim Servicer's normal
servicing procedures.
SECTION 2.07. Permitted Withdrawals From the Certificate Account. The
Interim Servicer may, from time to time, withdraw funds from the Certificate
Account for the following purposes:
(i) to make payments to the Owner in the amounts and in
the manner provided for in Section 3.01 of this
Agreement;
(ii) to reimburse itself for unpaid Interim Servicing
Fees; or
(iii) to clear and terminate the Certificate Account upon
the termination of this Agreement.
SECTION 2.08. Establishment of Escrow Account; Deposits in Escrow
Account. (a) On direct serviced loans, the Interim Servicer shall segregate and
hold all funds collected and received pursuant to each Mortgage Loan which
constitute Escrow Payments separate and apart from any of its own funds and
general assets and shall establish and maintain a JANY commercial-mortgage loan
escrow account, a JANY residential-mortgage loan escrow account, a SunAmerica
commercial-mortgage loan escrow account and a SunAmerica residential-mortgage
loan escrow account (collectively, the "Escrow Accounts"), which shall be trust
accounts, titled "Xxxx Xxxxx Asset Management Company, as Interim Servicer in
trust for JANY Commercial Mortgage Loans", the "Xxxx Xxxxx Asset Management
Company, as Interim Servicer in trust for JANY Residential Mortgage Loans" , the
"Xxxx Xxxxx Asset Management Company, as Interim Servicer in trust for
SunAmerica Life Commercial Mortgage Loans" and the "Xxxx Xxxxx Asset Management
Company, as Interim Servicer in trust for SunAmerica Life Residential Mortgage
Loans", respectively. The Escrow Accounts shall be established with an
investment grade commercial bank. The Escrow Accounts shall be insured by the
Federal Deposit Insurance Corporation. The creation of any Escrow Accounts shall
be evidenced by a letter agreement in the form of Exhibit "Two" hereto. A copy
of such certification or letter agreement shall be furnished to the Owner. The
Interim Servicer shall not close or move the Escrow Accounts without the prior
written consent of the Owner.
The Interim Servicer, on direct serviced loans, shall deposit in the
Escrow Accounts upon receipt, and retain therein: (i) all Escrow Payments
collected on account of the Mortgage Loans, for the purpose of effecting timely
payment of any such items as required under the terms of this Agreement, and
(ii) all amounts representing proceeds
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of any hazard insurance policy which are to be applied to the restoration or
repair of any Mortgaged Property. The Interim Servicer shall make withdrawals
therefrom only in accordance with Section 2.09 hereof.
(b) The Interim Servicer may invest all or a portion of the funds in
the Escrow Accounts in interest bearing accounts. The Interim Servicer shall
receive as additional compensation all income and gain realized from any such
interest bearing accounts. If any principal losses are incurred in respect of
any such interest bearing accounts, the Interim Servicer shall reimburse and
restore to the Escrow Accounts the amount of any such principal losses out of
the Interim Servicer's own funds immediately as realized. Notwithstanding the
foregoing, the Interim Servicer's right to invest funds in the Escrow Accounts
shall in no way limit the rights of the Interim Servicer to be compensated for
its services as provided in this Agreement.
SECTION 2.09. Permitted Withdrawals From Escrow Accounts. On direct
serviced Mortgage Loans withdrawals from the Escrow Accounts established under
Section 2.08 may be made by the Interim Servicer as the case may be, only (a) to
effect timely payments of ground rents, taxes, assessments, water rates,
mortgage insurance premiums, fire and hazard insurance premiums or other items
constituting Escrow Payments for the related Mortgage Loan, (b) to refund to any
Mortgagor any funds found to be in excess of the amounts required under the
terms of the related Mortgage Loan, (c) for transfer to the Certificate Account
in accordance with the terms of the related Mortgage Loan, (d) for application
to restoration or repair of the Mortgaged Property, (e) to pay to the Mortgagor,
to the extent required by law, any interest paid on the funds deposited in the
Escrow Accounts, or (f) to clear and terminate the Escrow Accounts upon the
termination of this Agreement.
SECTION 2.10. Payment of Taxes and Insurance. On direct serviced
Mortgage Loans, the Interim Servicer shall maintain accurate records reflecting
the status of, taxes and hazard insurance coverage and shall obtain, from time
to time, all bills for the of such charges. To the extent that a Mortgage does
not provide for Escrow s, the Interim Servicer shall use commercially reasonable
efforts in accordance with Accepted Servicing Practices to determine that any
such payments are made by the Mortgagor at the time they first become due. The
Interim Servicer shall make reasonable efforts in accordance with Accepted
Servicing Practices to cause any Servicer to maintain records concerning real
estate taxes and insurance premiums.
SECTION 2.11. Maintenance of Hazard Insurance. The Interim Servicer
shall use its reasonable efforts in accordance with Accepted Servicing Practices
to cause each Servicer to maintain for each Mortgage Loan fire and hazard
insurance with extended coverage customary in the area where the Mortgaged
Property is located, in an amount which is at least equal to the outstanding
principal balance owing on the Mortgage Loan or the full insurable value of the
improvements securing the Mortgage Loan, whichever is less. For direct serviced
loans, Interim Servicer will use its reasonable efforts in accordance with
Accepted Servicing Practices to cause Mortgagors to carry the above described
insurance.
SECTION 2.12. Delinquent Payments on Mortgage Loans. In the event that
any payment due under any Mortgage Loan is not paid when the same becomes due
and payable and such failure continues beyond any applicable grace period, the
Interim Servicer shall notify the Owner of such failure on the monthly
remittance report. The Interim Servicer shall have no obligation to foreclose
upon or otherwise take title, in the name of the Owner, to Mortgaged Property
for any Mortgage Loan which is in default. Also, the Interim Servicer shall have
no obligation to advance to the Owner any defaulted payments of principal and
interest with respect to any such defaulted Mortgage Loans.
SECTION 2.13. Servicing Compensation. As compensation for its services
hereunder, the Interim Servicer shall be entitled to withdraw from the
Certificate Account or otherwise deduct from each Monthly Payment on a Mortgage
Loan an Interim Servicing Fee which shall be 1/8% per loan annualized and
collected monthly for each Mortgage Loan being serviced hereunder for the first
ninety days of servicing and thereafter 1/4% per loan annualized and collected
monthly for each Mortgage Loan being serviced hereunder from the Certificate
Account from the payments on account of the specified Mortgage Loan as provided
for in this Agreement but only in the manner contemplated in the definition of
Interim Servicing Fee.
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SECTION 2.14. Records; Access to Certain Documentation and Information
Regarding the Mortgage Loans.
(a) The Interim Servicer shall maintain records with respect to each
Mortgage Loan which shall be clearly marked to show either SunAmerica or JANY as
the owner of the Mortgage Loan, whether the Mortgage Loan is a residential
Mortgage Loan or a commercial Mortgage Loan, the address of the mortgaged
premises, and the name and address of the current Mortgagor. The Interim
Servicer shall also maintain a file of legal notices, correspondence, forms,
reports and notes of conversations with the Mortgagor and its representatives
relating to the Mortgage Loans received on or after March 31, 1997.
(b) The Interim Servicer shall provide access to the Owner to examine
and audit the Mortgage Files and other books, records or information of the
Interim Servicer with respect to this Agreement and the Mortgage Loans, such
access to be afforded without charge but only upon reasonable request and during
normal business hours at the offices of the Interim Servicer designated by it at
all times. All such Mortgage Files and other books, records, or information with
respect to the Mortgage Loans shall at all times be the property of the Owner.
SECTION 2.15. Satisfaction of Mortgages. Upon the payment in full of
any Mortgage Loan, or the receipt by the Servicers or Interim Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Interim Servicer shall contact the Owner to procure, with
respect to the mortgage, which secured the Mortgage Note, a satisfaction or
release of the Mortgage covering the property.
SECTION 2.16. Limitation of Servicer's Authority.
(a) The Interim Servicer shall not, at any time, waive or consent to a
postponement of compliance on the part of any Mortgagor with any material term
or provision of any Note or Mortgage or in any other manner grant a material
indulgence to any Mortgagor without prior approval by the Owner.
(b) The Interim Servicer shall not, at any time, take any action with
respect to any existing or proposed lease or tenancy affecting any Mortgaged
Property or waive or consent to a postponement of compliance on the part of any
tenant with any material term or provision of its lease or in any other manner
grant a material indulgence to a tenant under a lease, without prior approval of
the Owner.
(c) Owner reserves to itself the right to accept prepayments, in whole
or in part, of a Mortgage Loan whether or not any such prepayments are permitted
under the terms of the Mortgage Loan documents, and in connection therewith to
waive any prepayment charge, premium or penalty required by the Mortgage Loan
documents. Any such prepayment charge, premium or penalty actually collected by
the Interim Servicer shall be deposited in the Certificate Account and remitted
to the Owner.
SECTION 2.17. Fidelity Bond and Errors Omissions.
The Interim Servicer agrees to obtain and maintain at its expense and
shall keep in full force and effect throughout the term of this Agreement, a
blanket fidelity bond and an errors and omissions insurance policy covering its
officers and employees and other persons acting on its behalf in connection with
the servicing activities hereunder. The amount of coverage shall be at least
equal to the coverage that prudent mortgage loan servicers having servicing
portfolios of a similar size. In the event that any such bond or policy ceases
to be in effect, the Interim Servicer agrees to obtain a comparable replacement
bond or policy with equivalent coverage. No provision of this Section 2.17 shall
operate to diminish or restrict or otherwise impair the Interim Servicer's
responsibilities and obligations set forth in this Agreement. The Interim
Servicer shall use commercially reasonable efforts in accordance with Accepted
Servicing Practices to cause the Servicers to maintain comparable coverage as
provided by this Section 2.17.
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ARTICLE III
PAYMENTS; STATEMENTS AND REPORTS
SECTION 3.01. Distributions.
(a) On each Remittance Date, the Interim Servicer shall distribute to
the Owner, from the funds on deposit in the Certificate Account, an amount equal
to the cash held on deposit in the Certificate Account as of the close of
business on the Determination Date, minus amounts due, reimbursable and or
payable to the Interim Servicer for Interim Servicing Fees on such Determination
Date.
(b) All distributions made to the Owner on each Remittance Date shall
be made by four separate wire transfers of immediately available funds
representing distributions relating to JANY-owned commercial Mortgage Loans,
JANY-owned residential Mortgage Loans, SunAmerica-owned residential Mortgage
Loans and SumAmerica-owned commercial Mortgage Loans in accordance with written
wiring instructions to be provided to the Interim Servicer by Owner.
(c) Any and all payments including, without limitation, principal,
interest, taxes and insurance relating to a Mortgage Loan described on Schedule
A hereto, collected by the Interim Servicer after the termination of this
Agreement with respect to a particular Mortgage Loan or Mortgage Loans, shall be
remitted to Owner, or its designee at the written direction of Owner, on the
15th and 25th days of the months in which such payments are received. Interim
Servicer shall not be entitled to Interim Servicing Fees in connection with any
such payments collected.
SECTION 3.02. Statements to the Owner. Upon each Remittance Date, the
Interim Servicer will furnish to the Owner a statement representing
distributions relating to JANY-owned commercial Mortgage Loans, JANY- owned
residential Mortgage Loans, SunAmerica-owned Residential Mortgage Loans and
SumAmerica-owned Commercial Mortgage Loans setting forth the following
information with respect to each such Mortgage Loan;
(i) the amount of such remittance allocable to principal
(including a separate breakdown of any principal
prepayments, including the date of such prepayment,
and any prepayment penalties or premiums, if any);
(ii) the amount of such distribution allocable to
interest;
(iii) the amount of servicing compensation withheld by the
Interim Servicer during the Due Period;
(iv) the principal balance of each Mortgage Loan and all
of the Mortgage Loans at the close of business on the
applicable Determination Date after giving effect to
payments received on the Mortgage Loans;
(v) the number and aggregate principal balances of each
Mortgage Loan and the Mortgage Loans delinquent (a)
30 days, (b) 60 days, and (c) 90 days or more; and
(vi) any statement, report or other information received
from Servicers relating to the Mortgage Loans.
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ARTICLE IV
LIABILITY OF THE INTERIM SERVICER
SECTION 4.01. Limitation on Liability of the Interim Servicer and
Others. The Interim Servicer and any director, officer, employee or agent of the
Interim Servicer may rely on any document of any kind which it in good faith
reasonably believes to be genuine and to have been adopted or signed by the
proper authorities respecting any matters arising hereunder. The Interim
Servicer shall have no obligation to appear with respect to, prosecute or defend
any legal action which is not incidental to the Interim Servicer's obligations,
representations, covenants, duties, warranties or representations made, assumed,
or imposed by, or on it, under this Agreement, or otherwise to service the
Mortgage Loans in accordance with this Agreement.
SECTION 4.02. Indemnification. The Interim Servicer shall indemnify the
Owner and hold the Owner harmless against any and all claims, penalties, fines,
reasonable legal fees and related costs and expenses and any other reasonable
fees and expenses that Owner may sustain as a result of the failure of the
Interim Servicer to perform its duties in accordance with the terms of this
Agreement. The Owner shall indemnify the Interim Servicer and hold the Interim
Servicer harmless against any and all claims, penalties, fines, reasonable legal
fees and related costs and expenses and any other reasonable fees and expenses
that the Interim Servicer may sustain as a result of its action pursuant to the
terms hereunder other than such claims, penalties, fines, reasonable legal fees
and related costs and expenses and any other reasonable fees and expenses that
the Interim Servicer may sustain as a result of the failure of the Interim
Servicer to perform its duties in accordance with the terms of this Agreement.
ARTICLE V
DEFAULT
SECTION 5.01. Events of Default. In case one or more of the following
Events of Default by the Interim Servicer shall occur and be continuing, that is
to say:
(i) any failure by the Interim Servicer to distribute to
the Owner any required to be made under the terms of
this Agreement within three (3) days of its due date;
or
(ii) any failure on the part of the Interim Servicer duly
to observe or perform in any material respect any
other of the covenants or agreements on the part of
the Interim Servicer in this Agreement, which remains
unremedied for a period of thirty (30) days after the
date on which written notice of such failure,
requiring the same to be remedied, shall have been
given to the Interim Servicer by the Owner; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the
appointment of a conservator or receiver or
liquidation in any insolvency, readjustment or 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
Interim Servicer and such decree or order shall have
remained in force undischarged or unstayed for a
period of thirty (30) days; or
(iv) the Interim Servicer shall consent to the appointment
of a conservator or receiver or liquidator or
liquidating committee in any insolvency, readjustment
of debt, marshalling of assets and liabilities
voluntary liquidation or similar proceedings of or
relating to the Interim Servicer or of or relating to
all or substantially all of its property; or
(v) the Interim 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
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reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend of
its obligations.
then, and in each and every such case, in addition to whatever rights the
Interim Servicer or the Owner may have at law or in equity to damages, including
injunctive relief and specific performance, the Owner, by notice in writing to
the Interim Servicer may terminate all of the rights and obligations of the
Interim Servicer as Servicer of the Mortgage Loans under this Agreement, as a
result of such Event of Default, but without prejudice to any rights it may
have. On or after the receipt by the Interim Servicer of such written notice,
all authority and power of the Interim Servicer under this Agreement, whether
with respect to the Mortgage Loans or otherwise, shall pass to and be vested in
the successor Servicer appointed by the Owner pursuant to and under this
Section, the successor servicer is hereby authorized and empowered to execute
and deliver, on behalf of the Interim 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. The Interim Servicer agrees to cooperate with the Owner
and any successor servicer in effecting the termination of the Interim
Servicer's responsibilities, and rights hereunder and shall promptly provide the
successor servicer all documents and records reasonably requested by it to
enable it to assume the Interim Servicer's functions hereunder and shall
promptly also transfer to the successor servicer all amounts which then have
been or should have been deposited in the Certificate Account by the Interim
Servicer or which are thereafter received with respect to the Mortgage Loans.
ARTICLE VI
TERMINATION
SECTION 6.01. Termination. (a) During the first sixty days after the
execution of this Agreement, the Owner as of right may terminate this Agreement
as to all or any number of the Mortgage Loans, with or without cause, upon
written notice to the Interim Servicer, which notice shall be given no later
than thirty (30) days prior to the effective date of such termination.
Thereafter, the Owner as of right may terminate this Agreement as to all or any
number of the Mortgage Loans, with or without cause, upon written notice to the
Interim Servicer, which notice shall be given no later than ten (10) days prior
to the effective date of such termination.
(b) In the event that notice of termination of this Agreement is given,
the Interim Servicer covenants that all funds, documents, mortgage servicing
files, books, papers and accounts relating to the Mortgage Loans shall, at the
option of the Owner, immediately upon receipt of notice of termination, be
submitted to the control of the Owner or the Owner's designee and that, on the
date of termination, they will be transferred to the Owner or the Owner's
designee, without prejudice to the rights, if any, of either party against the
other. Any breach of this covenant shall be restrainable by injunction.
(c) From and after the effective date of termination of this Agreement
pursuant to any provision of this Agreement, the Interim Servicer shall be
relieved of further responsibility in connection with servicing the Mortgage
Loans except as provided in Section 3.01(c) hereof which Section survives
termination of this Agreement. The Interim Servicer forthwith upon such
termination (i) shall pay over to the Owner or its designee all monies collected
and held by it pursuant to this Agreement or pursuant to any agreement, letter
or arrangement relating to the Mortgage Loans less any unpaid Interim Servicing
Fees and expenses due the Interim Servicer pursuant to this Agreement, (ii)
shall deliver to the Owner a full accounting, including a statement showing the
payments collected by it and a statement of monies held in trust by it for the
payment of taxes, insurance premiums or other charges with respect to the
Mortgage Loans, and (iii) otherwise use its best efforts to effect the orderly
and efficient transfer of servicing to a new servicer selected by the Owner, or
the Owner.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Amendment. This Agreement may be amended from time to time
only by the mutual consent of the Interim Servicer and the Owner.
SECTION 7.02. 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 7.03. Reports; Notices. Unless requested not to do so by Owner,
the Interim Servicer will furnish Owner with copies of all communications sent
to or received from Mortgagors with respect to a Mortgage Loan concerning
refinancing, subordinate financing, transfers of mortgaged premises or
prepayment. In addition, the Interim Servicer shall provide to Owner such
periodic, special or other reports or information, whether or not specifically
provided for in this Agreement as Owner shall reasonably request and which the
Interim Servicer prepares and keeps in the ordinary course of its business or
which may be generated by the Interim Servicer's data processing system without
special programming or computer time. Any data and reports requested by Owner
which are not kept by the Interim Servicer in the ordinary course of its
business or which cannot be generated by the Interim Servicer's data processing
system without special programming or computer time, shall be provided to Owner
on request at Owner's cost and expense provided such request does not materially
disrupt the Interim Servicer's normal business activities.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by registered mail to (i) in the case of the Interim Servicer, 0000 Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, Attention: General Counsel or such other
address as may hereafter be furnished to the Owner in writing by the Interim
Servicer with a duplicate copy to Servicing Manager, and (ii) in the case of the
Owner, SunAmerica Life Insurance Company, 0 XxxXxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000, or such other address as may hereafter be
furnished to the Interim Servicer in writing by the Owner. Any notice required
or permitted to be mailed shall be given by first class mail, postage prepaid,
at the address shown above. Any notice mailed or transmitted within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the addressee receives such notice, provided, however,
that any demand, notice or communication to or upon the Interim Servicer shall
not be effective until received.
SECTION 7.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions of
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 or the rights of the
holders thereof.
SECTION 7.05. No Partnership. Nothing herein contained shall be deemed
or construed to create a co-partnership or joint venture between the parties
hereto.
SECTION 7.06. Execution; Successors and Assigns. This Agreement may be
executed in one or more counterparts and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed to be an
original; such counterparts, together, shall constitute one and the same
agreement. This Agreement shall inure to the benefit of and be binding upon all
parties hereto, and their respective successors and assigns.
SECTION 7.07. Attorney's Fees. In the event any party hereto brings an
action to interpret or enforce any of the provisions of the Agreement, the party
against whom judgement is rendered in such action shall be liable to the others
for reimbursement of their costs, expenses and reasonable attorney's fees,
including such costs, expenses and fees as may be incurred on appeal.
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SECTION 7.08. Entire Agreement. The Agreement constitutes the entire
agreement between the parties regarding the interim servicing of Mortgage Loans
and shall supersede any prior or contemporaneous writings or oral agreements
with respect to the transactions contemplated hereby.
SECTION 7.09. Headings. Section headings are for reference only, and
shall not affect the interpretation or meaning of any provision of the
Agreement.
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IN WITNESS WHEREOF, the Interim Servicer and the Owner have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
XXXX XXXXX ASSET MANAGEMENT COMPANY
as Interim Servicer
By: /s/Xxxxx X. Xxxxxxx
------------------------------------
Title: Senior Vice President and Chief
Financial Officer
SUNAMERICA LIFE INSURANCE COMPANY
as Owner
By: /s/Xxxxx X. Xxxxxx
------------------------------------
Title: Senior Vice President
XXXX XXXXX LIFE INSURANCE COMPANY OF NEW
YORK
as Owner
By: /s/Xxxxx X. Xxxxxx
------------------------------------
Title: Senior Vice President
13
00
XXXXX XX XXX XXXX)
XXXXXX XX XXX XXXX)
Xx this 31st day of March, 1997, before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxxxxx personally known to me on the
basis of satisfactory evidence) to be the person who executed the within
instrument as Senior Vice President and Chief Financial Officer on behalf of
Xxxx Xxxxx Asset Management Company, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
------------------------------
NOTARY PUBLIC
In and for the State of New York
14
00
XXXXX XX XXX XXXX)
XXXXXX XX XXX XXXX)
Xx this 31st day of March, 1997, before me, a notary public in and for said
State, personally appeared Xxxxx X. Xxxxxx personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Senior Vice President on behalf of SunAmerica Life
Insurance Company, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
------------------------------
NOTARY PUBLIC
In and for the State of New York
15
00
XXXXX XX XXX XXXX)
XXXXXX XX XXX XXXX)
Xx this 31st day of March, 1997, before me, a notary public in and for said
State, personally appeared Xxxxx X. Xxxxxx personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Senior Vice President on behalf of Xxxx Xxxxx Life
Insurance Company of New York, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
------------------------------
NOTARY PUBLIC
In and for the State of New York
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EXHIBIT ONE
CERTIFICATE ACCOUNT LETTER AGREEMENT
[FORM FOR SUNAMERICA]
______________, 19___
To:______________________________
______________________________
______________________________
(the "Depository")
As "Interim Servicer" under the Interim Servicing Agreement, dated as of
March 31, 1997 (the "Agreement"), we hereby authorize and request you to
establish an account, as a Certificate Account pursuant to Section 2.06 of the
Agreement, to be designated as "Xxxx Xxxxx Asset Management Company, as Interim
Servicer, in trust for SunAmerica Life Insurance Company." All deposits in the
account shall be subject to withdrawal therefrom by order signed by the Interim
Servicer. You may refuse any deposit which would result in violation of the
requirement that the account be fully insured as described below. This letter is
submitted to you in duplicate. Please execute and return one original to us.
______________________________
By: __________________________
The undersigned, as "Depository", hereby certifies that the above
described account has been established under Account Number _________________,
at the office of the depository indicated above, and agrees to honor withdrawals
on such account as provided above. The account will be insured by the Bank
Insurance Fund, or the Savings Association Insurance Fund.
________________________________
(name of Depository)
By______________________________
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EXHIBIT ONE
CERTIFICATE ACCOUNT LETTER AGREEMENT
[FORM FOR JANY]
______________, 19___
To:______________________________
______________________________
______________________________
(the "Depository")
As "Interim Servicer" under the Interim Servicing Agreement, dated as of
March 31, 1997 (the "Agreement"), we hereby authorize and request you to
establish an account, as a Certificate Account pursuant to Section 2.06 of the
Agreement, to be designated as "Xxxx Xxxxx Asset Management Company, as Interim
Servicer, in trust for Xxxx Xxxxx Life Insurance Company of New York." All
deposits in the account shall be subject to withdrawal therefrom by order signed
by the Interim Servicer. You may refuse any deposit which would result in
violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
______________________________
By: __________________________
The undersigned, as "Depository", hereby certifies that the above
described account has been established under Account Number _________________,
at the office of the depository indicated above, and agrees to honor withdrawals
on such account as provided above. The account will be insured by the Federal
Deposit Insurance Corporation.
________________________________
(name of Depository)
By______________________________
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EXHIBIT TWO
ESCROW ACCOUNT LETTER AGREEMENT
_____________, 19___
To:_________________________
_________________________
_________________________
(the "Depository")
As "Interim Servicer" under the Interim Servicing Agreement, dated as of
March 31, 1997 (the "Agreement"), we hereby authorize and request you to
establish an account, as an Escrow Account pursuant to Section 2.08 of the
Agreement, to be designated as "Xxxx Xxxxx Asset Management Company, as Interim
Servicer, in trust for SunAmerica Life Insurance Company. All deposits in the
account shall be subject to withdrawal therefrom by order signed by the Company.
You may refuse any deposit which would result in violation of the requirement
that the account be fully insured as described below. This letter is submitted
to you in duplicate. Please execute and return one original to us.
______________________________
By: __________________________
The undersigned, as "Depository", hereby certifies that the above
described account has been established under Account Number _________________,
at the office of the depository indicated above, and agrees to honor withdrawals
on such account as provided above. The account will be insured by the Federal
Deposit Insurance Corporation.
_______________________________
(name of Depository)
By: ___________________________
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