<PAGE>
- --------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event
reported) June 27, 1996
-------------
J.P. Morgan Commercial Mortgage Finance Corp.
------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
Delaware 333-4554 13-3789046
- ---------------------------- ------------ ------------------
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
60 Wall Street
New York, New York 10260
-------------------------------
(Address of Principal Executive
Offices and Zip Code)
Registrant's telephone number, including area code (212) 648-3636
--------------
- ------------------------------------------------------------------------------
<PAGE>
Item 5. Other Events
- ---- ------------
Filing of Marketing Materials.
- -----------------------------
On June 1, 1996, J.P. Morgan Commercial Mortgage Finance Corp. (the
"Company") entered into a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), by and among the Company, as depositor, Banc One
Management and Consulting Corporation, as master servicer and special
servicer, and State Street Bank and Trust Company, as the trustee. The
Pooling and Servicing Agreement is annexed hereto as Exhibit 99.
2
<PAGE>
Item 7. Financial Statements, Pro Forma Financial
- ---- -----------------------------------------
Information and Exhibits.
------------------------
(a) Not applicable
(b) Not applicable
(c) Exhibits.
The following is filed herewith. The exhibit number corresponds with
Item 601(b) of Regulation S-K.
Exhibit No. Description
----------- -----------
99 Pooling and Servicing Agreement
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
J.P. MORGAN COMMERCIAL MORTGAGE
FINANCE CORP.
By: /s/ MICHAEL A. JUNGMAN
--------------------------
Name: Michael A. Jungman
Title: President
Dated: July 10, 1996
4
<PAGE>
Exhibit Index
-------------
Exhibit Page
- ------- ----
99. Pooling and Servicing Agreement 6
5
<PAGE>
EXHIBIT 99
EXECUTION COPY
J. P. MORGAN COMMERCIAL MORTGAGE FINANCE CORP.,
Depositor
and
BANC ONE MANAGEMENT AND CONSULTING CORPORATION,
Master Servicer and Special Servicer
and
STATE STREET BANK AND TRUST COMPANY,
Trustee and Extension Advisor
________________________________
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1996
________________________________
$400,935,989
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-C3
1
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms . . . . . . . . . . . . . . . . . . . . 3
Accepted Servicing Practices . . . . . . . . . . . . . . . . . 3
Accepted Special Servicing Practices . . . . . . . . . . . . . 3
Acquisition Date . . . . . . . . . . . . . . . . . . . . . . . 4
Adjusted Available Distribution Amount . . . . . . . . . . . . 4
Adjusted Collateral Value . . . . . . . . . . . . . . . . . . . 4
Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Advance Rate . . . . . . . . . . . . . . . . . . . . . . . . . 5
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Asset Strategy Report . . . . . . . . . . . . . . . . . . . . . 5
Assignment of Leases and Rents . . . . . . . . . . . . . . . . 5
Assignment of Mortgage . . . . . . . . . . . . . . . . . . . . 5
Assumed Final Distribution Date . . . . . . . . . . . . . . . . 5
Available Distribution Amount . . . . . . . . . . . . . . . . . 5
Balloon Mortgage Loan . . . . . . . . . . . . . . . . . . . . . 6
Balloon Payment . . . . . . . . . . . . . . . . . . . . . . . . 6
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . 6
Book-Entry Certificate . . . . . . . . . . . . . . . . . . . . 6
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . 6
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Certificate Account . . . . . . . . . . . . . . . . . . . . . . 6
Certificate Balance . . . . . . . . . . . . . . . . . . . . . . 6
Certificateholder" or "Holder . . . . . . . . . . . . . . . . . 6
Certificate Owner . . . . . . . . . . . . . . . . . . . . . . . 7
Certificate Register" and "Certificate Registrar . . . . . . . 7
Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Class A1 Certificate . . . . . . . . . . . . . . . . . . . . . 7
Class A1X Certificate . . . . . . . . . . . . . . . . . . . . . 7
Class A2 Certificate . . . . . . . . . . . . . . . . . . . . . 7
Class A2X Certificate . . . . . . . . . . . . . . . . . . . . . 7
Class B Certificate . . . . . . . . . . . . . . . . . . . . . . 7
Class BCX Certificate . . . . . . . . . . . . . . . . . . . . . 7
Class BCX component B . . . . . . . . . . . . . . . . . . . . . 7
1
<PAGE>
Class BCX component C . . . . . . . . . . . . . . . . . . . . . 7
Class Balance . . . . . . . . . . . . . . . . . . . . . . . . . 8
Class C Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Class D Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Class E Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Class F Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Class G Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Class NR Certificate . . . . . . . . . . . . . . . . . . . . . 8
Class R-I Certificate . . . . . . . . . . . . . . . . . . . . . 8
Class R-II Certificate . . . . . . . . . . . . . . . . . . . . 8
Class R-III Certificate . . . . . . . . . . . . . . . . . . . . 8
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Collateral Value Adjustment . . . . . . . . . . . . . . . . . . 8
Collateral Value Adjustment Event . . . . . . . . . . . . . . . 9
Collateral Value Adjustment Interest Amount . . . . . . . . . . 9
Collateral Value Adjustment Interest Recovery Amount . . . . . 9
Collateral Value Adjustment Recovery Amount . . . . . . . . . . 9
Collection Period . . . . . . . . . . . . . . . . . . . . . . . 9
Condemnation Proceeds . . . . . . . . . . . . . . . . . . . . . 10
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . 10
Crown Hotel Notes . . . . . . . . . . . . . . . . . . . . . . . 10
Crown Hotel Properties . . . . . . . . . . . . . . . . . . . . 10
Crown Participation . . . . . . . . . . . . . . . . . . . . . . 10
Crown Participation Agreement . . . . . . . . . . . . . . . . . 10
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Cut-off Date . . . . . . . . . . . . . . . . . . . . . . . . . 10
Cut-off Date Balance . . . . . . . . . . . . . . . . . . . . . 11
Defaulted Mortgage Loan . . . . . . . . . . . . . . . . . . . . 11
Deficient Valuation . . . . . . . . . . . . . . . . . . . . . . 11
Definitive Certificate . . . . . . . . . . . . . . . . . . . . 11
Delivery Date . . . . . . . . . . . . . . . . . . . . . . . . . 11
Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Depository Participant . . . . . . . . . . . . . . . . . . . . 11
Determination Date . . . . . . . . . . . . . . . . . . . . . . 11
Directing Certificateholder . . . . . . . . . . . . . . . . . . 11
Directly Operate . . . . . . . . . . . . . . . . . . . . . . . 12
Disqualified Organization . . . . . . . . . . . . . . . . . . . 12
Distribution Date . . . . . . . . . . . . . . . . . . . . . . . 12
Due Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Eligible Account . . . . . . . . . . . . . . . . . . . . . . . 12
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . 13
2
<PAGE>
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 14
Excess Condemnation Proceeds . . . . . . . . . . . . . . . . . 14
Excess Insurance Proceeds . . . . . . . . . . . . . . . . . . . 14
Extension Advisor . . . . . . . . . . . . . . . . . . . . . . . 14
FDIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Final Recovery Determination . . . . . . . . . . . . . . . . . 14
GMACCM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
GMACCM Mortgage Loans . . . . . . . . . . . . . . . . . . . . . 15
Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . 15
Independent . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Insurance Policy . . . . . . . . . . . . . . . . . . . . . . . 15
Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . 15
Interest Accrual Amount . . . . . . . . . . . . . . . . . . . . 15
Interest Distribution Amount . . . . . . . . . . . . . . . . . 15
Interested Person . . . . . . . . . . . . . . . . . . . . . . . 16
Liquidation Event . . . . . . . . . . . . . . . . . . . . . . . 16
Liquidation Proceeds . . . . . . . . . . . . . . . . . . . . . 16
Loan Sale Agreement . . . . . . . . . . . . . . . . . . . . . . 16
Loss Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . 16
Master Remittance Date . . . . . . . . . . . . . . . . . . . . 16
Master Servicer . . . . . . . . . . . . . . . . . . . . . . . . 16
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . 17
MGT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Modification . . . . . . . . . . . . . . . . . . . . . . . . . 17
Monitoring Certificateholder . . . . . . . . . . . . . . . . . 17
Monitoring Class . . . . . . . . . . . . . . . . . . . . . . . 17
Monthly Payment . . . . . . . . . . . . . . . . . . . . . . . . 17
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . . . 17
Mortgage Loan Documents . . . . . . . . . . . . . . . . . . . . 17
Mortgage Loan File . . . . . . . . . . . . . . . . . . . . . . 18
Mortgage Loan Purchase Agreement . . . . . . . . . . . . . . . 18
Mortgage Loan Schedule . . . . . . . . . . . . . . . . . . . . 18
Mortgage Note . . . . . . . . . . . . . . . . . . . . . . . . . 18
Mortgage Rate . . . . . . . . . . . . . . . . . . . . . . . . . 18
Mortgaged Property . . . . . . . . . . . . . . . . . . . . . . 18
Mortgagor . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Most Subordinate Class of Certificates . . . . . . . . . . . . 18
Net Prepayment Premium . . . . . . . . . . . . . . . . . . . . 18
Nonrecoverable Advance . . . . . . . . . . . . . . . . . . . . 19
Nonrecoverable Advance Certificate . . . . . . . . . . . . . . 19
Non-United States Person . . . . . . . . . . . . . . . . . . . 19
3
<PAGE>
Notional Amount . . . . . . . . . . . . . . . . . . . . . . . . 19
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 19
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 19
Original Class Balance . . . . . . . . . . . . . . . . . . . . 19
Originator . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Ownership Interest . . . . . . . . . . . . . . . . . . . . . . 20
P&I Advance . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Pass-Through Rate . . . . . . . . . . . . . . . . . . . . . . . 20
Percentage Interest . . . . . . . . . . . . . . . . . . . . . . 20
Permitted Investments . . . . . . . . . . . . . . . . . . . . . 20
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Prepayment Assumption . . . . . . . . . . . . . . . . . . . . . 21
Prepayment Interest Excess . . . . . . . . . . . . . . . . . . 21
Prepayment Interest Shortfall . . . . . . . . . . . . . . . . . 21
Prepayment Premium . . . . . . . . . . . . . . . . . . . . . . 22
Primary Remittance Date . . . . . . . . . . . . . . . . . . . . 22
Primary Servicer . . . . . . . . . . . . . . . . . . . . . . . 22
Prime Rate . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Principal Distribution Amount . . . . . . . . . . . . . . . . . 22
Principal Prepayment . . . . . . . . . . . . . . . . . . . . . 22
Property Improvement Expenses . . . . . . . . . . . . . . . . . 23
Property Protection Expenses . . . . . . . . . . . . . . . . . 23
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . 24
Qualified Insurer . . . . . . . . . . . . . . . . . . . . . . . 24
Rating Agency . . . . . . . . . . . . . . . . . . . . . . . . . 24
Realized Loss . . . . . . . . . . . . . . . . . . . . . . . . . 24
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 25
REMIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
REMIC I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
REMIC I Uncertificated Interests . . . . . . . . . . . . . . . 25
REMIC II . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
REMIC II Uncertificated Interests . . . . . . . . . . . . . . . 25
REMIC III . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
REMIC Provisions . . . . . . . . . . . . . . . . . . . . . . . 26
Remittance Period . . . . . . . . . . . . . . . . . . . . . . . 26
Remittance Rate . . . . . . . . . . . . . . . . . . . . . . . . 26
Rents from Real Property . . . . . . . . . . . . . . . . . . . 26
REO Account . . . . . . . . . . . . . . . . . . . . . . . . . . 26
REO Acquisition . . . . . . . . . . . . . . . . . . . . . . . . 26
REO Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . 26
REO Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 26
REO Property . . . . . . . . . . . . . . . . . . . . . . . . . 27
4
<PAGE>
REO Status Report . . . . . . . . . . . . . . . . . . . . . . . 27
Required Rating . . . . . . . . . . . . . . . . . . . . . . . . 27
Residual Certificate . . . . . . . . . . . . . . . . . . . . . 27
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 27
Security Agreement . . . . . . . . . . . . . . . . . . . . . . 27
Senior Certificates . . . . . . . . . . . . . . . . . . . . . . 27
Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Servicing Advance . . . . . . . . . . . . . . . . . . . . . . . 27
Servicing Agreement . . . . . . . . . . . . . . . . . . . . . . 28
Servicing Fee . . . . . . . . . . . . . . . . . . . . . . . . . 28
Servicing Fee Rate . . . . . . . . . . . . . . . . . . . . . . 28
Servicing Officer . . . . . . . . . . . . . . . . . . . . . . . 28
Servicing Transfer Date . . . . . . . . . . . . . . . . . . . . 28
Servicing Transfer Event . . . . . . . . . . . . . . . . . . . 28
Single Certificate . . . . . . . . . . . . . . . . . . . . . . 29
Specially Serviced Mortgage Loan . . . . . . . . . . . . . . . 29
Specially Serviced Mortgage Loan Status Report . . . . . . . . 29
Special Servicer . . . . . . . . . . . . . . . . . . . . . . . 29
Startup Day . . . . . . . . . . . . . . . . . . . . . . . . . . 29
State Tax Laws . . . . . . . . . . . . . . . . . . . . . . . . 29
Stated Principal Balance . . . . . . . . . . . . . . . . . . . 29
Tax Matters Person . . . . . . . . . . . . . . . . . . . . . . 30
Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Transfer Date . . . . . . . . . . . . . . . . . . . . . . . . . 30
Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Trust Master Collection Account . . . . . . . . . . . . . . . . 30
Trust Primary Collection Account . . . . . . . . . . . . . . . 30
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
UCC Financing Statement . . . . . . . . . . . . . . . . . . . . 31
Uncertificated Interest I . . . . . . . . . . . . . . . . . . . 31
Uncertificated Interest II . . . . . . . . . . . . . . . . . . 31
Uncertificated Interest III . . . . . . . . . . . . . . . . . . 31
Uncertificated Interest IV . . . . . . . . . . . . . . . . . . 31
Uncertificated Interest V . . . . . . . . . . . . . . . . . . . 31
Underwriter . . . . . . . . . . . . . . . . . . . . . . . . . . 31
United States Person . . . . . . . . . . . . . . . . . . . . . 31
Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . 31
Weighted Average Remittance Rate . . . . . . . . . . . . . . . 32
SECTION 1.02 Calculations . . . . . . . . . . . . . . . . . . . . . 32
SECTION 1.03 Rules of Construction . . . . . . . . . . . . . . . . 32
5
<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans . . . . . . . . . . . . . 33
SECTION 2.02 Acceptance by Trustee . . . . . . . . . . . . . . . . 35
SECTION 2.03 Representations and Warranties of the Depositor, the
Master Servicer and the Special Servicer;
Assignment of Rights . . . . . . . . . . . . . . . 36
SECTION 2.04 Repurchase of Mortgage Loans for Breaches of
Representation and Warranty . . . . . . . . . . . . . 39
SECTION 2.05 Execution of Certificates . . . . . . . . . . . . . . 40
ARTICLE III
SERVICING
SECTION 3.01 Servicing Agreements . . . . . . . . . . . . . . . . . 41
SECTION 3.02 Conflict with Servicing Agreement . . . . . . . . . . 41
SECTION 3.03 REMIC Administration . . . . . . . . . . . . . . . . . 41
ARTICLE IV
THE MASTER SERVICER
SECTION 4.01 The Master Servicer . . . . . . . . . . . . . . . . . 46
SECTION 4.02 Mortgage Loan Schedule . . . . . . . . . . . . . . . . 46
SECTION 4.03 Adjustment of Master Servicer's Compensation . . . . . 46
SECTION 4.04 Payment of Rating Agency Fees . . . . . . . . . . . . 46
SECTION 4.05 Implementation of Operations and Maintenance Plans.. . 47
SECTION 4.06 Experts . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.07 Dissemination of Information . . . . . . . . . . . . . 47
ARTICLE V
OBLIGATIONS OF THE SPECIAL SERVICER
SECTION 5.01 The Special Servicer . . . . . . . . . . . . . . . . . 48
SECTION 5.02 Transfer to Special Servicing . . . . . . . . . . . . 48
SECTION 5.03 Servicing of Specially Serviced Mortgage Loans . . . . 48
SECTION 5.04 Management of REO Property. . . . . . . . . . . . . . 52
SECTION 5.05 Sale of REO Property and Specially Serviced Mortgage
Loans . . . . . . . . . . . . . . . . . . . . . . . 53
6
<PAGE>
SECTION 5.06 REO Account; Collection of REO Proceeds . . . . . . . 54
SECTION 5.07 Remittances to Primary Servicer . . . . . . . . . . . 55
SECTION 5.08 Remittances to Master Servicer . . . . . . . . . . . . 55
SECTION 5.09 Specially Serviced Mortgage Loan Status Reports, REO
Status Reports and Other Reports. . . . . . . . .. . 56
SECTION 5.10 Special Servicer Advances . . . . . . . . . . . . . . 57
SECTION 5.11 Environmental Considerations. . . . . . . . . . . . . 58
SECTION 5.12 Restoration of Specially Serviced Mortgage Loans . . . 61
SECTION 5.13 Special Servicer Compensation. . . . . . . . . . . . . 61
SECTION 5.14 (RESERVED) . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 5.15 Extension Advisor . . . . . . . . . . . . . . . . . . 62
ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 6.01 Certificate Account; Remittances to the Trustee . . . 65
SECTION 6.02 Distributions . . . . . . . . . . . . . . . . . . . . 65
SECTION 6.03 Statements to Certificateholders . . . . . . . . . . . 68
SECTION 6.04 Distribution of Reports to the Trustee and the
Depositor; Advances by the Master Servicer . . . . . 70
SECTION 6.05 Allocations of Realized Losses and Collateral Value
Adjustments . . . . . . . . . . . . . . . . . . . . 71
ARTICLE VII
THE CERTIFICATES
SECTION 7.01 The Certificates . . . . . . . . . . . . . . . . . . . 72
SECTION 7.02 Registration of Transfer and Exchange of
Certificates . . . . . . . . . . . . . . . . . . . 73
SECTION 7.03 Mutilated, Destroyed, Lost or Stolen Certificates . . 76
SECTION 7.04 Persons Deemed Owners . . . . . . . . . . . . . . . . 77
ARTICLE VIII
THE DEPOSITOR
SECTION 8.01 Liability of the Depositor . . . . . . . . . . . . . . 78
SECTION 8.02 Merger, Consolidation or Conversion of the
Depositor . . . . . . . . . . . . . . . . . . . . . 78
SECTION 8.03 Limitation on Liability of the Depositor and
Others . . . . . . . . . . . . . . . . . . . . . . 78
7
<PAGE>
ARTICLE IX
DEFAULT
SECTION 9.01 Events of Default . . . . . . . . . . . . . . . . . . 79
SECTION 9.02 Trustee to Act; Appointment of Successor . . . . . . . 80
SECTION 9.03 Notification to Certificateholders . . . . . . . . . . 81
SECTION 9.04 Waiver of Events of Default . . . . . . . . . . . . . 81
SECTION 9.05 Additional Remedies of Trustee Upon Event of
Default . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE X
CONCERNING THE TRUSTEE
SECTION 10.01 Duties of Trustee . . . . . . . . . . . . . . . . . . 82
SECTION 10.02 Monitoring Certificateholders and Directing
Certificateholder . . . . . . . . . . . . . . . . . 83
SECTION 10.03 Powers of Attorney . . . . . . . . . . . . . . . . . 84
SECTION 10.04 Certification by Certificate Owners . . . . . . . . . 84
SECTION 10.05 Certain Matters Affecting the Trustee . . . . . . . . 85
SECTION 10.06 Trustee Not Liable for Certificates or Mortgage
Loans. . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 10.07 Trustee May Own Certificates . . . . . . . . . . . . 87
SECTION 10.08 Fees and Expenses of Trustee; Indemnification of
Trustee . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 10.09 Eligibility Requirements for Trustee . . . . . . . . 88
SECTION 10.10 Resignation and Removal of the Trustee . . . . . . . 89
SECTION 10.11 Successor Trustee . . . . . . . . . . . . . . . . . . 89
SECTION 10.12 Merger or Consolidation of Trustee . . . . . . . . . 90
SECTION 10.13 Appointment of Co-Trustee or Separate Trustee . . . . 90
SECTION 10.14 Appointment of Custodians . . . . . . . . . . . . . . 91
SECTION 10.15 Representations and Warranties of the Trustee . . . . 92
SECTION 10.16 Massachusetts Filings. . . . . . . . . . . . . . . . 93
ARTICLE XI
TERMINATION
SECTION 11.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans . . . . . . . . . . . . . . . . . . . 94
8
<PAGE>
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01 Amendment . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 12.02 Recordation of Agreement; Counterparts . . . . . . . 97
SECTION 12.03 Limitation on Rights of Certificateholders . . . . . 98
SECTION 12.04 Governing Law . . . . . . . . . . . . . . . . . . . . 99
SECTION 12.05 Notices . . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 12.06 Severability of Provisions . . . . . . . . . . . . . 100
SECTION 12.07 Grant of a Security Interest . . . . . . . . . . . . 100
SECTION 12.08 Successors and Assigns . . . . . . . . . . . . . . . 100
SECTION 12.09 Article and Section Headings . . . . . . . . . . . . 101
SECTION 12.10 Notices and Information to Rating Agencies . . . . . 101
SECTION 12.11 Certificateholders List . . . . . . . . . . . . . . . 102
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Asset Strategy Report
Exhibit C Form of Transferor Certificate
Exhibit D Form of Rule 144A Transferee Certificate
Exhibit E Form of Non-Rule 144A Transferee Certificate
Exhibit F Form of Residual Transfer Documents
Exhibit G Mortgage Loan Schedule
Exhibit H Schedule of Servicing Agreements
Exhibit I Loan Sale Agreement
Exhibit J Form of Acknowledgment
Exhibit K Form of Report to Certificateholders
9
<PAGE>
This Pooling and Servicing Agreement, dated and effective as of
June 1, 1996, among J.P. Morgan Commercial Mortgage Finance Corp, a Delaware
corporation, as Depositor, Banc One Management and Consulting Corporation,
an Ohio corporation, as Master Servicer and Special Servicer, and State
Street Bank and Trust Company, a Massachusetts banking corporation, as
Trustee and Extension Advisor.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates,
to be issued hereunder in multiple classes, which in the aggregate will
evidence the entire beneficial ownership interest in the Mortgage Loans (as
defined below). The Mortgage Loans will be serviced pursuant to the terms
hereof and the terms of the Servicing Agreements referenced below. The
Depositor hereby assigns to the Trustee, acting on behalf of the
Certificateholders, its interests and rights as the Related Owner of the
Mortgage Loans under the related Servicing Agreements. As provided herein,
the Trustee will elect that the segregated pool of assets subject to this
Agreement (including, without limitation, the Mortgage Loans) be treated for
federal income tax purposes as a real estate mortgage investment conduit (a
"REMIC") and such segregated pool of assets will be designated as "REMIC I."
One hundred and four partial undivided beneficial ownership interests in each
of the Mortgage Loans (the "REMIC I Uncertificated Classes"), will be
designated as the "regular interests" in REMIC I and the Class R-I
Certificates will be the sole class of "residual interests" in REMIC I, for
purposes of the REMIC Provisions (as defined herein) under federal income tax
law. A segregated pool of assets consisting of the REMIC I Uncertificated
Classes will be designated as "REMIC II" and the Trustee will make a separate
REMIC election with respect thereto. Five partial undivided beneficial
ownership interests in REMIC II (the "REMIC II Uncertificated Classes") will
be designated as the "regular interests" in REMIC II and the Class R-II
Certificates will be the sole class of "residual interests" in REMIC II, for
purposes of the REMIC Provisions under federal income tax laws. A segregated
pool of assets consisting of the REMIC II Uncertificated Classes will be
designated as "REMIC III" and the Trustee will make a separate REMIC election
with respect thereto. The Class A1, Class A1X, Class A2, Class A2X, Class B,
Class C, Class D, Class E, Class F, Class G and Class NR Certificates and the
Class BCX component B and Class BCX component C will be designated as the
"regular interests" in REMIC III, and the Class R-III Certificates will be
the sole class of "residual interests" therein for purposes of the REMIC
Provisions under federal income tax law.
1
<PAGE>
The following table sets forth the designation, Pass-Through Rate
and Original Class Balance for each Class of Certificates comprising the
interests in the Trust Fund created hereunder.
Class Original
Designation Pass-Through Rate Class Balance
---------------------------------------------------------------
Class A1 7.33% $160,000,000.00
Class A1X (1)(2) 0.00
Class A2 7.33% 112,636,000.00
Class A2X (1)(3) 0.00
Class B (4) 24,056,000.00
Class BCX (6) 0.00
Class C (5) 26,060,000.00
Class D % 14,032,000.00
Class E (7) 8,018,000.00
Class F (7) 26,060,000.00
Class G (7) 18,042,000.00
Class NR (7) 12,031,989.00
Class R-I NA NA
Class R-II NA NA
Class R-III NA NA
- ----------------
(1) Calculated based on the related Notional Amount.
(2) Calculated at the weighted average Remittance Rate on such Distribution
Date minus the Pass-Through Rate on the Class A1 Certificates.
(3) Calculated at the weighted average Remittance Rate on such Distribution
Date minus the Pass-Through Rate on the Class A2 Certificates.
(4) Calculated at the weighted average Remittance Rate on such Distribution
Date minus the Pass-Through Rate on the Class BCX Component B.
(5) Calculated at the weighted average Remittance Rate on such Distribution
Date minus the Pass-Through Rate on the Class BCX Component C.
(6) Calculated based on the Pass-Through Rates of its two Components.
(7) Calculated at the weighted average Remittance Rate on such Distribution
Date.
As of close of business on the Cut-off Date, the Mortgage Loans had
an aggregate Cut-off Date Balance equal to $400,935,989.46.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree
as follows:
2
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article. Capitalized
terms used herein and not otherwise defined shall have the meaning set forth
in the applicable Servicing Agreements (as defined below).
"Accepted Servicing Practices": The procedures that the Master
Servicer follows in the servicing and administration of mortgage loans,
consistent with the higher of (i) the standard of care, skill, prudence and
diligence with which the Master Servicer services and administers, mortgage
loans that are held for other portfolios and are similar to the Mortgage
Loans and (ii) the standard of care, skill, prudence and diligence which the
Master Servicer services and administers mortgage loans that are held for its
own portfolio and are similar to the Mortgage Loans, giving due consideration
to customary and usual standards of practice of prudent institutional
multifamily and commercial mortgage lenders, loan servicers and asset
managers but without regard to:
(i) any relationship that the Master Servicer or any Affiliate of
the Master Servicer may have with any Mortgagor or any
Affiliate of any Mortgagor;
(ii) the Master Servicer's obligations to make Advances with
respect to the Mortgage Loans;
(iii) the adequacy of the Master Servicer's compensation for
its services hereunder or with respect to any particular
transaction;
(iv) the ownership, servicing or management for others by the
Master Servicer of any other mortgage loans or property; or
(v) the ownership by the Master Servicer of any Certificates or
other securities issued in connection with any Securitization.
To the extent consistent with the foregoing and subject to the
express limitations set forth in this Agreement, the procedures followed by
the Master Servicer shall seek to maximize the timely and complete recovery
of principal and interest on the Mortgage Loans.
"Accepted Special Servicing Practices": The procedures that
the Master Servicer and the Special Servicer follow in the
servicing, administration and disposition of distressed
3
<PAGE>
mortgage loans and related real property, consistent with the
higher of (i) the standard of care, skill, prudence and diligence with
which the Master Servicer and the Special Servicer service, administer
and dispose of, distressed mortgage loans and related property that
are held for other portfolios and are similar to the Mortgage Loans,
Mortgaged Property and REO Property and (ii) the standard of care,
skill, prudence and diligence with which the Master Servicer and the
Special Servicer service, administer and dispose of, distressed mortgage
loans and related property that is held for its own portfolio and are similar
to the Mortgage Loans, Mortgaged Property and REO Property, giving due
consideration to customary and usual standards of practice of prudent
institutional multifamily and commercial mortgage lenders, loan servicers and
asset managers, so as to maximize the net present value of recoveries on the
Mortgage Loans, but without regard to:
(i) any relationship that the Master Servicer or Special Servicer
or any Affiliate of the Master Servicer or Special Servicer
may have with any Mortgagor or any Affiliate of any Mortgagor;
(ii) the Master Servicer's or Special Servicer's obligations to
make Advances with respect to the Mortgage Loans;
(iii) the adequacy of the Master Servicer's or Special Servicer's
compensation for its services hereunder or with respect to
any particular transaction;
(iv) the ownership, servicing or management for others by the
Master Servicer or Special Servicer of any other mortgage
loans or property; or
(v) the ownership by the Master Servicer or Special Servicer of
any Certificates or other securities issued in connection
with any Securitization.
"Acquisition Date": With respect to any REO Property, the first
day on which such REO Property is considered to be acquired by the Trust Fund
within the meaning of Treasury Regulation Section 1.856-6(b)(1), which is the
first day on which the Trust Fund is treated as the owner of such REO
Property for federal income tax purposes.
"Adjusted Available Distribution Amount": With respect to any
Distribution Date, the Available Distribution Amount net of any interest
accrued on any Collateral Value Adjustment subsequently recovered and any Net
Prepayment Premiums.
"Adjusted Collateral Value": With respect to any Distribution Date,
the excess of the Stated Principal Balance of any Mortgage Loan over the
related Collateral Value Adjustment.
4
<PAGE>
"Advance": A P&I Advance or Servicing Advance.
"Advance Rate": An annual rate equal to the Prime Rate in effect
from time to time.
"Affiliate": With respect to any specified Person, any other
Person controlling, controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Asset Strategy Report": The report prepared pursuant to Section
5.03(c).
"Assignment of Leases and Rents": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Mortgagor, assigning to the mortgagee all of the income,
rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed
or extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located
to effect the transfer of the Mortgage to the Trust Fund, which assignment,
notice of transfer or equivalent instrument may be in the form of one or more
blanket assignments covering the Mortgage Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
"Assumed Final Distribution Date": April 25, 2028, which is the
second anniversary of the date at which the Stated Principal Balance of all
the Mortgage Loans has been reduced to zero, assuming no prepayments and that
the Balloon Mortgage Loans fully amortize according to their amortization
schedule and no Balloon Payment is made.
"Available Distribution Amount": With respect to any Distribution
Date, the amount on deposit in the Certificate Account as of the close of
business on the related Master Remittance Date immediately preceding such
Distribution Date, after giving effect to expenses of the Trust Fund
pursuant to this Agreement.
5
<PAGE>
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification provides for an amortization schedule
extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as
of any date of determination, the amount outstanding on the Maturity Date of
such Mortgage Loan in excess of the related Monthly Payment.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time to time (Title 11 of the United States Code).
"BOMCC": Banc One Management and Consulting Corporation.
"Book-Entry Certificate": Any Certificate registered in the name
of the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day
on which banking and savings and loan institutions in the states of
Massachusetts, New York or Texas are authorized or obligated by law or
executive order to remain closed.
"Certificate": Any Class A1, Class A1X, Class A2, Class A2X, Class
B, Class BCX, Class C, Class D, Class E, Class F, Class G, Class NR, Class
R-I, Class R-II or Class R-III Certificate.
"Certificate Account": The segregated trust account or accounts
created and maintained by the Trustee pursuant to Section 6.01 in trust for
Certificateholders, which shall be entitled "State Street Bank and Trust
Company, as Trustee, in trust for registered holders of J.P. Morgan
Commercial Mortgage Finance Corp., Mortgage Pass-Through Certificates,
Series 1996-C3."
"Certificate Balance": With respect to any Class A1, Class A2,
Class B, Class C, Class D, Class E, Class F, Class G or Class NR Certificate,
as of any date of determination, the then outstanding principal amount of
such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Balance of
the Class of Certificates to which such Certificate belongs. The Class A1X,
Class A2X, Class BCX and Residual Certificates do not have a Certificate
Balance.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that,
solely for the purposes of giving any consent, approval or waiver
pursuant to this Agreement, any Certificate registered in the name
of the Master Servicer, the Depositor or any Affiliate of either
shall be deemed not to be outstanding, and the Voting Rights to
which it is entitled shall not be taken into account in determining
6
<PAGE>
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver has been obtained, except as otherwise provided
in Sections 9.04 and 12.01. The Trustee shall be entitled to request and
rely upon a certificate of the Master Servicer or the Depositor in
determining whether a Certificate is registered in the name of an Affiliate
of such Person.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent, if any, and otherwise on the books of a Depository
Participant, if any, and otherwise on the books of the Depository.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 7.02.
"Class": Collectively, all of the Certificates bearing the same
capital letter designation.
"Class A1 Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class A1X Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class A2 Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class A2X Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class B Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class BCX Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class BCX component B": The component of the Class BCX
Certificates with a Notional Amount equal to the Class Balance of the Class
B Certificates and a Pass-Through Rate equal to 0.255% per annum.
"Class BCX component C": The component of the Class BCX
Certificates with a Notional Amount equal to the Class Balance of the Class
C Certificates and a Pass-Through Rate equal to 0.108% per annum.
7
<PAGE>
"Class Balance": With respect to any Class, the aggregate
principal amount of such Class outstanding as of any date of determination
equal to the excess of (A) the sum of (i) of the Original Class Balance and
(ii) with respect to the Class outstanding with the lowest priority with
respect to the order of payment of interest or principal, the amount of any
excess recovered with respect to a Mortgage Loan above the sum of any
Collateral Value Adjustment Interest Recovery Amount and the related Adjusted
Collateral Value (after giving effect to all other amounts previously
collected with respect thereto) over (B) any amounts allocated to such Class
in reduction of its Class Balance pursuant to the terms hereof.
"Class C Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class D Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class E Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class F Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class G Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class NR Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class R-I Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class R-II Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class R-III Certificate": Any of the Certificates issued
hereunder and designated as such.
"Code": The Internal Revenue Code of 1986, as amended.
"Collateral Value Adjustment": With respect to a Mortgage Loan as
to which a Collateral Value Adjustment Event has occurred, an amount equal
to the excess of (a) the Stated Principal Balance of the Mortgage Loan as of
the date of the Collateral Value Adjustment Event over (b) the excess of (i)
90% of the current appraised value of the related Mortgaged Property
8
<PAGE>
as determined by an Independent MAI appraisal thereof prepared in accordance
with 12 CFR Section225.62 over (ii) the sum of (A) to the extent not
previously advanced by a Servicer, all unpaid interest on such Mortgage Loan
at a per annum rate equal to the Mortgage Rate, (B) all unreimbursed Advances
and interest thereon at the Advance Rate, (C) any unpaid Servicing Fees and
Trustee Fees and (D) all currently due and delinquent real estate taxes and
assessments, insurance premiums and, if applicable, ground rents in respect
of such Mortgaged Property (net of any amount escrowed or otherwise available
for payment of any amounts due on the related Mortgage Loans with respect to
such Mortgage Loan or REO Property). Upon the occurrence of any event giving
rise to a subsequent Collateral Value Adjustment (including the delinquency
referred to in the immediately preceding sentence) more than twelve months
after an appraisal was obtained with respect to a previous Collateral Value
Adjustment or if the Servicers have made P&I Advances for twelve consecutive
months following a Collateral Value Adjustment, the Special Servicer will
order a new appraisal as described above, within 30 days of the occurrence
of any such event giving rise to a subsequent Collateral Value Adjustment and
will adjust the amount of the Collateral Value Adjustment in accordance
therewith.
"Collateral Value Adjustment Event": With respect to any Mortgage
Loan the date within 30 days after (i) 90 days after the date on which an
uncured delinquency occurs in respect of such Mortgage Loan, (ii) 60 days
after the date on which a receiver is appointed (if such appointment remains
in effect during such 60-day period) in respect of the related Mortgaged
Property, (iii) the date on which the related Mortgaged Property becomes an
REO Property or (iv) the date on which the payment rate, Mortgage Rate,
principal balance, amortization terms or Maturity Date of such Mortgage Loan
has been changed or otherwise materially modified pursuant to and in
accordance with the terms hereof.
"Collateral Value Adjustment Interest Amount": With respect to any
Class and any Distribution Date, interest at the applicable Pass-Through Rate
which would have been payable on such Class but for the allocation of a
Collateral Value Adjustment thereto.
"Collateral Value Adjustment Interest Recovery Amount": With
respect to any Distribution Date, the lesser of (a) the aggregate unpaid
Collateral Value Adjustment Interest Amount for all classes and (b) the
Collateral Value Adjustment Recovery Amount.
"Collateral Value Adjustment Recovery Amount": With respect to any
Distribution Date and each Mortgage Loan as to which a Liquidation Event has
occurred and which was previously subject to a Collateral Value Adjustment,
the excess of all net Liquidation Proceeds recovered in connection therewith
over the related Adjusted Collateral Value.
"Collection Period": With respect to any Distribution Date, the
period beginning on the second day of the month preceding the month of such
Distribution Date (or, in the case of the initial Distribution Date, the Cut-
off Date) and ending on the first day of the month of such Distribution Date.
9
<PAGE>
"Components": Each of the Class BCX component B and Class BCX
component C.
"Condemnation Proceeds": With respect to each Mortgage Loan, all
awards or settlements in respect of a Mortgaged Property, whether permanent
or temporary, partial or entire, on account of the exercise of the power of
eminent domain or condemnation, held in an Escrow Account or in a trust
account, which is an Eligible Account, pursuant to the terms of the related
Mortgage Loan Documents, related to such Mortgaged Property and applied or
to be applied to the restoration or repair of such Mortgaged Property or
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents or, to the extent not expressly provided
therein, in accordance with Accepted Servicing Practices or Accepted Special
Servicing Practices, as applicable, and applicable law.
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the execution of this Agreement is located at State Street Bank and Trust
Company, 2 International Place, 5th Floor, Boston, Massachusetts 02110,
Attention: Corporate Trust Department.
"Crown Hotel Notes": The 21 Mortgage Notes relating to the Crown
Participation as set forth on Exhibit G hereto.
"Crown Hotel Properties": The Mortgaged Properties securing the
Crown Hotel Notes.
"Crown Participation": A 34.3911814% participation in a pool of
Crown Hotel Notes pursuant to the Crown Participation Agreement. For purposes
of this Agreement, the Crown Participation is to be treated as a Mortgage
Loan with a Cut-off Date Balance of $25,000,000.00.
"Crown Participation Agreement": The participation agreement dated
as of the Delivery Date, between MGT, as seller of the participations, the
Depositor, as the initial participant, BOMCC, as participation servicer of the
participations, and State Street Bank and Trust Company, as Custodian.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 10.14 as a document custodian for the Mortgage Loan
Files, which Person shall not be the Depositor, the Originator or an
Affiliate thereof . The initial Custodian shall be State Street Bank and
Trust Company, acting in its capacity as custodian for the Trustee.
"Cut-off Date": June 1, 1996.
10
<PAGE>
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
net of the principal portion of all unpaid Monthly Payments due on or before
such date.
"Defaulted Mortgage Loan": Any Mortgage Loan which is more than
60 days delinquent in whole or in part in respect of any Monthly Payment or
is delinquent in whole or in part in respect of the related Balloon Payment,
if any; provided that for purposes of this definition, no Monthly Payment
(other than a Balloon Payment) shall be deemed delinquent if less than five
dollars ($5.00) of all amounts due and payable on such Mortgage Loan has not
been received as of the most recent Due Date therefor.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in
an amount less than the then outstanding principal balance of the Mortgage
Loan, or any reduction in the amount of principal to be paid in connection
with any scheduled Monthly Payment that constitutes a permanent forgiveness
of principal, which valuation results from a proceeding initiated under the
Bankruptcy Code or a state court deficiency proceeding.
"Definitive Certificate": Any certificated, fully registered
certificate.
"Delivery Date": June 27, 1996.
"Depositor": J.P. Morgan Commercial Mortgage Finance Corp., or its
successor in interest.
"Depository": The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code
of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of 1934, as amended.
The initial Depository shall be The Depository Trust Company, a nominee of
which is CEDE & Co.
"Depository Participant": A broker, dealer, bank or other
financial institution or other person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited by the
Depository.
"Determination Date": With respect to any Distribution Date, the
10th Business Day preceding such Distribution Date.
"Directing Certificateholder": The Monitoring Certificateholder
selected by a majority of the Monitoring Certificateholders, by Certificate
Balance, as certified by the Trustee from time to time; provided, that,
absent such selection, or (i) until a Directing Certificateholder is so
selected, or (ii) upon receipt of notice from a majority of the Monitoring
Certificateholders,
11
<PAGE>
by Certificate Balance, that a Directing Certificateholder is no longer so
designated, the Monitoring Certificateholder(s) which owns the largest
aggregate Certificate Balance of one or more Monitoring Classes shall
be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management
or operation of such REO Property, the holding of such REO Property primarily
for sale to customers, the performance of any construction work thereon or
any use of such REO Property in a trade or business conducted by the Trust
Fund other than through an Independent Contractor; provided, however, that
the Trustee (or the Master Servicer or the Special Servicer on behalf of the
Trustee) shall not be considered to Directly Operate a REO Property solely
because the Trustee (or the Master Servicer or the Special Servicer on behalf
of the Trustee) establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such REO Property.
"Disqualified Organization": Any of (i) the United States, any
State or political subdivision thereof, any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (ii) any organization (other than a cooperative described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1
of the Code unless such organization is subject to the tax imposed by Section
511 of the Code, or (iii) any organization described in Section 1381(a)(2)(C)
of the Code. A corporation will not be treated as an instrumentality of the
United States or of any State or any political subdivision thereof if all of
its activities are subject to tax and, with the exception of the Federal Home
Loan Mortgage Corporation (a corporate instrumentality of the United States)
a majority of its board of directors is not selected by a governmental unit.
"Distribution Date": The twenty-fifth (25th) day (or if any such
day is not a Business Day, the Business Day immediately succeeding such
twenty-fifth (25th) day) of each month.
"Due Date": With respect to any Mortgage Loan, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment
thereon is scheduled to be due.
"Eligible Account": Either:
(a) an account or accounts maintained with a federal or state
chartered depository institution or trust company (i) the
commercial paper, short-term debt obligations or other short-term
deposits of which have the Required Rating or (ii) the long-term
unsecured debt obligations of which have the Required Rating; or
12
<PAGE>
(b) a segregated trust account or accounts maintained with
the corporate trust department of a federal depository institution
or state chartered depository institution (i)(A) subject to
regulations regarding fiduciary funds on deposit similar to
12 C.F.R. Section 9.10(b) or (B) a trust company which, in either
case, has corporate trust powers, acting in its fiduciary capacity
and (ii)(A) whose accounts are fully insured by FDIC's Bank
Insurance Fund or Savings Associations Insurance Fund or under the
National Credit Union Administration's Share Insurance Fund, (B)
which are rated "C" or better by Thomson Bankwatch, Inc. or "75"
or better by IDC Financial Publishing, Inc., or (C) whose long-term
unsecured debt obligations are rated "AAA" or better by each Rating
Agency (or if such obligations are not rated by Fitch Investors
Service, L.P., each other Rating Agency). In connection with
determining whether a depository institution satisfies the
criteria set forth in clauses (ii)(B) or (ii)(C) of the preceding
sentence, each Servicer and the Trustee shall each use ratings that
have been issued within the three-month period preceding the date of
such determination, and shall re-check the applicable ratings of
any depository institution with whom they have established an
account no less often than every three months. If any such
depository institution ceases to satisfy the requirements set forth
above, then each of such accounts that are held by such depository
institution shall be transferred to a depository institution which
satisfies such requirements within 30 days.
"Environmental Laws": Any present or future federal, state or
local law, statute, regulation or ordinance, and any judicial or
administrative order or judgment thereunder, pertaining to health, industrial
hygiene, Hazardous Materials or the environment, including, but not limited
to, each of the following, as enacted as of the date hereof or as hereafter
amended:
(i) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Sections 9601-9657;
(ii) the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
Sections 6901-6991i;
(iii) the Toxic Substance Control Act, 15 U.S.C. Sections 2601-2629;
(iv) the Water Pollution Control Act (also known as the Clean Water
Act), 33 U.S.C. Section 1251 et seq.;
-- ---
(v) the Clean Air Act, 42 U.S.C. Section 7401 et seq.; and
-- ---
(vi) the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801 et seq.
-- ---
13
<PAGE>
"Event of Default": One or more of the events described in Section
9.01.
"Excess Condemnation Proceeds": With respect to each Mortgage
Loan, all awards or settlements in respect of a Mortgaged Property, whether
permanent or temporary, partial or entire, on account of the exercise of the
power of eminent domain or condemnation, other than any such awards or
settlements held in an Escrow Account or in a trust account, which shall be
an Eligible Account, pursuant to the terms of the related Mortgage Loan
Documents, related to such Mortgaged Property and applied or to be applied
to the restoration or repair of such Mortgaged Property or required to be
released to a Mortgagor in accordance with the terms of the related Mortgage
Loan Documents or, to the extent not expressly provided therein, in
accordance with Accepted Servicing Practices or Accepted Special Servicing
Practices, as applicable, and applicable law.
"Excess Insurance Proceeds": With respect to each Mortgage Loan,
proceeds of any primary hazard insurance policy required to be maintained
pursuant to Section 4.07 of each Servicing Agreement, title insurance policy
or any other Insurance Policy covering such Mortgage Loan or the related
Mortgaged Property, other than any proceeds to be held in an Escrow Account
or in a trust account, which shall be an Eligible Account, pursuant to the
terms of the related Mortgage Loan Documents, related to such Mortgage Loan
and applied or to be applied to the restoration or repair of the related
Mortgaged Property or required to be released to the related Mortgagor in
accordance with the terms of the related Mortgage Loan Documents or, to the
extent not expressly provided therein, in accordance with Accepted Servicing
Practices or Accepted Special Servicing Practices, as applicable, and
applicable law.
"Extension Advisor": The entity responsible for approving any
proposed Mortgage Loan modification that extends the maturity date of a
Mortgage Loan by more than three (3) years beyond the scheduled maturity
date of such Mortgage Loan as of the Cut-off Date, as provided in
Section 5.15 herein. The initial Extension Advisor shall be the State
Street Bank and Trust Company.
"FDIC": The Federal Deposit Insurance Corporation, or any
successor thereto.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan, as certified in writing
by a Servicing Officer setting forth such determination and the procedures
and considerations of the Special Servicer forming the basis of such
determination, that there has been a recovery of all REO Proceeds,
Liquidation Proceeds and other payments or recoveries that the Special
Servicer, in its reasonable good faith judgment, expects to be ultimately
recoverable.
"GMACCM": GMAC Commercial Mortgage Corporation.
14
<PAGE>
"GMACCM Mortgage Loans": The Mortgage Loans identified in the
Mortgage Loan Schedule as being primary serviced by GMACCM.
"Hazardous Materials": All materials subject to any Environmental
Law, including, without limitation, materials listed in 49 C.F.R. Section
172.010, materials defined as hazardous pursuant to Section 101(14) of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, flammable, explosive or radioactive materials, hazardous or toxic
wastes or substances, lead-based materials, petroleum or petroleum
distillates or asbestos or material containing asbestos, polychlorinated
biphenyls ("PCBs"), radon gas, urea formaldehyde and any substances
classified as being "in inventory", "usable work in process" or similar
classification that would, if classified as unusable, be included in the
foregoing definition.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer and any and all Affiliates thereof, (ii) does
not have any direct financial interest in or any material indirect financial
interest in any of the Depositor, the Master Servicer, the Special Servicer
or any Affiliate thereof, and (iii) is not connected with the Depositor, the
Master Servicer, the Special Servicer or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
"Insurance Policy": With respect to any Mortgage Loan, any
insurance policy required to be maintained under this Agreement, the related
Servicing Agreement or the related Mortgage Loan Documents.
"Insurance Proceeds": With respect to each Mortgage Loan, as
defined in the related Servicing Agreement.
"Interest Accrual Amount": With respect to each Distribution Date
and any Class of Certificates (other than the Class BCX or Residual
Certificates) and any Component, interest accrued during the period from and
including the first day of the month preceding the month of the Distribution
Date (or the Cut-off Date with respect to the initial Distribution Date) to
and including the last day of the month preceding the month of the
Distribution Date (calculated on the basis of a 360-day year consisting of
twelve 30-day months) on the Class Balance or Notional Balance as the case
may be, outstanding immediately prior to such Distribution Date at the then
applicable Pass-Through Rate applicable to such Class of Certificates or
Component for such Distribution Date.
"Interest Distribution Amount": With respect to each Distribution
Date and any Class (other than the Class BCX Certificates) and any Component,
the Interest Accrual Amount for such Distribution Date reduced by the
product of (a) any excess of Prepayment Interest Shortfalls for such
Distribution over any Prepayment Interest Excess for such Distribution
15
<PAGE>
Amount and any interest not collectible pursuant to the Soldiers' and
Sailors' Civil Relief Act of 1940 and (b) the Interest Accrual Amount on
such Class or Component divided by the Interest Accrual Amount for all such
Classes of Certificates and Component for such Distribution Date. The
Interest Distribution Amount for the Class or Component with the lowest
priority with respect to the order of payment of interest or principal
shall be reduced further by the portion of any interest deferred with
respect to any Mortgage Loans (such reduction will be based on the same
basis as distributions of interest are made to the extent allocated to
Classes or Component which receive distributions concurrently). Such
deferred amount, together with interest at the related Pass-Through
Rate, shall be payable to the extent it is collected after such
Distribution Date.
"Interested Person": As of any date of determination with respect
to any Mortgage Loan, the Mortgagor, the Depositor, the related Primary
Servicer, the Special Servicer or the Master Servicer.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan; (iii) such
Mortgage Loan is repurchased by the Depositor pursuant to Section 2.04,
Section 8.04 or Section 9.01; or (iv) such Mortgage Loan is purchased by the
Master Servicer or Special Servicer pursuant to Section 9.01.
"Liquidation Proceeds": Cash (including any Excess Insurance
Proceeds or Excess Condemnation Proceeds, but excluding REO Proceeds)
received in connection with the liquidation of a Defaulted Mortgage Loan,
whether through the sale or assignment of such Defaulted Mortgage Loan,
trustee's sale, foreclosure sale or otherwise.
"Loan Sale Agreement": The Loan Sale Agreement, dated as of June
1, 1996, between MGT and the Depositor relating to the transfer and
assignment of the Mortgage Loans attached as Exhibit I hereto.
"Loss Mortgage Loan": Any Mortgage Loan (a) as to which a
Liquidation Event has occurred, (b) with respect to which the Master Servicer
or (unless advanced by the Master Servicer) the Special Servicer has
determined that an Advance previously made or proposed to be made is
Nonrecoverable Advance or (c) with respect to which a Deficient Valuation has
been made or a portion of the principal balance thereof has been otherwise
permanently forgiven.
"Master Remittance Date": With respect to each Distribution Date,
one Business Day preceding such Distribution Date.
"Master Servicer": Banc One Management and Consulting Corporation,
an Ohio corporation, its successor in interest, or any successor servicer
appointed as such as herein provided.
16
<PAGE>
"Maturity Date": With respect to any Mortgage Loan as of any date
of determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note.
"MGT": Morgan Guaranty Trust Company of New York, and its
successors in interest.
"Modification": As defined in Section 5.15(a).
"Monitoring Certificateholder": Each Holder (or Certificate Owner,
if applicable) of a Certificate of a Monitoring Class as certified to the
Trustee from time to time by such Holder or Certificate Owner.
"Monitoring Class": As defined in Section 10.02(c).
"Monthly Payment": With respect to any Mortgage Loan and any Due
Date, the scheduled monthly payment with respect to such Mortgage Loan,
including any Escrow Payments but excluding any Balloon Payment, which is
payable by a Mortgagor under the related Mortgage Note and applicable Law
and, with respect to a Balloon Mortgage Loan for which a Balloon Payment is
due and has not been made, the monthly payment with respect to
such Balloon Mortgage Loan that would be payable on and after the related
Maturity Date based on the full amortization schedule determined by the
Special Servicer.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first lien on an estate in fee simple or leasehold interest in
real property securing a Mortgage Note, including the assignment of leases
and rents related thereto.
"Mortgage Loan": Each of the mortgage loans and the Crown
Participation transferred and assigned to the Trustee pursuant to Section
2.01 or Section 2.02 and from time to time held in the Trust Fund, the
Mortgage Loans so held pursuant to Sections 2.01 and 2.02 being identified
on the Mortgage Loan Schedule (including, any successor REO Mortgage Loan).
As used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage Loan
File.
"Mortgage Loan Documents": With respect to each Mortgage Loan,
to the extent applicable, the Mortgage, Mortgage Note, Assignment of
Mortgage, Assignment of Leases and Rents (if separate from Mortgage),
any security agreements, any UCC Financing Statements, the title insurance
policy, all surveys, all insurance policies, any environmental liabilities
agreements, any escrow agreements for improvements, any guaranties related
to such Mortgage Loan, any prior assignments of mortgage in the event
that the originator is not the originator of record, any collateral
assignments of property management agreements and other services
17
<PAGE>
agreements required by the applicable commitment and other loan documents
and all modification, consolidation and extension agreements, if any.
"Mortgage Loan File": In connection with any Mortgage Loan, all
the documents held or required to be held by the Custodian pertaining to such
Mortgage Loan, including the Mortgage Loan Documents, the related appraisal,
reports regarding physical and structural characteristics and condition of
the related Mortgaged Property, reports regarding environmental condition of
the related Mortgaged Property, lease subordination agreements and tenant
estoppels and related opinions of counsel.
"Mortgage Loan Purchase Agreement": Each of the Mortgage Loan
Purchase Agreements listed in Exhibit I.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred
to the Trustee as part of the Trust Fund, attached hereto as Exhibit G.
"Mortgage Note": The note or other evidence of indebtedness of a
Mortgagor under a Mortgage Loan, together with all riders thereto and
amendments thereof.
"Mortgage Rate": With respect to any Mortgage Loan, the annual
rate at which interest accrues on such Mortgage Loan in accordance with the
terms of the related Mortgage Loan.
"Mortgaged Property": The underlying property (including any REO
Property) that secures a Mortgage Loan, in each case consisting of a parcel
or parcels of land improved by a commercial and/or multifamily building or
facility, together with any personal property, fixtures, leases and other
property or rights pertaining thereto.
"Mortgagor": The obligor or obligors on a Mortgage Note.
"Most Subordinate Class of Certificates": At the time of
determination, the Class to which any Realized Losses would be first
allocated to as of such time in accordance with Section 6.05.
"Net Prepayment Premium": With respect to any Distribution Date,
the excess (but not less than zero) of (a) any Prepayment Premium received
prior to the related Primary Remittance Date and not previously distributed
or applied to reimburse to Master Servicer with respect to its Servicing Fee
over (b) the excess of any Prepayment Interest Shortfall allocated prior to
the related Primary Remittance Date and not previously allocated over any
Prepayment Interest Excess (but not less than zero).
18
<PAGE>
"Nonrecoverable Advance": Any Advance previously made or proposed
to be made by any Servicer in respect of a Mortgage Loan which together with
interest thereon, in the good faith judgment of such Servicer, will not, or,
in the case of a proposed Advance, would not, be ultimately recoverable by
such Servicer from net proceeds received solely with respect to such Mortgage
Loan or the related Mortgaged Property, including related Excess Insurance
Proceeds, Liquidation Proceeds, REO Proceeds, Excess Condemnation Proceeds
and escrowed amounts.
"Nonrecoverable Advance Certificate": A certificate signed by a
Servicing Officer setting forth the determination of a Nonrecoverable Advance
and the procedures and considerations of the related Servicer forming the
basis of such determination (including but not limited to information such
as related income and expense statements, rent rolls, occupancy status,
property inspections, and an Independent MAI appraisal of the related
Mortgaged Property).
"Non-United States Person": Any person other than a United States
Person.
"Notional Amount": With respect to the Class A1X Certificates and
any Distribution Date, the Class Balance of the Class A1 Certificates
immediately preceding such Distribution Date. With respect to the Class A2X
Certificates and any Distribution Date, the Class Balance of the Class A2
Certificates immediately preceding such Distribution Date. With respect
to the Class BCX component B and any Distribution Date, the Class Balance
of the Class B Certificates immediately preceding such Distribution Date.
With respect to the Class BCX component C and any Distribution Date, the
Class Balance of the Class C Certificates immediately preceding such
Distribution Date.
"Officers' Certificate": With respect to any Servicer, a
certificate signed by a Servicing Officer of such Servicer.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor, the Master
Servicer or Special Servicer, acceptable and delivered to the Trustee, except
that any opinion of counsel relating to (a) the qualification of the Trust
Fund as a REMIC or (b) compliance with the REMIC Provisions, must be an
opinion of counsel who is in fact Independent of the Depositor, the Master
Servicer, the Special Servicer and the Primary Servicer.
"Original Class Balance": As to any Class of Certificates, the
Original Class Balance set forth in the Preliminary Statement.
"Originator": With respect to any Mortgage Loan, it shall have the
meaning set forth in the related Mortgage Loan Purchase Agreement.
19
<PAGE>
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial, as owner or as pledgee.
"P&I Advance": Any amounts identified in this Agreement or any
Servicing Agreement as a P&I Advance.
"Pass-Through Rate": With respect to any Distribution Date a per
annum rate equal to (a) as to the Class A1, Class A1X, Class A2, Class A2X,
Class B, Class C, Class D, Class E, Class F, Class G and Class NR
Certificates, the corresponding Pass-Through Rate as set forth in the
Preliminary Statement and (b) as to the Class BCX component B and Class BCX
component C, as set forth in the definitions thereof. The Residual
Certificates will not have a Pass-Through Rate.
"Percentage Interest": With respect to any Class of Certificates,
the portion of the relevant Class evidenced by such Certificate, expressed
as a percentage, the numerator of which is the initial Certificate Balance
or initial Notional Amount of such Certificate as of the Delivery Date, as
specified on the face thereof, and the denominator of which is the Original
Class Balance or Notional Amount of the relevant Class.
"Permitted Investments": Any one or more of the obligations and
securities listed below that provide for a date of maturity of not more than
30 days but in any event not later than the date prior to the date such funds
will be required to be distributed:
(i) direct obligations of, and obligations fully guaranteed by,
the United States of America, or any agency or instrumentality
of the United States of America the obligations of which are
backed by the full faith and credit of the United States of
America;
(ii) federal funds, demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any
depository institution or trust company incorporated or
organized under the laws of the United States of America
or any state thereof and subject to supervision and
examination by federal and/or state banking authorities,
the commercial paper or other short-term debt obligations
of such depository institution or trust company (or, in the
case of a depository institution or trust company which is
the principal subsidiary of a holding company, the commercial
paper or other short-term debt obligations of such holding
company) which has the Required Rating;
(iii) commercial or finance company paper (including both
non-interest-bearing discount obligations and
interest-bearing obligations payable on demand
20
<PAGE>
or on a specified date not more than 270 days after the
date of issuance thereof) that has the Required Rating for
short-term debt (or, if such obligation is not rated by
Fitch Investors Service, L.P., which has the Required
Rating from the other Rating Agency);
(iv) repurchase obligations with respect to any security described
in clause (i) above entered into with a depository institution
or trust company (acting as principal) meeting the rating
standards described in clause (ii) above and having
maturities of not more than 365 days; and
(v) any other obligation or security acceptable to each Rating
Agency, as indicated in writing that would not result in a
downgrading, qualification or withdrawal of the ratings
then assigned to the Certificates;
provided, however, that no such instrument shall be a Permitted Investment
- -------- -------
if (w) such instrument evidences a right to receive either (A) only interest
payments with respect to the obligations underlying such instrument or (B)
both principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations; (x) its terms do not have a
predetermined fixed dollar amount of principal due at maturity that cannot
vary or change; (y) to the extent rated, an "r" highlighter is affixed to its
rating; (z) to the extent the related interest rate is variable, interest
there is not tied to a single interest rate index plus a single fixed
spread (if any), or does not move proportionately with that index.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability corporation, limited liability company, limited liability
partnership, or government or any agency or political subdivision thereof.
"Prepayment Assumption": It is assumed for purposes of Section
3.03(c) that there are no prepayments on the Mortgage Loans and that the
Crown Hotel Notes are paid in full on April 30, 2005.
"Prepayment Interest Excess": With respect to any Distribution
Date, for each Mortgage Loan that was subject to a Principal Prepayment in
full or in part prior to the related Determination Date and after the
preceding Due Date, the amount of interest accrued at the Remittance Rate for
such Mortgage Loan on the amount of such Principal Prepayment during the
period from and after such Due Date, to the extent collected.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that was subject to a Principal Prepayment in
full or in part after the related
21
<PAGE>
Determination Date and prior to the following Due Date, the amount of
interest that would have accrued at the Remittance Rate for such Mortgage
Loan on the amount of such Principal Prepayment during the period commencing
on the date as of which such Principal Prepayment was applied to the unpaid
principal balance of the Mortgage Loan and ending on the day immediately
preceding such Due Date, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable,
as set forth in the related Mortgage Note, by a Mortgagor in connection with
a Principal Prepayment.
"Primary Remittance Date": With respect to any Distribution Date,
the third (3rd) Business Day preceding such Distribution Date.
"Primary Servicer": With respect to any Servicing Agreement shall
have the meaning set forth therein.
"Prime Rate": As of any day, the per annum rate reported in The
---
Wall Street Journal on the immediately preceding Business Day as the prime
- -------------------
rate.
"Principal Distribution Amount": With respect to any Distribution
Date an amount equal to the aggregate of (a) all scheduled payments of
principal (other than Balloon Payments) due on the Mortgage Loans on the
related Due Date whether or not received and all scheduled Balloon Payments
received, (b) if the scheduled Balloon Payment is not received, with respect
to any Balloon Loans on and after the Maturity Date thereof, the principal
payment that would need to be received in the related month in order to fully
amortize such Balloon Loan with level monthly payments by the end of the term
used to derive scheduled payments of principal due prior to the related
Maturity Date, (c) to the extent not previously advanced, any unscheduled
principal recoveries received during the related Remittance Period in respect
of the Mortgage Loans, whether in the form of liquidation proceeds, insurance
proceeds, condemnation proceeds or amounts received as a result of the
purchase of any Mortgage Loan out of the Trust Fund and (d) any other portion
of the Adjusted Available Distribution Amount remaining undistributed after
payment of any interest payable on the Certificates pursuant to clause (v)
of Section 6.02(a) for the related or any prior Distribution Date, including
any Prepayment Interest Excess not offset by any Prepayment Interest
Shortfall occurring during the related Remittance Period or otherwise
required to reimburse the Master Servicer and interest distributions on the
Mortgage Loans, in excess of interest distributions on the Certificates,
resulting from the allocation of amounts described in this clause (d) to
principal distributions on the Certificates.
"Principal Prepayment": Any payment or other recovery of principal
on a Mortgage Loan that is received in advance of its scheduled Due Date
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month of prepayment.
22
<PAGE>
"Property Improvement Expenses": Any costs and expenses for
repairs, replacements or improvements which the Special Servicer deems
advisable under the circumstances, but only to the extent that they are paid
to third persons in arms' length arrangements, which may, to the extent
expressly approved in the related Asset Strategy Report, be Affiliates, who
are generally in the business of providing such goods and services and that
such expenses are reasonable for the types of goods or services provided in
the geographical area in which such goods or services are provided, designed
to maintain or improve the value of a Mortgaged Property or REO Property but
not immediately necessary to operate it, that are incurred for the purpose
of facilitating the sale of the related Specially Serviced Mortgage Loan or
REO Property and maximizing the proceeds thereof, including but not limited
to the following: (a) cosmetic improvements such as painting and landscaping;
(b) build-out or modification to suit a particular prospective or actual
tenant or buyer; (c) replacement of items which are obsolescent or wearing
out but which may not be dysfunctional; and (d) moneys paid to a tenant or
buyer for a purpose similar to a Property Improvement Expense.
"Property Protection Expenses": The following costs and expenses,
but, with respect to items (b) through (n) below, only to the extent that
they are paid to third persons in arms' length arrangements, which may, to
the extent expressly approved in the related Asset Strategy Report, be
Affiliates, who are generally in the business of providing such goods and
services and that such expenses are reasonable for the types of goods or
services provided in the geographical area in which such goods or services
are provided: (a) real estate taxes, assessments and similar charges; (b)
premiums for insurance; (c) utility costs; (d) payments required under
service contracts, including but not limited to service contracts for
heating, ventilation and air conditioning systems, elevators, landscape
maintenance, pest extermination, security, model furniture, swimming pool
service, trash removal, answering service, credit checks and monitoring the
satisfaction of real estate tax assessments and the designation from time to
time of special flood hazard areas; (e) payroll costs and benefits for on-
site maintenance personnel, including but not limited to housekeeping
employees, porters and general maintenance and security employees; (f)
property management fees; (g) usual and customary leasing and sales brokerage
expenses and commissions and other costs and expenses associated with
marketing, selling or otherwise disposing of Specially Serviced Mortgage
Loans or REO Properties including, without limitation, marketing brochures,
auction services, reasonable legal fees, surveys, title insurance premiums
and other title company costs; (h) permits, licenses and registration fees
and costs; (i) any expense necessary in order to prevent or cure a breach
under a lease, contract or agreement, if the consequences of failure to
prevent or cure could, in the sole judgment of the Special Servicer, have a
material adverse effect with respect to the Mortgage Loan, REO Property or
Mortgaged Property; (j) any expense necessary in order to prevent or cure a
material violation of any applicable law, regulation, code or ordinance with
respect to any Mortgaged Property, including without limitation any
environmental remediation; (k) costs and expenses of appraisals, valuations,
surveys, inspections, environmental assessments, credit reports, or market
studies (including, in each case, review thereof); (l) transportation,
lodging and other travel related costs incurred by the Special Servicer in
23
<PAGE>
performing its duties under this Agreement, provided that the travel expenses
of the Special Servicer's employees providing services under this Agreement
shall be limited to the lesser of actual expenses or a reasonable budgeted
amount for each calendar year mutually agreed upon by the Trustee and the
Special Servicer; (m) other such reasonable marketing, legal, accountants,
expert witness fees and other fees and expenses incurred by the Special
Servicer in connection with the enforcement, collection, foreclosure,
management and operation of Specially Serviced Mortgage Loans or REO
Properties, the bankruptcy of any related Mortgagor, and the performance of
their servicing duties under this Agreement; and (n) such other expenses as
are reasonable and immediately necessary to operate the Mortgaged Property
or REO Property.
"Purchase Price": With respect to any Mortgage Loan to be
purchased pursuant to Section 2.02(c), Section 2.04, Section 5.05(a) or
Section 11.01, the Stated Principal Balance thereof as of the date of
purchase, together with (i) all accrued and unpaid interest at the
Mortgage Rate on such Mortgage Loan to but not including the date of
purchase, (ii) all related unreimbursed Advances and (iii) all accrued
and unpaid interest on related Advances, including any expense
arising out of the enforcement of the repurchase obligation.
"Qualified Insurer": An insurance company:
(i) duly qualified as such under the laws of the state in which
the related Mortgaged Property is located;
(ii) duly authorized and, if required, licensed in such state to
transact the applicable insurance business and to write the
insurance provided; and
(iii) whose claims paying ability is rated at least "A-" or the
comparable rating by each Rating Agency.
"Rating Agency": Each of Fitch Investors Service, L.P. and
Standard & Poor's Ratings Services.
"Realized Loss": With respect to each Loss Mortgage Loan (or REO
Property) as to which a Liquidation Event has occurred, an amount (not less
than zero) equal to (i) the Stated Principal Balance of the Mortgage Loan
(or REO Property) as of the date of the Liquidation Event, plus (ii)
interest at the Remittance Rate from the Due Date as to which interest
was last paid or advanced to Certificateholders up to the last day of
the month in which such Liquidation Event occurred on the Stated
Principal Balance of such Mortgage Loan (or REO Property) outstanding
during each Collection Period that such interest was not paid or advanced,
plus (iii) any unreimbursed Advances and interest accrued and payable
thereon (subject to Section 5.10), minus (iv) the proceeds, if any, received
during the month in which such Liquidation Event occurred, to the extent
applied as recoveries of interest at the Remittance Rate and to principal
of the Mortgage Loan. With respect to each Loss Mortgage Loan with
24
<PAGE>
respect to which an Advance previously made or proposed to be made has
been determined to be a Nonrecoverable Advance an amount (not less than
zero) equal to (i) the Stated Principal Balance of the Mortgage Loan
(or REO Property) as of the date of such determination, plus (ii) interest
at the Remittance Rate from the Due Date as to which interest was last paid
or advanced to Certificateholders up to the last day of the month in which
such determination was made on the Stated Principal Balance of such Mortgage
Loan (or REO Property) outstanding during each Collection Period that such
interest was not paid or advanced, plus (iii) any unreimbursed Advances and
interest accrued and payable thereon, minus (iv) the proceeds, if any,
received during the month in which such determination was made, to the
extent applied as recoveries of interest at the Remittance principal of
the Mortgage Loan. With respect to each Mortgage Loan which has become the
subject of a Deficient Valuation, the difference between the principal
balance of the Mortgage Loan outstanding immediately prior to such
Deficient Valuation and the principal balance of the Mortgage Loan as
reduced by the Deficient Valuation.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"REMIC": A "real estate mortgage investment conduit" as defined
in Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting the trust created hereby and to be administered hereunder,
consisting of: (a) the Mortgage Loans as from time to time are subject to
this Agreement and all payments under and proceeds of the (i) Mortgage Loans
received after the Cut-off Date (other than payments of principal and
interest due and payable on the Mortgage Loans on or before the Cut-off
Date), together with all documents included in the related Mortgage Loan
File; (b) such funds or assets as from time to time are deposited in the
Certificate Account; (c) such funds or assets as from time to time are
deposited in the Trust Master Collection Account, Trust Primary Collection
Account, Collection Account, Escrow Account or REO Account; (d) any REO
Property; and (e) all Insurance Policies with respect to the Mortgage Loans
listed on the Mortgage Loan Schedule.
"REMIC I Uncertificated Interests": Each of the one hundred and
four interests with a principal balance and interest rate equal to that of
one of the Mortgage Loans (other than the Crown Participation) or one of the
Crown Hotel Notes.
"REMIC II": A segregated pool of assets consisting of one hundred
and four uncertificated regular interests issued under REMIC I.
"REMIC II Uncertificated Interests": Each of Uncertificated
Class I, Uncertificated Class II, Uncertificated Class III, Uncertificated
Class IV and Uncertificated Class V.
25
<PAGE>
"REMIC III": A segregated pool of assets consisting of
Uncertificated Class I, Uncertificated Class II, Uncertificated Class III,
Uncertificated Class IV and Uncertificated Class V.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and
related provisions, and proposed, temporary and final Treasury regulations
and any rulings promulgated thereunder, as the foregoing may be in effect
from time to time.
"Remittance Period": For any Distribution Date is the period
beginning after a Determination Date in the immediately preceding month (or
the Cut-off Date, in the case of the first Distribution Date) through the
related Determination Date.
"Remittance Rate": With respect to any Mortgage Loan, the per
annum rate equal to the excess of the related Mortgage Rate (without giving
affect to any modification or other reduction thereof following the Cut-off
Date) over the sum of the related Servicing Fee Rate and 0.015%. For this
purpose, if the related Mortgage Rate is calculated other than on the basis
of a 360-day year consisting of twelve 30-day months (a "30/360 basis"), such
Mortgage Rate will be recalculated on a 30/360 basis.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code.
"REO Account": One or more accounts established pursuant to
Section 5.06.
"REO Acquisition": The acquisition by the Special Servicer on
behalf of the Trustee for the benefit of the Certificateholders of any
Mortgaged Property.
"REO Mortgage Loan": Any Mortgage Loan as to which the related
Mortgaged Property has been acquired by the Special Servicer on behalf of the
Trustee through foreclosure or by deed in lieu of foreclosure, until the
Special Servicer has determined that all amounts that it reasonably expects
to recover from or on account of such Mortgage Loan have been recovered,
whether from Excess Condemnation Proceeds, Excess Insurance Proceeds,
Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds, REO Proceeds
or otherwise (in which case such Mortgage Loan shall no longer be an REO
Mortgage Loan).
"REO Proceeds": Proceeds (net of any directly related expenses,
including without limitation, Property Protection Expenses and Property
Improvement Expenses, incurred by the Special Servicer for the proper
operation, management and maintenance of the related REO Property) received
in respect of any REO Property (including, without limitation, proceeds
26
<PAGE>
from the rental of the related Mortgaged Property) and cash received in
connection with the final liquidation of the related REO Property.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee through foreclosure or by deed in lieu of
foreclosure.
"REO Status Report": With respect to any Mortgage Loan, shall have
the meaning set forth in the related Servicing Agreement.
"Required Rating": For purposes of the definitions of "Eligible
Account" and "Permitted Investments" the following ratings:
(a) with respect to commercial paper, short-term debt obligations
or other short-term deposits, the highest short-term rating
category of each Rating Agency (or if such obligations
are not rated by Fitch Investors Service, L.P., the other
Rating Agency); or
(b) with respect to long-term debt obligations, the highest long-
term rating category of each Rating Agency (or, if such
obligations are not rated by Fitch Investors Service, L.P.,
the other Rating Agency).
"Residual Certificate": Any of the Class R-I, Class R-II or Class
R-III Certificates.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to and working in its Corporate Trust Office and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security
for repayment of such Mortgage Loan.
"Senior Certificates": The Class A1, Class A1X, Class A2, Class
A2X, Class B, Class BCX, Class C, Class D and Class E Certificates.
"Servicer": The Master Servicer or the Special Servicer, as
applicable.
"Servicing Advance": Any expenses incurred by any Servicer
identified in this Agreement or the related Servicing Agreement as a
Servicing Advance.
27
<PAGE>
"Servicing Agreement": Each of the Servicing Agreements listed in
Exhibit H.
"Servicing Fee": With respect to any Mortgage Loan and either the
Primary Servicer or the Master Servicer, as defined in the related Servicing
Agreement. With respect to any Mortgage Loan and the Special Servicer, as
set forth in Section 5.13.
"Servicing Fee Rate": With respect to any Mortgage Loans, other
than the Crown Participation and the GMACCM Mortgage Loans, 0.100% and with
respect to the Crown Participation and any GMACCM Mortgage Loans, 0.155%.
"Servicing Officer": With respect to any Servicer, any Assistant
Treasurer, Assistant Secretary, Assistant Vice President, Vice President or
other employee of such Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans under this Agreement or
the related Servicing Agreement and authorized to act on behalf of such
Servicer, as designated by inclusion on a list of such Persons furnished to
the Trustee and each other Servicer by the related Servicer, as such list may
from time to time be amended.
"Servicing Transfer Date": The date after the occurrence of a
Servicing Transfer Event on which the Special Servicer receives the
information, documents and records required to be delivered thereto pursuant
to Section 6.02(c) of the related Servicing Agreement.
"Servicing Transfer Event": The occurrence of any of the following
with respect to a Mortgage Loan: (i) such Mortgage Loan becomes a Defaulted
Mortgage Loan; (ii) the related Mortgagor has entered into or consented to
bankruptcy, appointment of a receiver or conservator or a similar insolvency
or similar proceeding, or the Mortgagor has become the subject of a decree
or order for such proceeding which shall have remained in force undischarged
or unstayed for a period of 60 days; (iii) the Master Servicer or the Primary
Servicer shall have received notice of the foreclosure or proposed
foreclosure of any other lien on the Mortgaged Property; (iv) in the judgment
of the Master Servicer or the Primary Servicer, a payment default has
occurred and is not likely to be cured by the related Mortgagor within 60
days; (v) the related Mortgagor admits in writing its inability to pay its
debts generally as they become due, files a petition to take advantage of any
applicable insolvency or reorganization statute, makes an assignment for the
benefit of its creditors, or voluntarily suspends payment of its obligations;
(vi) any other material default has, in the Master Servicer's judgment or the
Primary Servicer's judgment, occurred which is not reasonably susceptible of
cure within the time periods and on the terms and conditions, if any,
provided in the related Mortgage; (vii) the related Mortgaged Property
becomes REO Property; (viii) if for any reason, the Primary Servicer cannot
enter into an assumption agreement pursuant to Section 4.08 of the related
Servicing Agreement or (ix) an event has occurred which has materially and
adversely affect the value of the related Mortgaged Property in the
reasonable judgment of the Primary Servicer or the Master Servicer.
28
<PAGE>
"Single Certificate": For purposes of Section 6.03, a hypothetical
Certificate of any Class of Certificates evidencing a $1,000 denomination.
"Specially Serviced Mortgage Loan": Any Mortgage Loan with respect
to which a Servicing Transfer Date has occurred and which has not ceased to
be a Specially Serviced Mortgage Loan pursuant to Section 5.12.
"Specially Serviced Mortgage Loan Status Report": With respect to
any Mortgage Loan, shall have the meaning set forth in the related Servicing
Agreement.
"Special Servicer": Banc One Management and Consulting
Corporation, an Ohio corporation, or its successor servicer appointed as such
as herein provided.
"Startup Day": The Delivery Date.
"State Tax Laws": The laws of the states of New York,
Massachusetts and Texas as well as any state the applicability of which to
the Trust or the REMICs shall have been confirmed to the Trustee in writing
either by the delivery to the Trustee of an Opinion of Counsel to such
effect, or by the delivery to the Trustee of a written notification to such
effect by the taxing authority of such state.
"Stated Principal Balance": With respect to any Mortgage Loan
(other than an REO Mortgage Loan), as of any date of determination, (a) the
Cut-off Date Balance, minus (b) the sum, without duplication, of:
(i) the principal portion of each Monthly Payment and Balloon
Payment due on such Mortgage Loan after the Cut-off Date, to the extent
received from the Mortgagor or advanced and distributed to
Certificateholders before such date of determination;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date, to the extent distributed to
Certificateholders before such date of determination;
(iii) the principal portion of all Insurance Proceeds and
Liquidation Proceeds received with respect to such Mortgage
Loan after the Cut-off Date, to the extent distributed to
Certificateholders before such date of determination; and
(iv) any reduction in the outstanding principal balance of such
Mortgage Loan resulting from a Deficient Valuation that occurred prior
to the end of the Collection Period for the most recently ended
Distribution Date.
29
<PAGE>
With respect to any REO Mortgage Loan, as of any date of determination, an
amount (not less than zero) equal to (x) the Stated Principal Balance of the
related Mortgage Loan as of the date of the related REO Acquisition, minus
(y) the sum of:
(i) the principal portion of each P&I Advance made with respect
to such REO Mortgage Loan that was distributed to Certificateholders
before such date of determination; and
(ii) the principal portion of all Insurance Proceeds, Liquidation
Proceeds and REO Proceeds received with respect to such REO Mortgage
Loan, to the extent distributed to Certificateholders before such date
of determination.
A Mortgage Loan shall be deemed to be part of the Trust Fund and to have an
outstanding Stated Principal Balance through and including the Distribution
Date on which the proceeds, if any, received in connection with a Liquidation
Event in respect thereof are to be distributed to Certificateholders.
"Tax Matters Person": The "tax matters person" (as defined in the
REMIC Provisions) of the REMIC created hereunder.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of the Trust Fund due to its classification as
a REMIC under the REMIC Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
State Tax Laws.
"Transfer Date": With respect to any Mortgage Loan, shall have the
meaning set forth in the related Servicing Agreement.
"Trust Fund": REMIC I, REMIC II and REMIC III.
"Trust Master Collection Account": Each of the separate accounts
created and maintained by the Master Servicer for the Trustee, for the
benefit of the Certificateholders, pursuant to Section 5.02 of the related
Servicing Agreement for the Mortgage Loans.
"Trust Primary Collection Account": Each of the separate accounts
created and maintained by the Primary Servicer for the Trustee, for the
benefit of the Certificateholders, pursuant to Section 4.02 of the related
Servicing Agreement for the Mortgage Loans.
30
<PAGE>
"Trustee": State Street Bank and Trust Company, a Massachusetts
banking corporation or its successor in interest in its capacity as Trustee
hereunder, or any successor trustee appointed as herein provided.
"UCC Financing Statement": A financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana or the Commonwealth of Puerto
Rico, the comparable provisions of Louisiana or Puerto Rico law, as
applicable.
"Uncertificated Interest I": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class A1 Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest II": An interest in REMIC II with a
principal balance equal to the sum of the Class Balance of the Class A2
Certificates which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest III": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class B Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest IV": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class C Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest V": An interest in REMIC II with a
principal balance equal to the sum of the Class Balances of the Class D,
Class E, Class F, Class G and Class NR Certificates which accrues interest
at the Weighted Average Remittance Rate.
"Underwriter": J.P. Morgan Securities Inc.
"United States Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in,
or under the laws of, the United States or any political subdivision thereof,
or an estate or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all times
during the term of this Agreement, 96% of all the Voting Rights
shall be allocated among the Class A1, Class A2, Class B,
Class C, Class D, Class E, Class F and Class NR Certificates in
proportion to the respective Class Balances, 1% of all Voting Rights
shall be allocated to each of the Class A1X, Class A2X and Class BCX
31
<PAGE>
Certificates, and 0.331/3% of all Voting Rights shall be allocated to
each of the Class R-I, Class R-II and Class R-III Certificates. Voting
Rights allocated to a Class of Certificateholders shall be allocated
among such Certificateholders in proportion to the Percentage Interests
evidenced by their respective Certificates. Allocation of Realized
Losses and Collateral Value Adjustments to a Class of Certificates and any
other event which changes such Class Balance will also result in a
corresponding change to such Class' Voting Rights.
"Weighted Average Remittance Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to four decimal places, of the
Remittance Rates in effect for the Mortgage Loans as of the commencement of
the related Collection Period, weighted on the basis of the respective Stated
Principal Balances of such Mortgage Loans outstanding immediately following
the Distribution Date in the related Collection Period.
SECTION 1.02 Calculations.
Unless otherwise specified, all calculations described herein shall
be made on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 1.03 Rules of Construction.
Notwithstanding anything set forth herein, the obligations and
duties of the Master Servicer, Special Servicer and Primary Servicers set
forth in the Servicing Agreements shall remain in effect and shall not be
deemed waived, reduced or otherwise limited by the terms of this Agreement
unless expressly waived, reduced or otherwise limited herein. Any action or
delivery which is required pursuant to the terms hereof which falls on a day
which is not a Business Day will be due on the immediately following Business
Day.
32
<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign to the Trustee without recourse all the right,
title and interest of the Depositor, including any security interest therein
for the benefit of the Depositor, in, to and under the mortgage loans and the
Crown Participation identified on the Mortgage Loan Schedule (the "Mortgage
Loans"), all other assets included or to be included in the Trust Fund for
the benefit of the Certificateholders and the Servicing Agreements to the
extent such agreements relate to the Mortgage Loans. Such assignment
includes all interest and principal received or receivable on or with respect
to the Mortgage Loans (other than payments of principal and interest due and
payable on the Mortgage Loans on or before the Cut-off Date). The transfer
of the Mortgage Loans and related property accomplished hereby is absolute
and, notwithstanding Section 12.07, is intended by the parties to constitute
a sale.
(b) In connection with the Depositor's assignment, the Depositor
does hereby deliver to, and deposit with, the Trustee, or the initial
Custodian as the agent of the Trustee, the following documents or instruments
(or copies thereof as permitted by this Section) for each Mortgage Loan
(other than the Crown Participation) so assigned
(i) the original or, if accompanied by a "lost note" affidavit,
a copy of the Mortgage Note, endorsed by MGT or the prior
holder of record in blank or to the order of the Trustee;
(ii) the original Mortgage, and any intervening assignments (or
certified copies of such assignments) thereof, in each case
with evidence of recording indicated thereon, or certified
copies thereof if not returned from the applicable recording
office;
(iii) originals or certified copies of any related Assignment of
Leases and Rents and any related Security Agreement (if, in
either case, such item is a document separate from the
Mortgage), any intervening assignments of each such document
or instrument, and any related UCC Financing Statements;
(iv) an assignment of the Mortgage, executed by MGT or the
prior holder of record in blank or to the order of the
Trustee, with the assignment to the Trustee in the
following form: "State Street Bank and Trust Company,
33
<PAGE>
as Trustee for J.P. Morgan Commercial Mortgage Finance Corp.
Mortgage Pass-Through Certificates Series 1996-C3", in
recordable form;
(v) assignments of any related Assignment of Leases and Rents and
any related Security Agreement (if, in either case, such item
is a document separate from the Mortgage), executed by MGT or
the prior holder of record in blank or to the order of the
Trustee, with the assignment to the Trustee in the following
form: "State Street Bank and Trust Company, as Trustee for
J.P. Morgan Commercial Mortgage Finance Corp. Mortgage
Pass-Through Certificates Series 1996-C3";
(vi) originals or certified copies of all assumption, modification
and substitution agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been modified
or the Mortgage or Mortgage Note has been assumed;
(vii) the originals or certificates of a lender's title insurance
policy issued on the date of the origination of such Mortgage
Loan or, with respect to each Mortgage Loan not covered by a
lender's title insurance policy, an attorney's opinion of title
given by an attorney licensed to practice law in the
jurisdiction where the Mortgaged Property is located;
(viii) with respect to any Mortgage Loan secured by a leasehold
interest, a certified copy of the related ground lease;
(ix) either (i) the originals of all intervening assignments,
including warehousing assignments, with evidence of
recording thereon, (ii) copies of such assignments
certified by a title company or escrow company to
be true and complete copies thereof where the originals
have been transmitted for recording until such time as the
originals are returned by the public recording office or
(iii) copies of such assignments certified by the public
recording offices where such assignments were recorded to
be true and complete copies thereof in those instances
where the public recording offices retain the original or
where the original recorded assignments are lost;
(x) either (i) copies of the UCC-1 financing statements and any
related continuation statements, each showing the mortgagors as
debtor and the originator as secured party and each with
evidence of filing thereon, together with a copy of each
intervening UCC-2 or UCC-3 financing statement showing a
complete chain of assignment from the secured party named in
such UCC-1 financing statement to the Trustee with evidence of
34
<PAGE>
filing thereon disclosing the assignment to the Trustee of the
security interest in the personal property securing the Mortgage
Loan or (ii) copies of such financing statements certified to be
true and complete copies thereof in instances where the original
financing statements have been sent to the appropriate public
filing office for filing;
(xi) the original appraisal; and
(xii) any escrow, guarantee and environmental liability agreement;
and for the Crown Participation, the original Crown Participation Agreement
and the original assignment of the Crown Participation to the Trustee.
(c) The Depositor shall, as to each Mortgage Loan on the Mortgage
Loan Schedule, promptly (and in any event within 45 days of the Delivery
Date) cause the assignment of the Mortgage specified in clause (iv) above to
be submitted for recording or filing, at its own expense, in the appropriate
public office for real property records. Any such assignment delivered in
blank shall be completed to the order of the Trustee, in the following form:
"State Street Bank and Trust Company, as Trustee for J.P. Morgan Commercial
Mortgage Finance Corp. Mortgage Pass-Through Certificates Series 1996-C3"
prior to recording. Each such assignment shall reflect that it should be
returned by the public recording office following recording to State Street
Bank and Trust Company as the initial Custodian. If any such assignment is
lost or returned unrecorded or unfiled because of a defect therein, the
Depositor shall promptly prepare or cause to be prepared a substitute
therefor or cure such defect, as the case may be, and thereafter cause the
same to be duly recorded or filed.
(d) The Depositor shall complete the endorsements on those
Mortgage Notes delivered in blank (or cause such to be completed) to the
order of the Trustee.
SECTION 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt, subject to the provisions of Section 2.01 and this
Section 2.02 of the documents specified in clauses (i)-(v) and (vii) of
Section 2.01(b), and declares that it or the Custodian on its behalf holds
and will hold such documents and the other documents delivered to it or the
Custodian constituting the Mortgage Loan Files, and that it holds or will
hold such other assets included in the Trust Fund, in trust for the exclusive
use and benefit of all present and future Certificateholders.
(b) On or prior to 180 days following the Delivery Date, the
Trustee shall deliver to the Depositor and the Master Servicer, or shall
cause the Custodian to deliver to the Depositor, the Trustee and the
Master Servicer, a Final Certification in a form acceptable to the
35
<PAGE>
Depositor (the "Final Certification") to the effect that it has reviewed
the Mortgage Loan Documents delivered to it hereunder and has determined
that all documents required to be delivered pursuant to Section 2.01(b)
have been received by the Trustee. Notwithstanding that the Final
Certification is made by a Custodian, the Trustee shall in all cases
be primarily liable for all statements made therein. In performing
the reviews called for herein, the Trustee and Custodian, acting on its
behalf, may conclusively assume the due execution and genuineness of
any such document and the genuineness of any signature thereon. It is
understood that the scope of the review called for is limited solely
to confirming, after receipt of the documents listed in Section 2.01,
that such documents have been executed, received and recorded, if
applicable, and relate to the Mortgage Loans identified in the Mortgage
Loan Schedule.
(c) If, in the process of reviewing the Mortgage Loan Files, the
Trustee or the Custodian finds any document or documents constituting a part
of a Mortgage Loan File not to have been properly executed, or to be missing
or to be defective on its face in any material respect, the Trustee shall
promptly so notify, or shall cause the Custodian promptly so to notify, the
Master Servicer and the Depositor. If the Depositor does not correct or cure
such omission or defect within 60 days from the date of such notice the
Depositor shall purchase such Mortgage Loan from the Trust Fund at its
Purchase Price within 90 days from the date of such notice. The Purchase
Price for any such Mortgage shall be deposited or caused to be deposited by
the Master Servicer in the Trust Master Collection Account and, upon receipt
by the Trustee of written notification of such deposit signed by a Servicing
Officer, the Trustee or any Custodian, as the case may be, shall release to
the Depositor the related Mortgage Loan File and such Mortgage Loan and the
Trustee shall execute and deliver such instruments of transfer or assignment
prepared by the Master Servicer, in each case without recourse, as shall be
necessary to vest in the Depositor or its designee, as the case may be, any
Mortgage Loan released pursuant hereto and thereafter such Mortgage Loan
shall not be part of the Trust Fund. It is understood and agreed that the
obligation of the Depositor to so cure or purchase any Mortgage Loan as to
which a material defect in or omission of a constituent document exists shall
constitute the sole remedy respecting such defect or omission available to
Certificateholders or the Trustee on behalf of the Certificateholders.
SECTION 2.03 Representations and Warranties of the Depositor,
the Master Servicer and the Special Servicer;
Assignment of Rights.
(a) The Depositor hereby represents and warrants to and covenants
with the Trustee, the Master Servicer and the Special Servicer, as of the
Delivery Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
36
<PAGE>
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's charter or
bylaws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is
a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, the
execution, delivery and performance of this Agreement by the Depositor
has been duly authorized, and the Depositor has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Master Servicer and the Special Servicer,
constitutes a valid, legal and binding obligation of the Depositor,
enforceable against the Depositor in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity
or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, or any of the provisions of any indenture, mortgage,
contract, instrument, or other document to which such Depositor 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 its property pursuant
to the terms of any such indenture, mortgage, contract, instrument, or
other document which violation, in the Depositor's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Depositor to perform its obligations under this
Agreement or the financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor which, if determined
adversely to the Depositor, would prohibit the Depositor from entering
into this Agreement or, in the Depositor's good faith reasonable judgment,
is likely to materially and adversely affect either the ability of the
34
<PAGE>
Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(viii) At the time of the assignment of the Mortgage Loans to the
Trust Fund hereunder, the Depositor had good title to and was the sole
owner of, each Mortgage Loan, free and clear of any pledge, lien,
encumbrance or security interest (other than the rights to servicing
and related compensation) and such assignment validly transfers
ownership of the Mortgage Loans to the Trust Fund free and clear of
any pledge, lien, encumbrance or security interest.
(b) Each of the Master Servicer and the Special Servicer hereby
represents, warrants and covenants to the Trustee and the Depositor, as of
the Delivery Date, that:
(i) The execution and delivery of this Agreement by such
Servicer, and the performance and compliance with the terms of this
Agreement by such Servicer, will not violate such Servicer's charter
or bylaws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result
in the breach of, any material agreement or other instrument to which
it is a party or which is applicable to it or any of its assets.
(ii) Such Servicer has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iii) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the other Servicer and the Depositor,
constitutes a valid, legal and binding obligation of such Servicer,
enforceable against such Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity
or at law.
(iv) Such Servicer is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in such Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of such Servicer to perform its obligations
under this Agreement or the financial condition of such Servicer.
38
<PAGE>
(v) No litigation is pending or, to the best of such Servicer's
knowledge, threatened against such Servicer which would prohibit such
Servicer from entering into this Agreement or, in such Servicer's good
faith reasonable judgment, is likely to materially and adversely affect
either the ability of such Servicer to perform its obligations under this
Agreement or the financial condition of such Servicer.
(vi) Each of the representations made by such Servicer in each
of the Servicing Agreements to which it is a party is true and correct
as of the Delivery Date.
(vii) Each Servicing Agreement continues in effect and each
Servicer represents that it has duly performed and continues to perform
its obligations thereunder and is not aware of any event of default or
any other event that with the passage of time would become an event of
default under any Servicing Agreement to which it is a party.
(c) The Depositor, as assignee of MGT under the Loan Sale
Agreement and the Crown Participation Agreement, hereby assigns to the
Trustee for the benefit of the Certificateholders all of its rights, title
and interest (but none of its obligations) in respect of the Loan Sale
Agreement and the Crown Participation Agreement.
(d) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall survive the execution and
delivery of this Agreement, and shall inure to the benefit of the Persons for
whose benefit they were made for so long as the Trust Fund remains in
existence. Upon discovery by the Depositor, the Master Servicer, the Special
Servicer or the Trustee of any breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the other parties.
SECTION 2.04 Repurchase of Mortgage Loans for Breaches of
Representation and Warranty.
(a) Within 90 days of the earlier of discovery by the Depositor
of, or receipt by the Depositor of written notice from the Master Servicer,
the Special Servicer, the Trustee or any Certificateholder, specifying in
reasonable detail the existence of a breach of any representation or
warranty of the Depositor set forth in Section 2.03(a) or of MGT assigned
to the Trustee pursuant to Section 2.03(c) for the benefit of the
Certificateholders which materially and adversely affects the value
of any Mortgage Loan or the interest of any Certificateholder therein, the
Depositor shall at its option (i) (A) in all material respects cure such
breach or (B) purchase the affected Mortgage Loan from the Trustee at the
Purchase Price or (ii) cause MGT at its option (A) in all material respects
to cure such breach or (B) to purchase the affected Mortgage Loan from the
Trustee at the Purchase Price.
(b) The purchase of any Mortgage Loan by the Depositor or MGT
pursuant to Section 2.04(a) shall be effected by delivering the Purchase
Price therefor to the Master
39
<PAGE>
Servicer for deposit in the Master Trust Collection Account. The Trustee,
upon receipt of an Officers' Certificate from the Master Servicer to the
effect that such deposit has been made, shall release or cause to be released
to the Depositor, MGT or its designee, as applicable, the related Mortgage
Loan File and shall execute and deliver such instruments of transfer or
assignment (in recordable form if recording is appropriate), in each case
without recourse, as shall be necessary to vest in the Depositor, MGT or
its designee, as applicable, any Mortgage Loan released pursuant hereto.
In connection with such repurchase, the Master Servicer shall release to
the Depositor or MGT all documents and records maintained by the Master
Servicer and requested by the Depositor or MGT; provided, that the
Master Servicer may retain copies of such documents and records at its
own expense. The Depositor shall be responsible for the payment of all
reasonable expenses of the Trustee and the Master Servicer incurred in
connection with such repurchase.
(c) It is understood and agreed that the provisions set forth in
Section 2.04(a) of this Agreement shall constitute the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any breach of the representations and
warranties contained in Section 2.03(a) of this Agreement, in the Loan Sale
Agreement, or, except as otherwise specifically provided, in the Crown
Participation Agreement.
SECTION 2.05 Execution of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage
Loans, the Loan Sale Agreement, the Crown Participation Agreement and the
Servicing Agreement to the extent set forth herein and, concurrently with
such assignment, has executed and caused the Certificate Registrar to
authenticate and deliver to or upon the order of the Depositor, in exchange
for the Mortgage Loans, Certificates in authorized denominations evidencing
beneficial ownership of the entire Trust Fund.
40
<PAGE>
ARTICLE III
SERVICING
SECTION 3.01 Servicing Agreements.
The Master Servicer and Special Servicer have entered into the
Servicing Agreements pursuant to which they have assumed certain servicing
obligations, together with the related Primary Servicer, on or prior to the
Delivery Date with respect to the related Mortgage Loans. The Master
Servicer and the Special Servicer shall continue to service the Mortgage
Loans pursuant to the terms of this Agreement and the Servicing Agreements
on and after the Delivery Date. For purposes of each Servicing Agreement and
the Mortgage Loans, the Trustee, solely in its capacity as trustee hereunder
but not in its individual corporate capacity, shall have the rights and
obligations of a Related Owner as set forth in such Servicing Agreement. The
Master Servicer and the Special Servicer shall service and administer the
Mortgage Loans for the benefit of the Certificateholders.
SECTION 3.02 Conflict with Servicing Agreement.
Except as otherwise provided in Section 1.03, in the case of any
conflict between the provisions of this Agreement and any Servicing
Agreement, the provisions of this Agreement shall control.
SECTION 3.03 REMIC Administration.
(a) The Trustee shall make an election to treat each of REMIC I,
REMIC II and REMIC III as a REMIC under the Code and if necessary, under
State Tax Laws. Each such election will be made on Form 1066 or other
appropriate federal tax or information return (including Form 8811) or any
appropriate state return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. For the purposes of the
REMIC I election in respect of the Trust Fund, the one hundred and four REMIC
I Uncertificated Interests shall be designated as the "regular interests" and
the Class R-I Certificates shall be designated as the sole class of "residual
interest" in REMIC I. For the purposes of the REMIC II election in respect of
the Trust Fund, the REMIC II Uncertificated Interests shall be designated as
the "regular interests" and the Class R-II Certificates shall be designated as
the sole class of "residual interest" in REMIC II. For the purposes of the
REMIC III election in respect of the Trust Fund, the Class A1, Class A1X,
Class A2, Class A2X, Class B, Class C, Class D, Class E, Class F, Class G and
Class NR Certificates and the Class BCX component B and Class BCX component C
shall be designated as the "regular interests" and the Class R-III
Certificates shall be designated as the sole class of "residual interest" in
REMIC III. To the extent the affairs of the Trust Fund are within their
control, the Master Servicer and the Trustee shall not permit the creation
of any "interests" (within the meaning of Section 860G of the Code) in REMIC I,
41
<PAGE>
REMIC II or REMIC III other than the REMIC I Uncertificated Interests, the
REMIC II Uncertificated Interests and the Certificates.
(b) The Delivery Date is hereby designated as the "Startup Day"
of the REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the Class R-I Certificate is hereby designated,
and by the acceptance of the Class R-I Certificate agrees to act, as Tax
Matters Person for REMIC I. The Holder of the Class R-II Certificate is
hereby designated, and by the acceptance of the Class R-II Certificate agrees
to act, as Tax Matters Person for REMIC II. The Holder of the R-III
Certificate is hereby designated, and by acceptance of the Class R-III
Certificate, agrees to act, as Tax Matters Person for REMIC III.
(d) The Tax Matters Person hereby irrevocably authorizes the
Trustee to be its attorney-in-fact for purposes of signing all Tax Returns.
(e) The Trustee shall prepare or cause to be prepared all of the
Tax Returns that it reasonably determines are required with respect to either
REMIC I, REMIC II or REMIC III created hereunder and shall sign and file such
Tax Returns in a timely manner. The expenses of preparing such returns shall
be borne by the Trustee without any right of reimbursement therefor.
(f) The Trustee shall provide (i) to any Transferor of a Class R-
I, Class R-II or Class R-III Certificate such information as is necessary for
the application of any tax relating to the transfer of a Class R-I, Class R-
II and Class R-III Certificate to any Person who is not a Permitted
Transferee, (ii) to the Certificateholders such information or reports as are
required by the Code, the REMIC Provisions or State Tax Laws including
reports relating to interest, original issue discount and market discount or
premium (using the Prepayment Assumption) and (iii) to the Internal Revenue
Service the name, title, address and telephone number of the person who will
serve as the representative of each of REMIC I, REMIC II and REMIC III.
(g) The Trustee shall take such actions and shall cause each of
REMIC I, REMIC II and REMIC III created hereunder to take such actions as are
reasonably within the Trustee's control and the scope of its duties more
specifically set forth herein as shall be necessary to maintain the status
thereof as REMICs under the REMIC Provisions (and the Master Servicer shall
assist the Trustee, to the extent reasonably requested by the Trustee to do
so). None of the Master Servicer, the Special Servicer or the Trustee shall
knowingly or intentionally take any action, cause either of REMIC I, REMIC
II or REMIC III to take any action or fail to take (or fail to cause to be
taken) any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or
not taken, as the case may be, could (i) endanger the status of either
REMIC I, REMIC II or REMIC III as a REMIC or (ii) result in the imposition
of a tax under the REMIC Provisions
43
<PAGE>
upon either REMIC I, REMIC II or REMIC III (including but not limited to the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) (either such event, an "Adverse REMIC Event") unless such party
receives an Opinion of Counsel (at the expense of the party seeking to take
such action or, if such party fails to pay such expense, and such party
determines that taking such action is in the best interest of the Trust
Fund and the Certificateholders, at the expense of the Trust Fund, but in
no event at the expense of such party) to the effect that the contemplated
action will not, with respect to either REMIC I, REMIC II or REMIC III
created hereunder, endanger such status or, unless such party determines
in its sole discretion to indemnify the Trust Fund against such tax, result
in the imposition of such a tax.
(h) In the event that any tax is imposed on "prohibited
transactions" of REMIC I, REMIC II or REMIC III created hereunder as defined
in Section 860F(a)(2) of the Code, on "net income from foreclosure property"
of REMIC I, REMIC II or REMIC III as defined in Section 860G(c) of the Code,
or any other tax is imposed by the Code or any applicable provisions of state
or local tax laws, such tax shall be charged (i) to the Master Servicer, if
such tax arises out of or results from a breach by the Master Servicer of any
of its obligations under this Agreement, (ii) to the Special Servicer, if
such tax arises out of or results from a breach by the Special Servicer of
any of its obligations under this Agreement, (iii) to the Trustee, if such
tax arises out of or results from a breach by the Trustee of any of its
obligations under this Agreement or otherwise, (iv) against amounts on
deposit in the Certificate Account and on the Distribution Date(s) following
such reimbursement the aggregate of such taxes shall be allocated in
reduction of the Interest Distribution Amount on each Class entitled thereto
in the same manner as if such taxes constituted a Prepayment Interest
Shortfall.
(i) The Trustee and the Master Servicer shall, for federal income
tax purposes, maintain books and records with respect to REMIC I, REMIC II
and REMIC III on a calendar year and on an accrual basis or as otherwise may
be required by the REMIC Provisions.
(j) Following the Startup Day, neither the Master Service nor the
Trustee shall accept any contributions of assets to REMIC I, REMIC II and
REMIC III unless the Master Servicer and the trustee shall have received an
Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in REMIC I,
REMIC II and REMIC III will not cause REMIC I, REMIC II and REMIC III to fail
to qualify as REMICs at any time that any Certificates are outstanding or
subject REMIC I, REMIC II and REMIC III to any tax under the REMIC Provisions
or other applicable provisions of federal, state and local law or ordinances.
(k) Neither the Master Servicer nor the Trustee shall enter into
any arrangement by which REMIC I, REMIC II and REMIC III will receive a fee
or other compensation for services nor, to the extent reasonably within their
control, permit either such
43
<PAGE>
REMIC to receive an income from assets other than "qualified mortgages" as
defined in Section 8650G(a)(3) of the Code or "permitted investments" as
defined in Section 860G(a)(5) of the Code.
(l) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury regulations, the "latest possible maturity date" by which the Class
Balance of each Class of Certificates representing a regular interest in
REMIC III and the Uncertificated Class would be reduced to zero is April 25,
2028, which is the second anniversary of the date at which all of the
Mortgage Loans have zero balances, assuming no prepayments and that the
Mortgage Loans which are Balloon Loans fully amortize according to their
amortization schedule and no Balloon Payment is made.
(m) Within 30 days after the Delivery Date, the Trustee shall
prepare and file with the Internal Revenue Service From 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for REMIC I, REMIC II and REMIC III.
(n) None of the Trustee, the Master Servicer or the Special
Servicer shall sell or dispose of any of the Mortgage Loans (except in
connection with (i) the default, imminent default or foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgage Property acquired by deed in lieu of foreclosure, (ii) the
bankruptcy of REMIC I, REMIC II and REMIC III, (iii) the termination of REMIC
I, REMIC II and REMIC III pursuant to Article XI of this Agreement or (iv)
a purchase of Mortgage Loans pursuant to Article II of this agreement) nor
acquire any assets for REMIC I, REMIC II and REMIC III, nor sell or dispose
of any investments in the Custodial Account or the Certificate Account for
gain, nor accept any contributions to REMIC I, REMIC II and REMIC III after
the Delivery Date, unless it has received an Opinion of Counsel that such
sale or disposition will not affect adversely the status of REMIC I, REMIC
II and REMIC III as REMICs.
(o) The Depositor shall provide or cause to be provided to the
Trustee, within ten (10) days after the Delivery Date, and thereafter on an
ongoing basis, all information or data requested by the Trustee that the
Trustee reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including without
limitation, the price, yield, original issue discount, market discount or
premium, Prepayment Assumption and projected cash flow (based upon the
Prepayment Assumption) of the Certificates. In addition, the Master Servicer
and the Depositor shall provide on a timely basis to the Trustee or its
designee such information with respect to the Trust Fund as is in
its possession and reasonably requested by the Trustee to enable it to
perform its obligations under this Article. The Trustee shall be entitled
to rely conclusively upon all such information so provided to it without
recalculation or other investigation.
44
<PAGE>
(p) The Trustee shall be entitled to reasonable compensation and
to the reimbursement of its reasonable expenses incurred in the performance
of its duties under this Section 3.03 as may be agreed upon by the Trustee
and the Depositor, provided that the Trustee shall pay out of its own funds,
without any right of reimbursement, any and all ordinary expenses of the
Trust Fund incurred in the performance of its duties under this Article but
shall be reimbursed, except as otherwise expressly provided for herein by the
Trust Fund for any of its extraordinary expenses, including any taxes or tax-
related payments, any expenses involved in any tax examination, audit or
proceeding, and the expense of any tax-related Opinion of Counsel or other
professional advice requested by the Trustee for the benefit or protection
of the Certificateholders.
45
<PAGE>
ARTICLE IV
THE MASTER SERVICER
SECTION 4.01 The Master Servicer.
The Master Servicer shall service and administer the Mortgage Loans
on behalf of the Trustee and in the best interests of and for the benefit of
the Certificateholders in accordance with the terms of this Agreement, the
related Servicing Agreements, the Crown Participation Agreement, the terms
of the respective Mortgage Loans and Accepted Servicing Practices.
SECTION 4.02 Mortgage Loan Schedule.
On the Delivery Date the Master Servicer shall prepare and deliver
for attachment to this Agreement the Mortgage Loan Schedule in the form of
Exhibit G hereto. The Master Servicer represents and warrants to the
Depositor, the Trustee and the other Servicers that the information set forth
in the Mortgage Loan Schedule accurately represents the information provided
by each related Primary Servicer.
SECTION 4.03 Adjustment of Master Servicer's Compensation.
Notwithstanding anything set forth in the related Servicing
Agreement, the Master Servicer's compensation for the period ending on a
Distribution Date shall be reduced (but not below zero) by an amount equal
to any excess of any Prepayment Interest Shortfall over any Prepayment
Interest Excess for such Distribution Date. The Master Servicer shall be
entitled to retain on any Distribution Date the lesser of (a) any amounts by
which its compensation shall have been reduced pursuant to the immediately
preceding sentence on prior Distribution Dates which have not been paid to
the Master Servicer pursuant to this sentence on prior Distribution Dates,
and (b) the sum of (i) any excess of any Prepayment Interest Excess for such
Distribution Date over any Prepayment Interest Shortfall for such
Distribution Date and (ii) any Prepayment Premium for such Distribution Date.
For purposes of this Section, the Master Servicer's compensation shall
include the Master Servicing Fee and any reinvestment income payable to the
Master Servicer pursuant to Section 5.03(a)(ix) of any Servicing Agreement.
SECTION 4.04 Payment of Rating Agency Fees.
The Master Servicer shall pay the fees of each Rating Agency
payable in connection with maintaining a rating on the Certificates. Such
payment shall not be an Advance and the Master Servicer shall not seek
reimbursement therefor from the Trust Fund.
46
<PAGE>
SECTION 4.05 Implementation of Operations and Maintenance Plans.
(a) To the extent an operations and maintenance plan is required
to be established and executed pursuant to the terms of the related Mortgage
Loan Documents, the Master Servicer shall request from the Primary Servicer
written confirmation thereof no later than such time as such plan is required
to be established or completed.
(b) To the extent any actions or remediations are required to have
been taken or completed pursuant to the terms of the related Mortgage Loan
Documents, the Master Servicer shall request from the Primary Servicer
written confirmation thereof no later than such time as such actions or
remediations are required to have been taken or completed.
(c) To the extent a Primary Servicer shall fail to promptly
respond to any inquiry described in clause (a) or clause (b) above, the
Master Servicer shall determine whether the related Primary Servicer has
failed to perform its obligations under the related Servicing Agreement.
SECTION 4.06 Experts.
To the extent the Master Servicer, in connection with performing
its obligations under Section 3.03 or Section 4.05, shall reasonably
determine that it is necessary to retain a third party expert, the costs of
retaining such expert shall be a Servicing Advance.
SECTION 4.07 Dissemination of Information.
The Master Servicer may disseminate the information provided under
Section 6.03(a); provided, however, that such information shall not include
the name of the related Mortgagor or the related Mortgaged Property or the
address thereof.
47
<PAGE>
ARTICLE V
OBLIGATIONS OF THE SPECIAL SERVICER
SECTION 5.01 The Special Servicer.
The Special Servicer, as independent contract servicer, shall,
notwithstanding any other provisions hereof, service and administer the
Specially Serviced Mortgage Loans and REO Property on behalf of and in the
best interests of and for the benefit of the Certificateholder in accordance
with this Agreement, the related Servicing Agreement, the Crown Participation
Agreement and Accepted Special Servicing Practices.
SECTION 5.02 Transfer to Special Servicing.
Following the occurrence of a Servicing Transfer Date with respect
to any Mortgage Loan, the Special Servicer shall assume certain servicing
obligations with respect to such Mortgage Loan pursuant to Section 6.02 of
the related Servicing Agreement.
SECTION 5.03 Servicing of Specially Serviced Mortgage Loans.
(a) From time to time, following the occurrence of a Servicing
Transfer Event, the Special Servicer shall request from the Trustee the name
of the current Directing Certificateholder. Upon receipt of the name of such
current Directing Certificateholder from the Trustee, the Special Servicer
shall notify the Directing Certificateholder of the occurrence of such
Servicing Transfer Event. Officers of the Special Servicer shall, at the
request of the Directing Certificateholder, be reasonably available during
regular business hours to discuss with such Certificateholder objectives and
strategies.
(b) Subject to Sections 5.03(c) and 5.15 below and the other terms
of this Agreement, in servicing and administering any Specially Serviced
Mortgage Loan or REO Property, the Special Servicer shall have full power and
authority to do any and all things in connection with such servicing and
administration that it may deem in its best judgment necessary or advisable
including, without limitation, to execute and deliver on behalf of the
Trustee and the Certificateholders any and all instruments of satisfaction
or cancellation or of partial release or full release or discharge and all
other comparable instruments with respect to such Specially Serviced Mortgage
Loan or such REO Mortgage Loan or to agree to any modification, waiver or
amendment of any term and to defer, reduce or forgive payment of interest
and/or principal of any such Specially Serviced Mortgage Loan. The Special
Servicer may extend the scheduled maturity date of any Specially Serviced
Mortgage Loan to up to three years beyond the scheduled maturity date
thereof as of the Cut-off Date. The expenses incurred in connection
with the preparation of certain such instruments shall be reimbursed
to the Special Servicer pursuant to Section 3.05(e) of the
related Servicing Agreement. The Special Servicer
49
<PAGE>
may from time to time request any powers of attorney and other documents
necessary or appropriate to enable the Special Servicer to carry out its
servicing and administrative duties hereunder. If it shall make such request,
the Special Servicer shall prepare for signature by the Trustee, and the
Trustee shall sign any such powers of attorney or other documents necessary
or appropriate to carry out such duties hereunder. In addition to the
duties and obligations set forth in this Article V, the Special Servicer
shall assume the rights and obligations of the Primary Servicer with respect
to a Mortgage Loan set forth in Sections 4.01(c), 4.05, 4.08 and 4.09 of each
related Servicing Agreement with respect to any Specially Serviced Mortgage
Loan (but not any liabilities incurred by the Primary Servicer prior to the
related Servicing Transfer Date) and any REO Properties and Section 4.07 of
each related Servicing Agreement with respect to any REO Properties and, to
the extent it receives a certificate from the Primary Servicer that any amount
is due in connection with maintaining any Insurance Policy pursuant to any
such Section 4.07 with respect to any such Specially Serviced Mortgage Loan,
with respect to paying any such amount. Any insurance required to be
maintained by the Special Servicer with respect to REO Properties pursuant
to this Section and any such Section 4.07 shall be maintained with Qualified
Insurers.
(c) No later than thirty (30) days after a Servicing Transfer Date
for a Mortgage Loan, the Special Servicer shall deliver to the Trustee, the
Master Servicer, each Rating Agency and the Directing Certificateholder a
report (the "Asset Strategy Report") with respect to such Mortgage Loan and
---------------------
the related Mortgaged Property. Such Asset Strategy Report shall set forth
the following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) consideration of alternatives to the exercise of remedies
(such as forbearance relief, modification of the terms and
conditions of such Mortgage Loan, disposition of the
Specially Serviced Mortgage Loan or the related Mortgaged
Property and application of the proceeds of such disposition
to the outstanding principal balance of such Mortgage Loan and
interest thereon, or abandonment of the related Mortgaged
Property);
(iii) a discussion of the probable time frames and estimated amount
of any related Servicing Advances applicable to each of the
alternatives referred to above;
(iv) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with
the Accepted Special Servicing Practices, that are
applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other
49
<PAGE>
collateral for the related Mortgage Loan and a recommendation
as to whether outside legal counsel should be retained;
(v) estimated budgets for any operating or capital funds expected
to be required for the related Mortgaged Property;
(vi) the most current rent roll available for and any strategy for
the leasing or releasing of the related Mortgaged Property;
(vii) the Special Servicer's analysis and recommendations (which
will include a discussion of alternative courses of action and
a comparison of the probable benefits and detriments of each
alternative course of action) on how such Specially Serviced
Mortgage Loan might be returned to performing status and returned
to the Primary Servicer for regular servicing under Article IV
of the related Servicing Agreement or otherwise realized upon; and
(viii) such other information as the Special Servicer deems relevant
in light of the Accepted Special Servicing Practices.
If within ten (10) Business Days of receiving an Asset Strategy
Report, the Directing Certificateholder does not disapprove such Asset
Strategy Report in writing, the Special Servicer shall implement the
recommended action as outlined in such Asset Strategy Report; provided,
however, that the Special Servicer may not take any action that is contrary
to applicable Law or the terms of the applicable Mortgage Loan Documents.
If the Directing Certificateholder disapproves such Asset Strategy Report,
the Special Servicer will revise such Asset Strategy Report and deliver to
the Trustee, each Monitoring Certificateholder, the Master Servicer and each
Rating Agency a new Asset Strategy Report as soon as practicable. The
Special Servicer shall revise such Asset Strategy Report as described above
in this Section 5.03(c) until the Directing Certificateholder shall fail to
disapprove such revised Asset Strategy Report in writing within ten (10)
Business Days of receiving such revised Asset Strategy Report. The Special
Servicer may, from time to time, modify any Asset Strategy Report it has
previously delivered and implement such report, provided such report shall
have been prepared, reviewed and not rejected pursuant to the terms of this
Section. Notwithstanding the foregoing, the Special Servicer (i) may
following the occurrence of an extraordinary event with respect to the
related Mortgaged Property, take any action set forth in such Asset Strategy
Report before the expiration of a ten (10) Business Day period if the Special
Servicer has reasonably determined that failure to take such action would
materially and adversely affect the interest of the Certificateholders and
it has made a reasonable effort to contact the Directing Certificateholder
and (ii) in any case, shall determine whether such disapproval is not in the
best interest of all the Certificateholders pursuant to Accepted Special
Servicing Practices. Upon making such determination, the Special Servicer
shall either implement the Asset Strategy Report or notify
50
<PAGE>
the Trustee of such rejection and deliver to the Trustee a proposed notice to
Certificateholders which shall include the Asset Strategy Report, and the
Trustee shall send such notice to all Certificateholders (or, to the extent
known to the Trustee, Certificate Owners). If the majority of such
Certificateholders (including Certificate Owners), as determined by
Certificate Balance, fail within five (5) days of the Trustee's sending such
notice to reject such Asset Strategy Report, the Special Servicer shall
implement the same. If the Asset Strategy Report is rejected by the
Certificateholders, the Special Servicer shall revise such Asset Strategy
Report as described above in this Section 5.03(c). The Trustee shall be
entitled to reimbursement for the reasonable expenses of providing such
notices.
(d) The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with Accepted Special Servicing Practices and the related Asset
Strategy Report. The Special Servicer shall not take any action inconsistent
with the related Asset Strategy Report.
(e) Upon request of any Certificateholder (or any Certificate
Owner, if applicable, which shall have provided the Trustee with evidence
satisfactory to the Special Servicer and the Trustee of its interest in a
Certificate pursuant to Section 10.15) or Rating Agency, the Trustee shall
mail, without charge, to the address specified in such request a copy of the
most current Asset Strategy Report for any Specially Serviced Mortgage Loan
or REO Property.
(f) The Special Servicer shall not acquire any personal property
on behalf of the Trust Fund pursuant to this Agreement or any Servicing
Agreement unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel to the effect that the holding of such personal property by the Trust
Fund will not cause the imposition of a tax on the Trust Fund under the REMIC
Provisions or cause the Trust Fund to fail to qualify as a REMIC at any time
that any Certificate is outstanding.
(g) Prior to delivering an Asset Strategy Report to any Holder of
a Class A1, Class A1X, Class A2, Class A2X, Class B, Class BCX, Class C,
Class D or Class E Certificate, the Trustee shall have obtained an
acknowledgment in the form of Exhibit J from the recipient thereof that U.S.
securities law may restrict the use of the information in the Asset Strategy
Report.
51
<PAGE>
SECTION 5.04 Management of REO Property.
(a) The Special Servicer, on behalf of the Trust Fund, shall sell
any REO Property within two years after the Trust Fund acquires ownership of
such REO Property for purposes of Section 860G(a)(8) of the Code, unless the
Servicer obtains for the Trustee an Opinion of Counsel, addressed to the
Trustee and the Master Servicer, to the effect that the holding by the Trust
Fund of such REO Property subsequent to the second anniversary of such
acquisition will not result in the imposition of taxes on "prohibited
transactions" of the Trust Fund as defined in Section 860F of the Code or
cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding. The Special Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for
the purpose of its prompt disposition and sale in a manner which does not
cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code or result in the receipt by the
Trust Fund of any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code or any "net income from foreclosure
property" which is subject to taxation under the REMIC Provisions.
(b) The Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any new
lease with respect to any REO Property, if the new lease by its terms
will give rise to any income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under any new
lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon,
and then only if more than ten percent of the construction of such
building or other improvement was completed before default on the
related Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person to Directly
Operate, any REO Property on any date more than 90 days after its
Acquisition Date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel to the effect that such action will not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code at any time that it is held by the Trust Fund, in
which case the Special Servicer may take such actions as are specified in
such Opinion of Counsel.
53
<PAGE>
(c) Any REO Property acquired by the Special Servicer hereunder
shall be acquired in the name of the Trustee for the benefit of the
Certificateholders.
SECTION 5.05 Sale of REO Property and Specially Serviced
Mortgage Loans.
Subject to terms of the related Asset Strategy Report, to the
extent the conditions, procedures or requirements set forth therein are more
restrictive or exacting than those set forth below, each Special Servicer
agrees as follows:
(a) The Special Servicer may purchase any Defaulted Mortgage Loan
or any REO Property (in each case at the Purchase Price therefor). The
Special Servicer may also offer to sell to any Person any Defaulted Mortgage
Loan or any REO Property, if and when the Special Servicer determines,
consistent with the servicing standard set forth in Section 5.01(a), that
such a sale would be in the best economic interests of the Trust Fund. The
Special Servicer shall give the Trustee and the Master Servicer not less than
five Business Days' prior written notice of the Purchase Price and its
intention to (i) purchase any Defaulted Mortgage Loan or REO Property at the
Purchase Price therefor or (ii) sell any Defaulted Mortgage Loan or REO
Property, in which case the Special Servicer shall accept the highest offer
received from any Person for any Defaulted Mortgage Loan or any REO Property
in an amount at least equal to the Purchase Price therefor. To the extent
permitted by applicable law, and subject to the servicing standard set forth
in Section 5.01(a) hereof, the Master Servicer, an Affiliate of the Master
Servicer, the Special Servicer or an Affiliate of the Special Servicer, or
an employee of either of them may act as broker in connection with the sale
of any REO Property and may retain from the proceeds of such sale a brokerage
commission that does not exceed the commission that would have been earned
by an independent broker pursuant to a brokerage agreement entered into at
arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the Special
Servicer to be a fair price for such Defaulted Mortgage Loan or REO Property,
if the highest bidder is a Person other than an Interested Person, or if such
price is determined to be such a price by the Trustee, if the highest bidder
is an Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any Defaulted Mortgage Loan or any REO
Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest bid if the Special
Servicer determines, in accordance with the servicing standard stated in
Section 5.01(a), that rejection of such bid would be in the best interests
of the Certificateholders. In addition, the Special Servicer may accept
a lower bid if it determines, in accordance with the servicing standard
stated in Section 5.01(a), that acceptance of such bid would be in
the best interests of the Certificateholders (for example, if the
53
<PAGE>
prospective buyer making the lower bid is more likely to perform its
obligations, or the terms offered by the prospective buyer making the lower
bid are more favorable).
(b) In determining whether any bid received from an Interested
Person represents a fair price for any Defaulted Mortgage Loan or any REO
Property, the Trustee and the Special Servicer may conclusively rely on the
opinion of an Independent appraiser or other Independent expert in real
estate matters retained by the Trustee at the expense of the Trust Fund. In
determining whether any bid constitutes a fair price for any Defaulted
Mortgage Loan or any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser or
other expert in real estate matters shall be instructed to take into account,
as applicable, among other factors, the period and amount of any delinquency
on the affected Defaulted Mortgage Loan, the physical condition of the
related Mortgaged Property or such REO Property, the state of the local
economy and the Trust Fund's obligation to comply with REMIC Provisions.
(c) Subject to the servicing standard set forth in Section
5.01(a), the Special Servicer shall act on behalf of the Trust Fund in
negotiating and taking any other action necessary or appropriate in
connection with the sale of any Defaulted Mortgage Loan or REO Property,
including the collection of all amounts payable in connection therewith. Any
sale of a Defaulted Mortgage Loan or any REO Property shall be without
recourse to, or representation or warranty by, the Trustee, the Depositor,
any Servicer, or the Trust Fund (except that any contract of sale and
assignment and conveyance documents may contain customary warranties of
title, so long as the only recourse for breach thereof is to the Trust Fund)
and, if consummated in accordance with the terms of this Agreement, none of
the Servicers, the Depositor nor the Trustee shall have any liability to the
Trust Fund or any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(d) The proceeds of any sale after deduction of the expenses of
such sale incurred in connection therewith shall be promptly deposited into
the Trust Master Collection Account.
SECTION 5.06 REO Account; Collection of REO Proceeds.
(a) The Special Servicer shall establish or cause to be
established, and hereby agrees to maintain or cause to be maintained for the
duration of this Agreement for each REO Mortgage Loan, an REO Account into
which all related REO Proceeds shall be deposited as and when received. The
Special Servicer's REO Account shall be an Eligible Account.
(b) All funds deposited by the Special Servicer in any REO Account
maintained hereunder shall be held for the benefit of the Certificateholders
until disbursed or withdrawn in accordance herewith and the Servicing
Agreement. Funds in such REO Account shall not be commingled with
any other moneys. The Special Servicer shall, within five (5)
54
<PAGE>
Business Days of the establishment thereof, notify the Master Servicer, any
Primary Servicer and the Trustee in writing of the location and the account
number of the REO Account established by the Special Servicer for the
Mortgage Loans and shall give the Trustee and the Master Servicer written
notice of any change of such location or account number on or prior to the
date of such change.
(c) Funds in an REO Account may be invested by, at the risk of,
and for the benefit of, the Special Servicer in Permitted Investments which
shall not be sold or disposed of prior to maturity. All such Permitted
Investments shall be registered in the name of the Special Servicer (in its
capacity as such and for the benefit of the Certificateholders) or its
nominee. All income therefrom shall be the property of the Special Servicer.
In addition, if the amounts in any REO Account are invested for the benefit
of the Special Servicer, the Special Servicer shall deposit on each
Determination Date into such REO Account out of its own funds an amount
representing any net losses realized on the Permitted Investments with
respect to funds in such REO Account for such Collection Period.
(d) The Special Servicer shall deposit or cause to be deposited
any REO Proceeds into the applicable REO Account on each Business Day.
(e) Except as expressly permitted or required hereunder, the
Special Servicer shall not sell, transfer or assign to any Person any
interest (including any security interest) in amounts credited or to be
credited to any REO Account or take any action towards that end, and shall
maintain such amounts free of all liens, claims and encumbrances of any
nature.
SECTION 5.07 Remittances to Primary Servicer.
Any collections received in respect of a Mortgage Loan, other than
REO Proceeds, shall be remitted to the Primary Servicer within one Business
Day of receipt for deposit into the Trust Primary Collection Account
established and maintained by the Primary Servicer for the duration of this
Agreement pursuant to Section 4.02 of the related Servicing Agreement.
SECTION 5.08 Remittances to Master Servicer.
On each Primary Remittance Date, the Special Servicer shall
withdraw from each related REO Account and remit to the Master Servicer, by
wire transfer of immediately available funds to the Trust Master Collection
Account all amounts in such REO Account net of any Property Protection
Expenses or Property Improvements Expenses incurred or reasonably expected
by the Special Servicer to be incurred during the succeeding three months.
55
<PAGE>
SECTION 5.09 Specially Serviced Mortgage Loan Status Reports,
REO Status Reports and Other Reports.
(a) The Special Servicer shall prepare, or cause to be prepared,
and deliver to the Master Servicer, the Trustee and each Rating Agency, via
facsimile (with a hard copy sent on the same day by first-class mail and in
electronic format reasonably acceptable to the Master Servicer and consistent
with Accepted Special Servicing Practices) not later than the eighth (8th)
Business Day immediately preceding each Distribution Date, a copy of a
Specially Serviced Mortgage Loan and REO Status Report (as set forth in the
applicable Servicing Agreement) with respect to each Specially Serviced
Mortgage Loan and REO Mortgage Loan, respectively. In addition, upon the
occurrence of a Collateral Value Adjustment Event or Liquidation Event from
which a Collateral Value Adjustment, Realized Loss or Collateral Value
Adjustment Recovery Amount has resulted, the Special Servicer shall prepare,
or cause to be prepared, and deliver to the Master Servicer, the Trustee and
each Rating Agency, via facsimile (with a hard copy sent on the same day by
first-class mail or in electronic format reasonably acceptable to the Master
Servicer and consistent with Accepted Special Servicing Practices) not later
than the eighth (8th) Business Day immediately preceding each Distribution
Date, an Officers' Certificate setting forth (i) the event which gave rise
to such Collateral Value Adjustment or Realized Loss and (ii) the amount of
such Collateral Value Adjustment, Realized Loss or Collateral Value
Adjustment Recovery Amount.
(b) On the eighth (8th) Business Day immediately preceding each
Distribution Date, the Special Servicer shall validate and deliver to the
Master Servicer a copy of the bank statement for the prior calendar month
related to each REO Account and an REO Account Report in the form set forth
in the applicable Servicing Agreement and a report of any other funds or
accounts established and maintained by the Special Servicer under this
Agreement or any Servicing Agreement as of the Business Day preceding the
date of such report, showing for the period from the day after the second
preceding Primary Remittance Date through the immediately preceding Primary
Remittance Date (or since the related Servicing Transfer Date, in the case
of the first of such reports), the aggregate of deposits into and withdrawals
from such funds or accounts in accordance with this Agreement or any
Servicing Agreement. For purposes of this clause (b), "validate" shall have
the meaning set forth in Section 1.02 of the related Servicing Agreement.
(c) Within sixty (60) days following the end of each calendar
year, the Special Servicer shall prepare, or cause to be prepared, and
deliver to the Master Servicer, the Trustee and each Rating Agency such
customary information with respect to each REO Mortgage Loan as the Special
Servicer deems necessary or desirable for each Certificateholder to prepare
its federal, state and local income tax returns. Such obligation of the
Special Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by it pursuant to
any requirements of the Code.
56
<PAGE>
(d) If the Special Servicer receives notice from the Master
Servicer of any reporting inconsistencies pursuant to Section 5.06 of the
related Servicing Agreement, the Special Servicer shall initiate discussions
on the following Business Day with the Master Servicer to reconcile their
records.
(e) Upon prior written request of the Master Servicer, the Trustee
either Rating Agency, the Depositor, the Special Servicer shall prepare such
other reasonable reports as may be requested in writing thereby. The Special
Servicer shall be entitled to charge a reasonable fee reflecting the internal
and external costs to the Special Servicer of preparing such other reports
and such fee shall be reimbursable to the Special Servicer as a Servicing
Advance pursuant to this Agreement or the related Servicing Agreement.
SECTION 5.10 Special Servicer Advances.
(a) To the extent that as of the Determination Date for any month,
the full amount of the Monthly Payment due in such month with respect to any
Specially Serviced Mortgage Loan has not been received by the Primary
Servicer or the Special Servicer, the Special Servicer shall remit to the
Master Servicer on the related Primary Remittance Date for deposit into the
related Master Collection Account, a P&I Advance in an amount equal to the
excess of such Monthly Payment net of any Escrow Payment component over the
amount received; provided, however, that the Special Servicer shall not be
required to make a Nonrecoverable Advance. If the Special Servicer
determines with respect to any Mortgage Loan that a P&I Advance, if made,
would constitute a Nonrecoverable Advance or that it has made a
Nonrecoverable Advance, it shall deliver to the Master Servicer and the
Trustee a Nonrecoverable Advance Certificate. The Special Servicer shall be
entitled to reimbursement for any unreimbursed P&I Advance pursuant to the
related Servicing Agreement. The Special Servicer shall make Servicing
Advances from its own funds to effect the timely payment of any Property
Protection Expense or Property Improvement Expense to the extent necessary
to implement any Asset Strategy Report pursuant to the terms hereof; provided
that the Special Servicer shall only make Servicing Advances with respect to
any Specially Serviced Mortgage Loan from its own funds to the extent there
are not sufficient funds in the related REO Account or the related subaccount
of the Escrow Account available to cover any such expenses and as permitted
under the Mortgage Loan Documents and the Special Servicer shall not be
required to make a Nonrecoverable Advance; and provided, further, that the
Special Servicer may only make Servicing Advances to effect the timely
payment of any Property Improvement Expense to the extent consistent with the
Asset Strategy Report implemented by the Special Servicer. The Special
Servicer shall be entitled to reimbursement for any unreimbursed Servicing
Advance made pursuant to the immediately preceding sentence pursuant to the
related Servicing Agreement. Notwithstanding, any other provision hereof or
of the Servicing Agreements, the Special Servicer shall not be entitled to
the payment of interest at the Advance Rate on any Advance or portion
thereof with respect to any Mortgage Loan subsequently determined to be a
Nonrecoverable Advance or remaining unreimbursed following the
occurrence of the related
57
<PAGE>
Liquidation Event; provided, however, that the Special Servicer shall be
entitled to any such interest if it shall certify to the Master Servicer and
the Trustee that such Advance or portion thereof became a Nonrecoverable
Advance or could not be recovered from Liquidation Proceeds following such
Liquidation Event as a result of the occurrence of an event which adversely
affected the Mortgaged Property following the date such Advance was made or
if such Advance was a Servicing Advance for Property Protection Expenses.
(b) Within thirty (30) days of the Servicing Transfer Date for any
Mortgage Loan to the extent the Special Servicer does not determine such a
remittance would be a Nonrecoverable Advance, the Special Servicer shall
remit to the related Primary Servicer from its own funds for deposit into the
related Trust Primary Collection Account an amount equal to the aggregate
unreimbursed Advances made by the Primary Servicer with respect to such
Mortgage Loan. Any such remittance shall be deemed a P&I Advance or
Servicing Advance, as applicable, by the Special Servicer.
(c) If the Special Servicer determines, in its good faith
judgment, that any amount expended or to be expended by it from its own funds
pursuant to clauses (a) and (b) above is or would be a Nonrecoverable
Advance, such determination shall be evidenced by a Nonrecoverable Advance
Certificate delivered to the Trustee and the Master Servicer.
(d) Except as otherwise set forth in clause (a) above, the Special
Servicer shall be entitled to interest on any Advance it made with respect
to a Mortgage Loan. Such interest shall accrue at the Advance Rate from the
date on which such Advance was made to but not including any Business Day on
which the Special Servicer is reimbursed pursuant to this Agreement.
SECTION 5.11 Environmental Considerations.
(a) The Special Servicer shall not obtain title for the Trust Fund
to a Mortgaged Property as a result or in lieu of foreclosure or otherwise,
nor shall otherwise acquire possession of, or take other action with respect
to, any Mortgaged Property, if, as a result of any such action, the Trust
Fund, the Trustee, the Master Servicer or the Special Servicer would be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be
an "owner" or "operator" of such Mortgaged Property within the meaning of the
Comprehensive Environmental Responsibility Cleanup and Liability Act of 1980,
as amended from time to time, or any applicable comparable federal, state or
local law, or a "discharger" or "responsible party" thereunder, unless the
Special Servicer has also previously determined, in accordance with Accepted
Special Servicing Practices, based on a "Phase I", and, if applicable, a
"Phase II" environmental site assessment report prepared by a person who
regularly conducts environmental audits for purchasers of commercial
property with at least 5 years of experience and a regionally recognized
firm, as determined by such Special Servicer in a manner consistent
with Accepted Special Servicing Practices, that:
58
<PAGE>
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, that taking such actions
as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a
greater recovery on a present value basis, after taking
into account any risks associated therewith, than not taking
such actions; and
(ii) there are no circumstances present on such Mortgaged Property
relating to the use, management, storage or disposal of
any Hazardous Materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be
required under any Environmental Law, or that, if any
such Hazardous Materials are present for which such
action could be required, taking such actions with
respect to the affected Mortgaged Property is
reasonably likely to produce a greater recovery on
a present value basis, after taking into account any
risks associated therewith, than not taking such actions; and
if the Special Servicer has so determined based on satisfaction of the
criteria in clauses (i) and (ii) above that it would be in the best economic
interest of the Certificateholders to take any such actions, the Special
Servicer has notified the Trustee and the Master Servicer in writing of such
proposed action. The Special Servicer shall provide a copy of the report
described in the preceding sentence to the Trustee, the Master Servicer and
the Directing Certificateholder. If within ten (10) Business Days of
receiving such recommendation, the Directing Certificateholder does not
disapprove such recommendation in writing the Special Servicer shall
implement the recommended action. If the Directing Certificateholder
disapproves such recommendation, the Special Servicer will revise such
recommendation and deliver to the Trustee, each Monitoring Certificateholder
and the Master Servicer a new recommendation as soon as practicable. The
Special Servicer shall revise such recommendation as described above in this
Section 5.11(a) until the Directing Certificateholder shall fail to
disapprove such revised recommendation in writing within ten (10) Business
Days of receiving such revised recommendation. Notwithstanding the
foregoing, the Special Servicer (i) may, following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action it has recommended before the expiration of a ten (10) Business Day
period if the Special Servicer has reasonably determined that failure to take
such action would materially and adversely affect the interest
of the Certificateholders and it has made a reasonable effort to contact the
Directing Certificateholder and (ii) in any case, shall determine whether
such disapproval is not in the best interest of all the Certificateholders
pursuant to Accepted Special Servicing Practices. Upon making such
determination, the Special Servicer shall either implement its recommendations
or notify the Trustee of such rejection and deliver to the Trustee a proposed
notice to Certificateholders, which shall include the Special Servicer's
recommendation, and the Trustee shall send such notice to all
Certificateholders (or, to the extent known to the Trustee, Certificate
Owners). If the majority of such Certificateholders (including
Certificate Owners), as determined by Certificate Balance,
fail within five (5) days of the Trustee's sending such notice
59
<PAGE>
to reject such recommendation, the Special Servicer shall implement the
same. If such recommendation is rejected by the Certificateholders, the
Special Servicer shall not take any action so recommended. The cost of
preparation of any environmental assessment and the cost of any compliance,
containment, clean-up or remediation shall be deemed to be a Property
Protection Expense and a Servicing Advance and such Special Servicer shall
be reimbursed from related REO Proceeds or to the extent provided in
Section 4.03(a) of the related Servicing Agreement from Liquidation
Proceeds, Insurance Proceeds or Condemnation Proceeds on deposit in the
related Trust Primary Collection Account.
(b) If the Special Servicer determines, pursuant to subsection (a)
above, that taking such actions as are necessary to bring any such Mortgaged
Property into compliance with applicable Environmental Laws, or taking such
actions with respect to the containment, clean-up, removal or remediation of
Hazardous Materials affecting any such Mortgaged Property, is not reasonably
likely to produce a greater recovery on a present value basis, after taking
into account any risks associated therewith, than not taking such actions,
the Special Servicer shall notify the Directing Certificateholders, Trustee
and the Master Servicer of such determination and recommend such action as
it deems in good faith to be in the best economic interests of the
Certificateholders. If within ten (10) Business Days of receiving such
recommendation, the Directing Certificateholder does not disapprove such
recommendation in writing the Special Servicer shall implement the
recommended action. If the Directing Certificateholder disapproves such
recommendation, the Special Servicer will revise such recommendation and
deliver to the Trustee, the Directing Certificateholder and the Master
Servicer a new recommendation as soon as practicable. The Special Servicer
shall revise such recommendation as described above in this Section 5.11(b)
until the Directing Certificateholder shall fail to disapprove such revised
recommendation in writing within ten (10) Business Days of receiving such
revised recommendation. Notwithstanding the foregoing, the Special Servicer
(i) may, following the occurrence of an extraordinary event with respect to
the related Mortgaged Property, take any action it has recommended before the
expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interest of the Certificateholders and it has made a
reasonable effort to contact the Directing Certificateholder and (ii) in any
case, shall determine whether such disapproval is not in the best interest
of all the Certificateholders pursuant to Accepted Special Servicing
Practices. Upon making such determination, the Special Servicer shall
either implement its recommendations or notify the Trustee of
such rejection and deliver to the Trustee a proposed notice to
Certificateholders, which shall include the Special Servicer's
recommendation, and the Trustee shall send such notice to all
Certificateholders (or, to the extent known to the Trustee, Certificate
Owners). If the majority of such Certificateholders (including Certificate
Owners), as determined by Certificate Balance, fail within five (5) days of
the Trustee's sending such notice to reject such recommendation, the Special
Servicer shall implement the same. If such recommendation is rejected by the
Certificateholders, the Special Servicer shall not take any action so
recommended.
60
<PAGE>
(c) Notwithstanding the foregoing, the Special Servicer shall not
take any action pursuant to this Section 5.11 except in connection with the
implementation of an Asset Strategy Report pursuant to Section 5.03(c).
SECTION 5.12 Restoration of Specially Serviced Mortgage Loans.
(a) Upon determining with respect to a Specially Serviced Mortgage
Loan that (i) three consecutive Monthly Payments on a Specially Serviced
Mortgage Loan have been made in accordance with the terms of the related
Mortgage Note (taking into account any grace periods contained therein), (ii)
such Mortgage Loan is current as to payments of principal and interest and
(iii) no Servicing Transfer Event is continuing, the Special Servicer shall
immediately give written notice thereof to the Master Servicer, the Primary
Servicer and the Trustee in the form set forth in Section 6.11(a) of the
related Servicing Agreement.
(b) Unless the Primary Servicer and the Special Servicer with
respect to a Mortgage Loan are the same Person, not later than two (2)
Business Days after notice has been given pursuant to subsection (a) above,
the Special Servicer shall send a letter by first class mail in the form set
forth in the related Servicing Agreement, with a copy to the related Primary
Servicer, notifying the related Mortgagor that such Mortgage Loan has ceased
being a Specially Serviced Mortgage Loan and instructing such Mortgagor to
direct all future notices and communications to the related Primary Servicer.
(c) In the event that a Specially Serviced Mortgage Loan ceases
to be such pursuant to this Section 5.12, not later than five (5) Business
Days after notice has been given in (a) above the Special Servicer shall
provide the related Primary Servicer with copies of all information,
documents and records (including records stored electronically on computer
tapes, magnetic disks and the like) in its possession relating to such
Mortgage Loan. Upon receipt of such notice and all information, documents
and records by the related Primary Servicer pursuant to Section 5.02(c)
hereof, such Mortgage Loan shall cease to be a Specially Serviced Mortgage
Loan, the Special Servicer's obligation to service such Mortgage Loan shall
terminate, and all duties and obligations of the related Primary Servicer
with respect to such Mortgage Loan to the extent set forth herein and in the
related Servicing Agreement previously assumed by the Special Servicer shall
be reassumed by the related Primary Servicer.
SECTION 5.13 Special Servicer Compensation.
Each Special Servicer shall be entitled to reasonable compensation
for services rendered by it hereunder on each Master Remittance Date from
amounts in the Trust Fund in an amount equal to 1.00% of all amounts
collected on each Mortgage Loan for the period beginning immediately
following the date on which such Mortgage Loan became a Specially Serviced
Mortgage Loan until the Distribution Date immediately following the date on
which the Stated Principal Balance of such Mortgage Loan is reduced to zero.
61
<PAGE>
SECTION 5.14 (RESERVED)
SECTION 5.15 Extension Advisor.
(a) The Special Servicer shall submit to the Extension Advisor any
Asset Strategy Report recommending that a Mortgage Loan be modified in such
manner as to extend the maturity date of such loan for a period of more than
three (3) years beyond the scheduled maturity date of such loan as of the
Cut-Off Date (a "Modification"). The Extension Advisor shall, within ten
business days of such written request, file a written report with the Trustee
and the Special Servicer approving or disapproving such modification and
summarizing the reasons for its determination. The initial Extension Advisor
on behalf of the Holders of the Senior Certificates shall approve of such
Modification if it determines that the decision of the Special Servicer to
modify the Mortgage Loan is consistent with the Special Servicer standard set
forth in Section 5.01 of the Pooling and Servicing Agreement. Any successor
Extension Advisors shall approve such Modifications if it determines that the
decision of the Special Servicer to so modify the Mortgage Loan is in the
best interest of the holders of the Senior Certificates. If unusual business
circumstances or the need for additional information or analysis does not
allow the timely filing of such report, the Extension Advisor will, to the
best of its ability, file a statement within said ten day period with the
Trustee and Special Servicer setting forth the estimated additional time
required to complete its determinations and the reasons for the delay and
will complete its determinations in the most expeditious manner reasonably
possible.
(b) The initial Extension Advisor's review shall be conducted by
personnel in the Real Estate Division of its Commercial Banking Services Area
or similar group with experience in the administration of commercial mortgage
loans. It shall consist of the review of relevant information furnished to
it by the Special Servicer pursuant to clause (c) and (d) hereof and such
other information as it may have or determine to obtain with respect to the
subject Mortgage Loan, and the circumstances (legal, market, physical,
financial and otherwise) which may impact its collection. The Extension
Advisor may obtain information outside of its normal data resources to
fulfill its responsibilities.
(c) The Special Servicer shall, at the time of any request to the
extension Advisor for approval of a Modification, furnish to the Extension
Advisor copies of all Asset Strategy Reports on the Mortgage Loan being
modified, a written description of the Modification including, if available,
any documents comprising the Modification which are proposed to be executed,
a summary of the factors which it considered in granting the Modification as
well as, upon the written request of the Extension Advisor, copies of all
relevant material which it has considered in its analysis of the Mortgage
Loan and its negotiations with the Mortgagor with respect to the
Modification.
(d) The Special Servicer shall cooperate with the Extension
Advisor in its investigation of the Modification in such manner as the
Extension Advisor may reasonably
62
<PAGE>
request, including furnishing further information to the Extension Advisor
with respect to the Modification and making available to the Extension
Advisor personnel involved in the decision to grant the Modification for
the purpose of responding Extension Advisor's request for information.
(e) The Extension Advisor shall have no liability to the Trust
Fund or the Certificateholders 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 Extension Advisor against any liability which would otherwise be imposed
by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of reckless disregard of its
obligations or duties hereunder.
(f) It is recognized that the initial Extension Advisor also
serves as Trustee hereunder and that it intends that its duties in each of
said capacities be performed by separate divisions and/or departments.
Provided that the Trustee and initial Extension Advisor maintain procedures
in place reasonably calculated to insure that, except in situations in which
its fiduciary obligations might make it advisable that its Corporate Trust
Department seek the assistance of the Real Estate Division, (i) its duties
in each of said capacities are performed in such separate divisions and/or
departments and by difference personnel and (ii) except for the reports to
be furnished to the Trustee by the initial Extension Advisor hereunder,
specific information with respect to the Trust Fund or any Mortgage Loan
therein is not made available by either division or department to the other,
no liability shall be imposed upon State Street Bank and Trust Company by
reason of, or arising out of, such relationship and the knowledge of
personnel in one division or department shall not be attributable to the
other for any purpose.
(g) The Extension Advisor shall be entitled to indemnification
from the Trust Fund against all loss, cost, damage and expense, including
reasonable attorneys' fees, incurred by it without its willful misconduct or
gross negligence, as a result of its appointment as Extension Advisor
hereunder or in the administration of its duties hereunder. This provision
shall survive termination of this Agreement and the resignation or removal
of the Extension Advisor.
(h) The Extension Advisor's reasonable fees and expenses shall be
paid by the Trustee out of the Certificate Account.
(i) The Extension Advisor may resign at any time by giving written
notice to the Holders of the Certificates and the Trustee and may be removed
by the Holders of a majority of the aggregate Certificate Principal Balance
of the Senior Certificates. Upon such removal or resignation, the successor
Extension Advisor selected by such Certificateholders shall assume the duties
of Extension Advisor. Within ten Business Days of receiving notice of such
resignation, the Trustee shall mail each Holder of a Senior Certificate by
first class mail a request that such Holder nominate a new Extension Advisor
within 15 Business Days of
63
<PAGE>
receiving such notice. Such nomination shall include a written agreement
by the nominated to assume such duties if elected. On the Business Day
following such 15th Business Day the Trustee shall notify each such
Certificateholder by first class mail of the names of the entities
nominated as successor Extension Advisor. Such notice shall request that
each such Certificateholders vote for one of the nominated entities and
notify the Trustee in writing of their vote within 10 Business Days. If
within 10 Business Days of mailing such notice Holders of a majority of
the Percentage Interests in the Senior Certificates have not responded,
the Trustee shall notify each of such Certificateholders by first
class mail of such event and shall request votes from those
Certificateholders which have not voted within 5 Business Days. On the
sixth Business Day following such notice, the Trustee shall determine
which nominated entity received the votes aggregating the highest Percentage
Interest and such entity shall be appointed as the successor Extension
Advisor. The Holders of a majority of the aggregate Certificate Principal
Balance of the Senior Certificates shall appoint a successor, the fees and
expenses of such successor to be paid by the Trustee out of the Certificate
Account up to the amount which would have been paid to its predecessor as set
forth in the agreement referred to in clause (h) above. Upon the appointment
of a successor Extension Advisor, the Trustee shall notify the Special
Servicer of such appointment.
64
<PAGE>
ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 6.01 Certificate Account; Remittances to the Trustee.
(a) The Trustee shall establish and maintain one or more accounts
(collectively, the "Certificate Account"), held in trust for the benefit of
the Certificateholders. The Certificate Account shall be an Eligible
Account. The Trustee shall deposit in the Certificate Account, when received
or as otherwise required hereunder, all amounts received from the Master
Servicer with respect to all Mortgage Loans pursuant to the related Servicing
Agreement. If the Trustee shall deposit in the Certificate Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Certificate Account, any provision herein to the contrary
notwithstanding.
(b) On each Master Remittance Date, the Master Servicer shall
withdraw from the Trust Master Collection Account and remit to the Trustee,
by wire transfer of immediately available funds to the Certificate Account,
(1) all amounts on deposit in the Trust Master Collection Account as of the
close of business on the Master Remittance Date required to be remitted to
the Trustee pursuant to Section 5.04 of each Servicing Agreement and (2) any
P&I Advances deposited on or prior to such Master Remittance Date pursuant
to Section 5.05(b) of each Servicing Agreement.
SECTION 6.02 Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on
deposit in the Certificate Account, to the extent of the Available
Distribution Amount, in the following order of priority:
(i) any Collateral Value Adjustment Interest Recovery
Amount, sequentially to (A) concurrently, the Class A1,
Class A1X, Class A2 and Class A2X Certificates, pro rata,
(B) concurrently, the Class B and Class BCX component B,
pro rata, (C) concurrently, the Class C and Class BCX
component C, pro rata, (D) the Class D Certificates,
(E) the Class E Certificates, (F) the Class F Certificates,
(G) the Class G Certificates and (H) the Class NR
Certificates, to the extent of any related Collateral
Value Adjustment Interest Amount;
(ii) any Net Prepayment Premium in the following order of
priority: first, 75% and 25% thereof to the Class A1X and Class A1
Certificates, respectively, through the Distribution Date on which
the Class Balance of the Class A1 Certificates has been reduced to
zero; thereafter, 75% and 25% thereof to the Class A2X and Class A2
66
<PAGE>
Certificates, respectively, through the Distribution Date on
which the Class Balance of the Class A2 Certificates has
been reduced to zero; thereafter, 75% and 25% thereof to the
Class BCX and Class B Certificates, respectively, through the
Distribution Date on which the Class Balance of the Class B
Certificates has been reduced to zero; and thereafter,
75% and 25% thereof to the Class BCX and Class C Certificates,
respectively, through the Distribution Date on which the Class
Balance of the Class C Certificates has been reduced to zero.
Thereafter, on each Distribution Date any Net Prepayment Premium
shall be applied to the Class D Certificates through the
Distribution Date on which the Class Balance of the Class D
Certificates has been reduced to zero. Thereafter, on each
Distribution Date any Net Prepayment Premium shall be applied
to the Class E Certificates through the Distribution Date on which
the Class Balance of the Class E Certificates has been reduced to
zero. Thereafter, on each Distribution Date any Net Prepayment
Premium shall be applied to the Class F Certificates through the
Distribution Date on which the Class Balance of the Class F
Certificates has been reduced to zero. Thereafter, on each Distribution
Date any Net Prepayment Premium shall be applied to the Class G
Certificates through the Distribution Date on which the Class
Balance thereof has been reduced to zero. Thereafter, on each
Distribution Date any Net Prepayment Premium shall be applied to the
Class NR Certificates through the Distribution Date on which the
Class Balance of the Class NR Certificates has been reduced to zero;
(iii) subject to clause (v) below, to distributions of interest
on the Classes of Certificates then outstanding with the highest
priority for interest payment as set forth below in an amount equal
to the respective Interest Distribution Amounts in respect thereof
for such Distribution Date and any unpaid portion of the respective
Interest Distribution Amounts in respect thereof for any prior
Distribution Date together with interest thereon as the applicable
Pass-Through Rate; and
(iv) to distributions of principal to the Classes of Certificates
then outstanding in the order set forth below;
(v) sequentially, to distributions of interest to the remaining
Certificateholders in the priority set forth below in an amount equal to
the Interest Distribution Amounts in respect thereof for such
Distribution Date and any unpaid portion of respective Interest
Distribution Amounts in respect thereof for any prior Distribution Date,
provided that on any Distribution Date on which the Class Balance of a
Class of Certificates is reduced to zero pursuant to clause (iv) above,
interest distributions pursuant to clause (iii) above will be made to
the Class of Certificates outstanding with the next highest priority
for interest payments prior to making distributions of principal on such
Class pursuant to clause (iv) above;
66
<PAGE>
(vi) sequentially to the Classes of Certificates in the order set
forth below for distribution of principal any amounts recovered
representing Realized Losses previously allocated to such Class in
reduction of its Class Balance;
(vii) to distributions to the Class R-I Certificateholders, in an
amount equal to the balance, if any.
The priority for interest payments for purposes of clauses (iii)
and (v) above, is: first to distributions of interest on the Class A1, Class
A1X, Class A2 and Class A2X Certificates, pro rata, based on their respective
Interest Accrual Amounts; second to distributions of interest on the Class
B Certificates and the Class BCX component B, pro rata, based on their
respective Interest Accrual Amounts; third to distributions of interest on
the Class C Certificates and the Class BCX component C, pro rata, based on
their respective Interest Accrual Amounts; and then sequentially to the Class
D, Class E, Class F, Class G and Class NR Certificates up to their respective
Interest Accrual Amounts. The Principal Distribution Amount for such
Distribution Date set forth in Clause (iv) above will be applied to
distributions of principal of the Class A1, Class A2, Class B, Class C, Class
D, Class E, Class F, Class G and Class NR Certificates, in that order, until
their respective Class Balances have been reduced to zero.
(b) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
All such distributions with respect to each Class (other than the final
distribution with respect thereto) will be made on each Distribution Date to
the Certificateholders of the respective Class of record at the close of
business on the related Record Date and shall be made by wire transfer of
immediately available funds to the account of any such Certificateholder at
a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (or, in the
case of the first Distribution Date, no later than the Delivery Date) and is
the registered owner of Certificates the aggregate initial Certificate
Balance of which is at least $100,000, or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register. The
final distribution on each Certificate will be made in like manner, but only
upon presentment and surrender of such Certificate at the office of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution.
(c) Except as otherwise provided in Section 11.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Trustee shall,
promptly mail to each Holder on such date of such Class of Certificates and
each Rating Agency a notice to the effect that:
(i) the Trustee expects that the final distribution with
respect to such Class of Certificates will be made on such
Distribution Date but only upon presentation and
67
<PAGE>
surrender of such Certificates at the office of the
Certificate Registrar therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and
held in trust and credited to the account of the appropriate non-tendering
Holder or Holders. If any Certificates as to which notice has been given
pursuant to this Section 6.02(d) shall not have been surrendered for
cancellation within six months after the-time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order
to receive the final distribution with respect thereto. If within one year
after the second notice all such Certificates shall not have been surrendered
for cancellation, the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of
such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 6.02(d).
SECTION 6.03 Statements to Certificateholders.
(a) On each Distribution Date, the Trustee shall forward by mail
to each Holder and each Rating Agency and to each Certificate Owner which
shall have requested such report from the Trustee and shall have certified
to the Trustee that it is a Certificate Owner a statement as to the
distributions made on such Distribution Date setting forth the information
set forth in Exhibit K based, in so far as practicable and relevant, on the
reports furnished to the Trustee by the Master Servicer for such Distribution
Date in accordance with the provisions of the Servicing Agreements.
In addition, on each Distribution Date, the Trustee shall forward
by mail to each Rating Agency and each Underwriter each statement received
prior to such Distribution Date prepared by the Master Servicer pursuant to
the Servicing Agreements. In addition, if the Underwriter requests such
statement in electronic format, the Trustee shall provide such information
at the expense of the Underwriter requesting it.
On each Distribution Date, the Trustee shall forward to the
Depositor, to each Rating Agency, and to the Master Servicer a copy
of the reports forwarded to the Certificateholders on such
Distribution Date and, if not otherwise set forth in such reports a
68
<PAGE>
statement setting forth the amounts, if any, actually distributed with respect
to the Certificates on such Distribution Date. The Trustee shall also provide
such reports to the Master Servicer in an electronic format reasonably
acceptable to the Master Servicer and the Trustee.
Subject to Section 5.03(g), upon request of any Certificateholder
(or any Certificate Owner, if applicable, which shall have provided the
Trustee with evidence satisfactory to the Special Servicer and the Trustee
of its interest in a certificate pursuant to Section 10.04) or Rating Agency,
the Trustee shall mail, without charge, to the address specified in such
request, a copy of the most current Asset Strategy Report for any Specially
Serviced Mortgage Loan or REO Property. In addition, upon receipt of a
written request of any Certificateholder (or any Certificate Owner, if
applicable, which shall have provided the Trustee with evidence satisfactory
to the Master Servicer and the Trustee of its interest in a certificate
pursuant to Section 10.04) for a copy of any other report, the Trustee shall
forward such written request to the Master Servicer. To the extent such
report is available to the Master Servicer, the Master Servicer shall deliver
a copy thereof to the Trustee for delivery to the requesting
Certificateholder (or Certificate Owner) at the address specified in such
request. The request, reproduction and delivery of such report, shall be at
the expense of the requesting Certificateholder (or Certificate Owner).
(b) The Trustee covenants to furnish or cause to be furnished,
promptly upon the written request of any Holder of a Class F, Class G, Class
NR, Class R-I, Class R-II or Class R-III Certificate (or a Certificate Owner
which shall have certified to the Trustee that it is a Certificate Owner of
any such Class) reasonably current Rule 144A Information (as defined below)
to such Certificateholder or to a prospective transferee of such a
Certificate (or interests in such Certificate) designated by such
Certificateholder, as the case may be, in connection with the resale of such
Certificate or such interests by such Certificateholder pursuant to Rule
144A. "Rule 144A Information" shall mean the information specified in Rule
144A(d)(4)(i) and (ii) under the Securities Act of 1933, as amended. The
Trustee shall advise the Master Servicer of any request by a
Certificateholder and shall consult with the Master Servicer as to the
information to be supplied. Based upon such consultation and to the extent
the Trustee is not in possession of reasonably current Rule 144A Information
on the date of any such request, the Master Servicer shall, upon request from
the Trustee, promptly provide the Trustee with reasonably current Rule 144A
Information to the extent reasonably available. The Trustee may place its
disclaimer on any such Rule 144A Information to the extent it is not the
source of such information.
(c) Each of the Trustee, the Master Servicer and the Special
Servicer shall deliver to the Directing Certificateholder copies of all
reports or notices prepared thereby or received thereby.
(d) The Trustee shall mail or otherwise provide to any
Person requesting a copy of the reports delivered to
Certificateholders pursuant to the first paragraph of clause (a)
69
<PAGE>
above, a copy of such reports. The Trustee shall be entitled to charge
such Person a nominal fee to cover the cost of such mailing.
(e) The Trustee is hereby authorized to furnish, to
Certificateholders and/or to the public any other information (such other
information, collectively, "Additional Information") with respect to the
Mortgage Loans, any Mortgaged Property or the Trust Fund as may be provided
to it by the Depositor, the Master Servicer or Special Servicer or gathered
by it in any investigation or other manner from time to time, provided that
(A) any such Additional Information shall only be furnished with the consent
or at the request of the Depositor, (B) the Trustee shall be entitled to
indicate the source of all information furnished by it and the Trustee may
affix thereto any disclaimer it deems appropriate in its sole discretion
(including any warnings as to the confidential nature and/or the uses of such
information as it may, in its sole discretion, determine appropriate), (C)
the Trustee shall be entitled (but not obligated) to require payment from
each recipient of a reasonable fee for, and its out-of-pocket expenses
incurred in connection with, the collection assembly, reproduction or
delivery of any such Additional Information and (D) the Trustee shall be
entitled to distribute or make available such information in accordance with
such reasonable rules and procedures as it may deem necessary or appropriate
(which may include the requirement that an agreement that provides such
information shall be used solely for purposes of evaluating the investment
characteristics or valuation of the Certificates be executed by the
recipient, if and to the extent the Trustee deems the same to be necessary
or appropriate. Nothing herein shall be construed to impose upon the Trustee
any obligation or duty to furnish or distribute any Additional Information
to any Person in any instance, and the Trustee shall neither have any
liability for furnishing nor for refraining from furnishing Additional
Information in any instance. The Trustee shall be entitled (but not
required) to require that any consent, direction or request given to it
pursuant to this clause (e) be made in writing.
SECTION 6.04 Distribution of Reports to the Trustee and the
Depositor; Advances by the Master Servicer.
(a) On or prior to each Primary Remittance Date, the Master
Servicer shall furnish a written statement (and an electronic data file) to
the Trustee setting forth (i) the amounts available for deposit into the
Certificate Account and (ii) the amounts required to be advanced by the
Servicers in connection with the related Distribution Date. The
determination by the Master Servicer of such amounts shall, in the absence
of obvious error, be presumptively deemed to be correct for all purposes
hereunder and the Trustee shall be protected in relying upon the same
without any independent check or verification. To the extent such
statement indicates one or more delinquencies in connection with which a
related Advance was not made by the related Primary Servicer or Special
Servicer, the Trustee shall commence an evaluation of whether an Advance by
the Trustee may be required and whether it would be a Nonrecoverable Advance;
provided, however, that notwithstanding such examination, the Trustee shall
have no responsibility for reviewing or confirming any decision made with
respect to an
70
<PAGE>
Advance by a Servicer. The Master Servicer shall promptly provide to the
Trustee such information as the Master Servicer may have to enable the
Trustee to make such determination.
In the event that the Master Servicer determines as of the Business
Day preceding the Master Remittance Date that it will be unable to deposit
in the Certificate Account an amount equal to the P&I Advance required to be
made for the immediately succeeding Distribution Date, it shall give notice
to the Trustee of its inability to advance (such notice may be given by
telecopy), not later than 3:00 P.M., Boston time, on such Business Day,
specifying the portion of such amount that it will be unable to deposit. Not
later than 3:00 P.M., Boston time, on such Master Remittance Date the Trustee
shall, unless by 12:00 Noon, Boston time, on such day the Trustee shall have
been notified in writing (by telecopy) that the Master Servicer shall have
directly or indirectly deposited in the Certificate Account such portion of
the amount of such Advance as to which the Master Servicer shall have given
notice pursuant to the preceding sentence (a) terminate all of the rights and
obligations of the Master Servicer under this Agreement in accordance with
Section 9.01 and (b) assume the rights and obligations of the Master Servicer
hereunder in accordance with Section 9.02 and under such Servicing Agreement,
including the obligation to deposit in the Certificate Account on such Master
Remittance Date an amount equal to such P&I Advance to the extent it
determines it is not a Nonrecoverable Advance (but not Servicing Advances)
for such Distribution Date; provided, however, that if the Trustee is
prohibited by law or regulation from obligating itself to make such Advances,
then the Trustee shall not be obligated to make such Advances.
The Trustee shall deposit all funds it receives pursuant to this
Section 6.04 into the Certificate Account.
SECTION 6.05 Allocations of Realized Losses and Collateral Value
Adjustments.
Prior to each Distribution Date, the Master Servicer shall
determine and communicate to the Trustee the total amount of Realized Losses
and Collateral Value Adjustment, if any, that resulted during the related
Collection Period. As soon as practicable following the occurrence of a
Collateral Value Adjustment Event with respect to any Mortgage Loan, the
Master Servicer shall make a Collateral Value Adjustment determination with
respect to such Mortgage Loan. The amount of each Realized Loss or
Collateral Value Adjustment shall be evidenced by an Officers' Certificate.
All Realized Losses and Collateral Value Adjustments shall be allocated by
the Trustee as follows in reduction of the related Class Balance: first,
to the Class NR Certificates until the Class Balance thereof has been
reduced to zero; second, to the Class G Certificates until the Class
Balance thereof has been reduced to zero; third, to the Class F Certificates
until the Class Balance thereof has been reduced to zero; fourth, to the
Class E Certificates until the Class Balance thereof has been reduced to
zero; fifth, to the Class D Certificates until the Class Balance thereof
has been reduced to zero; sixth, to the Class C Certificates until
the Class Balance thereof has been reduced to zero, seventh, to the
71
<PAGE>
Class B Certificates until the Class Balance thereof has been reduced to
zero, and the remainder of such Realized Losses and Collateral Value
Adjustments to the Class A1 and Class A2 Certificates, pro rata, until
their respective Class Balances have been reduced to zero. Amounts
allocated to reduce the related Class Balance should also reduce such
Class' Voting Rights in proportion to the other Classes of Certificates.
72
<PAGE>
ARTICLE VII
THE CERTIFICATES
SECTION 7.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits. The Class A1, Class A1X, Class A2, Class A2X,
Class B, Class C, Class BCX, Class D, Class E, Class F, Class G and Class NR
Certificates will be issuable only in minimum denominations (based on their
respective Original Class Balances or Notional Amounts) corresponding to
initial Certificate Balances or Notional Amounts as of the Delivery Date of
not less than $100,000, and integral multiples of $1 in excess thereof. Only
one Class R-I, one Class R-II and one Class R-III Certificate may be issued.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by
an authorized officer under its seal imprinted thereon. Certificates bearing
the manual or facsimile signatures of individuals who were at any time the
proper officers of the Trustee shall bind the Trustee, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificates. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially in
the form provided for herein executed by the Certificate Registrar by manual
signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
(c) The Class A1, Class A1X, Class A2, Class A2X, Class B, Class
BCX, Class C, Class D and Class E Certificates, Class F, Class G and Class
NR Certificates shall initially be issued as one or more Certificates
registered in the name of the Depository or its nominee and, except as
provided below, registration of such Certificates may not be transferred by
the Trustee except to another Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. The Certificate Owners shall hold their respective Ownership
Interests in and to each of the referenced herein Certificates (except for
such remainders) through the book-entry facilities of the Depository and,
except as provided below, shall not be entitled to Definitive Certificates
in respect of such Ownership Interests. All transfers by Certificate Owners
of their respective Ownership Interests in the Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall transfer the Ownership Interests only in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
73
<PAGE>
The Trustee, the Master Servicer and the Depositor may for all
purposes (including the making of payments due on the respective Classes of
Book-Entry Certificates (and, if necessary, the selection of the Directing
Certificateholder)) deal with the Depository as the authorized representative
of the Certificate Owners with respect to the respective Classes of Book-
Entry Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect
to the respective Classes of Book-Entry Certificates shall be limited to
those established by law and agreements between such Certificate Owners and
the Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository
as Holder of any Class of Book-Entry Certificates with respect to any
particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a
reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If (i)(A) the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Depositor is unable to locate a
qualified successor or (ii) the Depositor at its option advises the Trustee
in writing that it elects to terminate the book-entry system through the
Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners representing the same. In
addition, upon request, the Trustee will issue Definitive Certificates in
exchange for Ownership Interests in like Certificate Balances of the Book-
Entry Certificates for the Class F, Class G or Class NR Certificates in
connection with a transfer permitted pursuant to Section 7.02(b)(ii). Upon
surrender to the Trustee of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration
of transfer, the Trustee shall issue the Definitive Certificates. Neither
the Depositor, the Master Servicer nor the Trustee shall be liable for any
actions taken by the Depository or its nominee, including, without
limitation, any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates all references herein to obligations
imposed upon or to be performed by the Depositor in connection with the
issuance of the Definitive Certificates pursuant to this Section 7.01 shall
be deemed to be imposed upon and performed by the Trustee, and the Trustee
and the Master Servicer shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
SECTION 7.02 Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there shall
be maintained at the office of the Certificate Registrar a Certificate
Register in which, subject to such reasonable regulations as the Certificate
Registrar may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee is hereby initially
appointed (and hereby agrees to act) as
74
<PAGE>
Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Certificate
Registrar may appoint, by a written instrument delivered to the Trustee,
any other bank or trust company to act as Certificate Registrar under
such conditions as the predecessor Certificate Registrar may prescribe,
provided that the predecessor Certificate Registrar shall not be relieved
of any of its duties or responsibilities hereunder by reason of such
appointment. The Master Servicer shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times,
and to rely conclusively upon a certificate of the Certificate Registrar
as to the information set forth in the Certificate Register.
(b) No transfer of any Class F, Class G, Class NR, Class R-I,
Class R-II and Class R-III Certificate shall be made unless that transfer is
made pursuant to an effective registration statement under the Securities Act
of 1933, as amended (the "1933 Act"), and effective registration or
qualification under applicable state securities laws, or is made in a
transaction which does not require such registration or qualification. If
such a transfer is to be made without registration or qualification and is
to be made in connection with the issuance or transfer of a Definitive
Certificate, then the Certificate Registrar shall require, in order to assure
compliance with such laws, receipt of: (i) if such transfer is purportedly
being made in reliance upon Rule 144A under the 1933 Act, a certificate from
the prospective transferee substantially in the form attached as Exhibit D
hereto, and (ii) in all other cases, (A) except where the Depositor or an
Affiliate thereof is the transferor or transferee, an Opinion of Counsel
satisfactory to the Certificate Registrar to the effect that such transfer
may be made without such registration or qualification (which Opinion of
Counsel shall not be an expense of the Trust Fund or of the Depositor, the
Master Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), (B) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit C
hereto and (C) a certificate from such Certificateholder's prospective
transferee substantially in the form attached as Exhibit E hereto. None of
the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class F, Class G, Class NR, Class R-I, Class R-II and
Class R-III Certificates under the 1933 Act or any other securities law or
to take any action not otherwise required under this Agreement to permit the
transfer of any Class F, Class G, Class NR, Class R-I, Class R-II and Class
R-III Certificate without registration or qualification. Any Class F, Class
G, Class NR, Class R-I, Class R-II or Class R-III Certificateholder desiring
to effect such a transfer shall, and does hereby agree to, indemnify the
Trustee, the Certificate Registrar and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(c) None of the Certificates except for the Class A1, Class A1X,
Class A2, Class A2X, or any interest therein shall be transferred to (A) any
employee benefit plan or other retirement arrangement, including individual
retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans,
zccounts or arrangements are invested, that is subject to
the Employee Retirement Income Security Act of 1974, as
75
<PAGE>
amended ("ERISA"), or the Code (each, a "Plan") or (B) any Person who
is directly or indirectly purchasing any such Class or interest therein
on behalf of, as named fiduciary of, as trustee of, or with assets of
a Plan, unless the prospective transferee provides the Certificate
Registrar with a certification of facts and an Opinion of Counsel
which establish to the satisfaction of the Certificate Registrar that such
transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or cause the Master Servicer or the Trustee to be
deemed a fiduciary of such Plan or result in the imposition of an excise tax
under Section 4975 of the Code. In the absence of its having received the
certification and Opinion of Counsel contemplated by the preceding sentence,
the Certificate Registrar shall require the prospective transferee of any
Class F, Class G, Class NR, Class R-I, Class R-II or Class R-III Certificate
to certify, and each prospective transferee of any Class B, Class BCX,
Class C, Class D or Class E Certificate shall be deemed to have represented
by its acquisition of such Certificate, that it is neither (A) a Plan nor
(B) a Person who is directly or indirectly purchasing any such Class
Certificates on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan.
(d) No transfer of any Residual Certificate shall be made to a
Non-United States Person. Notwithstanding anything to the contrary contained
herein, prior to registration of any transfer, sale or other disposition of
a Residual Certificate, the Certificate Registrar shall have received (i) an
affidavit from the proposed transferee substantially in the form attached as
Exhibit F-1 hereto, to the effect that, among other things, (A) such
transferee is not a Disqualified Organization or an agent (including a
broker, nominee or middleman) of a Disqualified Organization, (B) such
transferee is not a Non-United States Person, (C) such transferee has no
present knowledge or expectation that it will become insolvent or subject to
a bankruptcy proceeding for so long as the Residual Certificate remains
outstanding, and (D) no purpose of such proposed transfer, sale or other
disposition of the Residual Certificate is or will be to impede the
assessment or collection of any tax, and (ii) a certificate from the
transferor substantially in the form attached as Exhibit F-2 hereto, to the
effect that, among other things, no purpose of such proposed transfer, sale
or other disposition of the Residual Certificate is or will be to impede the
assessment or collection of any tax. Notwithstanding the registration in the
Certificate Register of any transfer, sale or other disposition of a Residual
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization or to a Non-United
States Person, such registration shall be deemed to be of no legal force or
effect whatsoever and such Person shall not be deemed to be a
Certificateholder for any purpose hereunder, including, but not limited to,
the receipt of distributions in respect of such Residual Certificate. If any
purported transfer of a Residual Certificate shall be in violation of the
provisions of this Section 5.02(d), then the prior Holder of the Residual
Certificate purportedly transferred shall, upon discovery that the transfer
of such Residual Certificate was not in fact permitted by this
Section 5.02(d), be restored to all rights as Holder thereof retroactive
to the date of the purported transfer. The Trustee shall be under no
liability to any Person for any registration of transfer of a Residual
Certificate that is not permitted by this Section 5.02(d) or for making
payments due on such Residual Certificate to the purported Holder
thereof or taking any other action with respect to such purported Holder
76
<PAGE>
under the provisions of this Agreement. The prior Holder shall be entitled
to recover from any purported Holder of a Residual Certificate that was in
fact not a permitted transferee under this Section 5.02(d) at the time it
became a Holder all payments made on such Residual Certificate. The Holder
of Residual Certificates, by its acceptance thereof, shall be deemed for
all purposes to have consented to the provisions of this Section 5.02 and
to any amendment of this Agreement deemed necessary by counsel of the
Depositor to ensure that the transfer of a Residual Certificate to a
Disqualified Organization or any other Person will not cause the Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon
the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the office of the Certificate
Registrar, the Trustee shall execute and the Certificate Registrar shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class of a like
aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class of a
like aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the office of the Certificate Registrar. Whenever any
Certificates are so surrendered for exchange the Trustee shall execute and
the Certificate Registrar shall authenticate and deliver the Certificates
which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder
thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
(i) All Certificates surrendered for transfer and exchange shall
be physically cancelled by the Certificate Registrar and a certificate of
such cancellation shall be delivered to the Trustee by the Certificate
Registrar. The Certificate Registrar shall hold such cancelled Certificates
in accordance with its standard procedures.
SECTION 7.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate, and (ii) there is
delivered to the Trustee and the Certificate Registrar such security
77
<PAGE>
or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses
of the Trustee and the Certificate Registrar) connected therewith. Any
replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 7.04 Persons Deemed Owners.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
6.02 and for all other purposes whatsoever, and neither the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Certificate Registrar
nor any agent of any of them shall be affected by notice to the contrary.
78
<PAGE>
ARTICLE VIII
THE DEPOSITOR
SECTION 8.01 Liability of the Depositor.
The Depositor shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Depositor herein.
SECTION 8.02 Merger, Consolidation or Conversion of the
Depositor.
Subject to the following paragraph, the Depositor will keep in full
effect its existence, rights and franchises as a corporation under the laws
of the jurisdiction of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and enforceability of this Agreement, the Certificates or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
The Depositor may be merged or consolidated with or into any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which the
Depositor, shall be a party, or any Person succeeding to the business of the
Depositor, shall be the successor of the Depositor hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
SECTION 8.03 Limitation on Liability of the Depositor and
Others.
Neither the Depositor nor any of its directors, officers, employees
or agents shall be under any liability to the Trust Fund or the
Certificateholders 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
Depositor or any such Person against any breach of warranties or
representations made herein, or against any liability which would otherwise
be imposed by reason of misfeasance, bad faith or negligence in the
performance of duties. The Depositor and any director, officer, employee or
agent thereof may rely in good faith on any document of any kind which, prima
-----
facie, is properly executed and submitted by any Person respecting any
- -----
matters arising hereunder. The Depositor shall not be under any obligation
to appear in, prosecute or defend any legal action unless such action is
related to its respective duties under this Agreement and in its opinion does
not involve it in any expense or liability.
79
<PAGE>
ARTICLE IX
DEFAULT
SECTION 9.01 Events of Default.
"Event of Default", wherever used herein, means with respect to any
Servicer any one of the following events:
(i) with respect to the Master Servicer, failure to advance or
remit when due to the Trustee for deposit into the Certificate Account
any amount required to be advanced or remitted under the terms of this
Agreement; with respect to the Special Servicer, failure to advance
or remit to the Primary Servicer or the Master Servicer, as required
hereunder, any amount required to be advanced or remitted under the
terms of the Agreement within one Business Day of date required
pursuant to the terms of this Agreement;
(ii) any failure on the part of such Servicer duly to observe or
perform in any material respect any other of the covenants or agreements
on the part of such Servicer contained in this Agreement 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 such Servicer by the Depositor, the Trustee, or, in the case
of the Special Servicer, the Master Servicer or to such Servicer
(with a copy to the Depositor, the Trustee, and, in the case of
the Special Servicer, the Master Servicer) by the Holders of
Certificates entitled to at least 25% of the Voting Rights
of any Class affected thereby; or
(iii) any breach of the representations and warranties contained
in Section 2.03(b) which materially and adversely affects the
interests of any Class of Certificateholders and which continues
unremedied for a period of 30 days after the date on which notice
of such breach, requiring the same to be remedied, shall have been
given to such Servicer by the Depositor, the Trustee or, in the case
of the Special Servicer, the Master Service, or to such Servicer
(with a copy to the Depositor, the Trustee and, in the case of
the Special Servicer, the Master Servicer) by the Holders of
Certificates entitled to at least 25% of the Voting Rights of
any Class affected thereby; or
(iv) the occurrence of an Event of Default with respect to such
Servicer (for purposes of this clause (iv) only, as defined in any
related Servicing Agreement) under such Servicing Agreement; or
(v) either Rating Agency determines with respect to any Servicer
that such Servicer adversely affects the then current rating on any of
the Certificates;
80
<PAGE>
then, and in each and every such case, so long as an Event of Default shall
not have been remedied, the Trustee may, and at the written direction of the
Holders of Certificates entitled to, in the case of an Event of Default
described in clauses (i) or (ii) hereof, at least 25% of the Voting Rights
of any affected Class of Certificates or, in the case of any Event of Default
described in clause (iii) hereof, at least 25% of all of the Voting Rights,
the Trustee shall, by notice in writing to such Servicer, with a copy of such
notice to the Depositor, and, in the case of the Special Servicer, the Master
Servicer terminate all of the rights and obligations of such Servicer as such
Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof. From and after the receipt by such Servicer of such
written notice, all authority and power of the such Servicer under this
Agreement, shall pass to and be vested in the Master Servicer (or, if such
Servicer is the Master Servicer or the Special Servicer and the Master
Servicer are the same Person, the Trustee) pursuant to and under this
Section, and, without limitation, the Master Servicer or the Trustee, as
applicable, is hereby authorized and empowered to execute and deliver, on
behalf of and at the expense of the such 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 Mortgage Loans and related documents, or
otherwise. Each Servicer agrees promptly (and in any event no later than ten
Business Days subsequent to such notice) to provide the Master Servicer or
Trustee, as applicable, with all documents and records requested by it to
enable it to assume such Servicer's functions hereunder, and to cooperate
with the Master Servicer or the Trustee, as applicable, in effecting the
termination of such Servicer's responsibilities and rights hereunder.
SECTION 9.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 9.01, the Trustee shall be the successor in
all respects to the Master Servicer under this Agreement and the transactions
set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer by the terms and provisions hereof
provided, further, that any failure to perform such duties or
responsibilities caused by the Master Servicer's failure to provide
information or monies required by Section 9.01 shall not be considered a
default by the Trustee hereunder. The Trustee shall not be liable for any
of the representations and warranties of the Master Servicer or for any
losses incurred by the Master Servicer hereunder. As compensation therefor,
the Trustee shall be entitled to the servicing fees and all funds relating
to the Mortgage Loans which the Master Servicer would have been entitled to
charge to the Trust Fund if the Master Servicer had continued to act
hereunder. Notwithstanding the above, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable to so act or if the Holders
of Certificates entitled to at least more than 662/3% of the Voting Rights
so request in writing to the Trustee, promptly appoint a successor
pursuant to Section 8.01 of each Servicing Agreement. Pending appointment
of a successor to the Master Servicer hereunder, the Trustee shall act in
such capacity as hereinabove provided.
81
<PAGE>
SECTION 9.03 Notification to Certificateholders.
(a) Upon any such termination pursuant to Section 9.01 above, any
appointment of a successor to the Master Servicer pursuant to Section 9.02,
or any appointment of a successor Special Servicer pursuant to the related
Servicing Agreement, the Trustee shall give prompt written notice thereof to
Certificateholders and each Rating Agency at their respective addresses
appearing in the Certificate Register.
(b) Not later than the later of 60 days after the occurrence of
an Event of Default, the Trustee shall transmit by mail to the Depositor and
all Certificateholders notice of such occurrence, unless such default shall
have been cured or waived.
SECTION 9.04 Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
evidenced by all Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event
of Default under clause (i) of Section 9.01 may be waived only by all of the
Certificateholders. Upon any such waiver of an Event of Default, such Event
of Default shall cease to exist and shall be deemed to have been remedied for
every purpose hereunder, except that no Event of Default under Section
9.01(i) shall be deemed so waived or cured unless and until the Trustee has
been reimbursed in full for all Advances which it may have made hereunder.
No such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of
waiving any Event of Default pursuant to this Section 9.04, Certificates
registered in the name of the Depositor or any Affiliate of the Depositor
shall be entitled to Voting Rights with respect to the matters described
above.
SECTION 9.05 Additional Remedies of Trustee Upon Event of
Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to
the rights specified in Section 9.01, shall have the right, in its own name
and as trustee of an express trust, to take all actions now or hereafter
existing at law, in equity or by statute to enforce its rights and remedies
and to protect the interests, and enforce the rights and remedies, of the
Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filings of proofs of
claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall
be exclusive of any other remedy, and each and every remedy shall be
cumulative and in addition to any other remedy, and no delay or omission to
exercise any right or remedy shall impair any such right or remedy or shall
be deemed to be a waiver of any Event of Default.
82
<PAGE>
ARTICLE X
CONCERNING THE TRUSTEE
SECTION 10.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing or waiver of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default occurs and
is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Agreement and the Servicing Agreements, and use the same
degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs. Any
permissive right of the Trustee contained in this Agreement shall not be
construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement or any Servicing Agreement, shall
examine them to determine whether they conform to the requirements of this
Agreement or such Servicing Agreement, if applicable. If any such instrument
is found not to conform to the requirements of this Agreement or such
Servicing Agreement if applicable in a material manner, the Trustee shall
take such action as it deems appropriate to have the instrument corrected.
The Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Master Servicer or the Special
Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
(c) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement and the Servicing
Agreements, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Agreement and the Servicing Agreement, no implied
covenants or obligations shall be read into this Agreement or any
Servicing Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement and the
Servicing Agreements;
83
<PAGE>
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement.
SECTION 10.02 Monitoring Certificateholders and Directing
Certificateholder.
(a) Each Monitoring Certificateholder is hereby deemed to have
agreed by virtue of its purchase of a Certificate to provide its name and
address to the Trustee and to notify the Trustee of the transfer of any
Certificate of a Monitoring Class the selection of a Directing
Certificateholder or the resignation or removal thereof. The Directing
Certificateholder is hereby deemed to have agreed by virtue of its purchase
of a Certificate to notify the Trustee when such Certificateholder is
appointed Directing Certificateholder and when it is removed or resigns.
(b) Within thirty (30) days of the Delivery Date, the Trustee
shall notify the Monitoring Certificateholders that they may select a
Directing Certificateholder for purposes of Sections 5.03 and 5.11 of this
Agreement. Such notice shall set forth the process established by the
Trustee in order to select a Directing Certificateholder.
(c) A "Monitoring Class" as of any time of determination shall be
the following Class or Classes of Certificates:
(i) if the Class outstanding with the most subordinate interest
in the Trust Fund represents at least 2% by Class Balance of all the
Certificates, such Class only;
(ii) otherwise, each Class, in reverse order of seniority, but
only to the extent necessary to represent, in the aggregate, at least
2% by Class Balance of all the Certificates.
(d) Once a Directing Certificateholder has been selected pursuant
to clause (b) above, each of the Servicer, the Depositor, the Trustee and
each other Certificateholder (or Certificate Owner, if applicable) shall be
entitled to rely on such selection unless a majority of the Monitoring
Certificateholders, by Certificate Balance, or such Directing
Certificateholder shall have notified the Trustee and each
other Monitoring Certificateholder, in writing, of the
84
<PAGE>
resignation of such Directing Certificateholder or the selection of a
new Directing Certificateholder. Upon the resignation of a Directing
Certificateholder, the Trustee shall request the Monitoring
Certificateholders to select a new Directing Certificateholder.
(e) Within two (2) Business Days (or as soon thereafter as
practicable if Monitoring Certificates are held in Book-Entry Form) of
receiving a request from the Special Servicer pursuant to Section 5.03(a) the
Trustee shall deliver to the Special Servicer and the Master Servicer a list
of each Monitoring Certificateholder and the Directing Certificateholder
including names and addresses. In addition to the foregoing, within two (2)
Business Days of receiving notice of the selection of a new Directing
Certificateholder or the existence of a new Monitoring Certificateholder, the
Trustee shall notify the Special Servicer.
(f) If at any time a Book-Entry Certificate belongs to a
Monitoring Class, the Trustee shall notify the related Certificateholders
(through the Depository, unless the Trustee shall have been previously
provided with the name and address of such Certificateholder) of such event
and shall request that it be informed of any change in the identity of the
related Certificate Owner from time to time.
(g) Until it receives notice to the contrary each of the Servicers
and the Trustee shall be entitled to rely on the most recent notification
with respect to the identity of the Monitoring Certificateholders and the
Directing Certificateholder.
SECTION 10.03 Powers of Attorney.
The Trustee shall execute and deliver any powers of attorney
prepared and delivered to it by the Special Servicer pursuant to Section
5.03(b) or the related Servicing Agreement.
SECTION 10.04 Certification by Certificate Owners.
To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person which
shall specify, in reasonable detail satisfactory to the Trustee, the Class
and Certificate Balance of the Certificate owned, the value of such Person's
interest in such Certificate and any intermediaries through which such
Certificate is held. The Trustee shall make such determination at the
request of such Person or any Servicer. The Trustee shall be entitled to
rely conclusively on information it receives from the Depository, Depository
Participants, and indirect participating brokerage firms for which a
Depository Participant acts as agent, with respect to the identity
of a Certificate Owner.
85
<PAGE>
SECTION 10.05 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely upon and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders,
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the Trustee shall
not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default
(which has not been cured or waived), to exercise such of the rights
and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs;
(iv) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default which may have
occurred, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so by
Holders of Certificates entitled to at least 25% of the Voting Rights;
provided, however,
86
<PAGE>
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against
such expense or liability as a condition to taking any such action.
The reasonable expense of every such reasonable examination shall
be paid by the Master Servicer or, if paid by the Trustee, shall be
repaid by the Master Servicer upon demand;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, provided, however, that the Trustee shall
remain liable for the performance of all duties hereunder;
(vii) The Trustee shall not be required to obtain a deficiency
judgment against any Mortgagor;
(viii) For all purposes under this Agreement or any of the
Servicing Agreements, the Trustee shall not be deemed to have notice of
any Event of Default hereunder or thereunder unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Holders of the Certificates and this Agreement;
(ix) The Trustee shall not be responsible for any act or omission
of the Certificate Registrar (unless the Trustee or an Affiliate of the
Trustee is acting as Certificate Registrar), the Master Servicer, the
Special Servicer or the Depositor; and
(x) Other than as expressly provided herein, the Trustee shall
not be required to monitor the activities of any Servicer and shall not be
responsible for the actions or omissions of any such Servicer.
SECTION 10.06 Trustee Not Liable for Certificates or Mortgage
Loans.
The recitals contained herein and in the Certificates, other than
the Certificate of Authentication, shall be taken as the statements of the
Depositor, the Master Servicer or the Special Servicer, as the case may be,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Agreement
(other than as to the due authorization, execution and delivery thereof by
it) or of the Certificates (other than as to the due authorization
and execution thereof by it) or of any Mortgage Loans or related document.
The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the
Depositor in respect of the
87
<PAGE>
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in
or withdrawn from the Certificate Account or any other account by or on behalf
of the Depositor, the Master Servicer or the Special Servicer. The Trustee
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer, and
accepted by the Trustee in good faith, pursuant to this Agreement.
SECTION 10.07 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights it would have if it
were not Trustee.
SECTION 10.08 Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) The Trustee shall be entitled to receive as reasonable
compensation out of the Certificate Account (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
of the Trustee hereunder on each Distribution Date in an amount equal to
0.0225% per annum, calculated on the same basis as interest on the
Certificates.
(b) The Trustee and any director, officer, employee or agent of
the Trustee shall be entitled to indemnification out of the Certificate
Account for any loss, liability or expense (including without limitation
costs and expenses of litigation, and of investigation, counsel fees,
damages, judgments and amounts paid in settlement) incurred in connection
with any act or omission on the part of the Trustee with respect to this
Agreement or the Certificates (other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence of the
Trustee in the performance of duties hereunder, or as may arise from a breach
of any representation or warranty of the Trustee set forth herein or from any
failure of the Trustee to perform its obligations set forth in Section 10.15,
or as may be covered under Section 10.08(c)); provided, however, that with
respect to any third party claim:
(i) the Trustee shall have given the Master Servicer, the
Depositor, the Holders and, if in the respect to a Specially Serviced
Mortgage Loan, the Special Servicer, written notice thereof promptly after
the Trustee shall have knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee
shall cooperate and consult fully with the Master Servicer, the
Depositor and, if in the respect to a Specially Serviced Mortgage Loan,
the Special Servicer in preparing such defense; and
88
<PAGE>
(iii) notwithstanding anything to the contrary in this Section 10.08,
the Trust Fund shall not be liable for settlement of any such claim by
the Trustee entered into without the prior consent of the Master Servicer,
the Depositor and, if in the respect to a Specially Serviced Mortgage
Loan, the Special Servicer, which consent shall not be unreasonably
withheld.
Without in any way limiting the generality of the foregoing
indemnity, such indemnity shall specifically cover any loss, liability,
expense and costs of litigation and investigation, counsel fees, damages,
judgments and amounts paid in settlement incurred by the Trustee pursuant to
any federal, state or local environmental statute.
(c) The provisions of this Section 10.08 shall survive the
termination of this Agreement. Any payment hereunder made by the Depositor,
the Master Servicer or the Special Servicer to the Trustee shall be from its
own funds, without reimbursement therefor from Certificateholders or the
Trust Fund.
SECTION 10.09 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of any state or the
United States of America or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or
state authority. If such association or corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such association or corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. The short-term or long-term
debt obligations of the Trustee shall at all times be rated in a rating
category by each Rating Agency (or if such obligations are not rated by Fitch
Investors Service, L.P., are rated by each other Rating Agency) at least
equal to the rating one category below the highest rating assigned by such
Rating Agency to the then outstanding Certificates, but in no event lower
than an "investment grade" rating by such Rating Agency, so as not to cause
a downgrade, qualification or withdrawal of the then current ratings on the
Certificates, as confirmed in writing by such Rating Agencies. In case at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 10.10. The corporation or association
serving as Trustee may have normal banking and trust relationships with the
Depositor and its Affiliates, the Master Servicer and its Affiliates or the
Special Servicer and its Affiliates.
89
<PAGE>
SECTION 10.10 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders. Upon
receiving such notice of resignation, the Master Servicer shall promptly
appoint a successor trustee acceptable to the Depositor by written
instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument
shall be delivered to the Certificateholders, the Depositor and the Special
Servicer by the Master Servicer. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 10.09 and shall fail to resign
after written request therefor by the Depositor or the Master Servicer, or
if at any time the Trustee shall become incapable of acting, or shall be
adjudged bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Master Servicer may
remove the Trustee and appoint a successor trustee acceptable to the
Depositor by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A copy of
such instrument shall be delivered to the Certificateholders, the Depositor
and the Special Servicer by the Master Servicer.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to
the Trustee so removed and one complete set to the successor so appointed.
A copy of such instrument shall be delivered to the remaining
Certificateholders and the Special Servicer by the Master Servicer.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor trustee
as provided in Section 10.11.
SECTION 10.11 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 10.10
shall execute, acknowledge and deliver to the Master Servicer and to its
predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act,
90
<PAGE>
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as
if originally named as trustee herein. The predecessor trustee shall deliver
to the successor trustee all Mortgage Loan Files and related documents and
statements held by it hereunder (other than any Mortgage Loan Files at the
time held by a Custodian, which shall become the agent of any successor
trustee hereunder), and the Master Servicer and the predecessor trustee shall
execute and deliver such instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations, and to
enable the successor trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 10.09.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section, the successor Trustee shall mail notice of the
succession of such Trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register.
SECTION 10.12 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or
with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such entity shall be
eligible (including the receipt of Rating Agency confirmations) under the
provisions of Section 10.09 or 10.11, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 10.13 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing the same may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity,
such title to the Trust Fund, or any part thereof, and, subject to the other
provisions of this Section 10.13, such powers, duties, obligations, rights and
trusts as the Master Servicer and the Trustee may consider necessary or
desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, or in case an
Event of Default shall have occurred and be continuing, the Trustee alone
shall have the power to make such appointment. No co-trustee or separate
91
<PAGE>
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 10.09 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be required under Section 10.11 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 10.13 all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as Trustee hereunder or as successor to the Master Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article X. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 10.13 shall not relieve the Trustee of its duties and
responsibilities hereunder.
SECTION 10.14 Appointment of Custodians.
(a) The Trustee may, with the consent of the Master Servicer,
appoint one or more Custodians to hold all or a portion of the Mortgage Loan
Files as agent for the Trustee. Subject to the other provisions of this
Article X, the Trustee agrees to enforce the terms and provisions of Sections
2.01 and 2.02 hereof against the Custodian for the benefit of the
Certificateholders. Each Custodian shall be a depository institution subject
to supervision by federal or state authority, shall have combined capital and
surplus of at least $10,000,000, shall
92
<PAGE>
be qualified to do business in the jurisdiction in which it holds any Mortgage
Loan File and shall not be the Depositor or any Affiliate of the Depositor.
Each Custodian shall be subject to the same obligations and standard of care as
are imposed on the initial Custodian hereunder in connection with the retention
of Mortgage Loan Files. The appointment of one or more Custodians shall not
relieve the Trustee from any of its obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of any Custodian.
SECTION 10.15 Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants to the Master Servicer
and the Depositor, as of the Delivery Date, that:
(i) The Trustee is a banking corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter or bylaws or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable
to it or any of its assets.
(iii) The Trustee has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Master Servicer, the Special Servicer and the Depositor,
constitutes a valid, legal and binding obligation of the Trustee, enforceable
against the Trustee in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms
of this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Trustee's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Trustee to perform
its obligations under this Agreement or the financial condition of the
Trustee.
93
<PAGE>
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith reasonable
judgment, is likely to materially and adversely affect either the ability of
the Trustee to perform its obligations under this Agreement or the financial
condition of the Trustee.
SECTION 10.16 Massachusetts Filings.
The Trustee shall make all filings required under Massachusetts
General Laws, Chapter 182, Sections 2 and 12.
94
<PAGE>
ARTICLE XI
TERMINATION
SECTION 11.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 11.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer and the Trustee (other than the obligations of the
Trustee to provide for and make payments to Certificateholders as hereafter
set forth and any indemnification provision) shall terminate upon payment to
the Certificateholders and the deposit of all amounts held by or on behalf
of the Master Servicer and the Trustee and required hereunder to be so paid
or deposited on the Distribution Date following the earlier to occur of (i)
the purchase by the Master Servicer, the Special Servicer, any holder of a
Class R-I Certificate, the holder of an aggregate Percentage Interest in
excess of 50% of the Most Subordinate Class of Certificates or (to the extent
all of the remaining Mortgage Loans are being serviced thereby as Primary
Servicer) the Primary Servicer of all Mortgage Loans remaining in the Trust
Fund at a price equal to the sum of (A) the aggregate Purchase Price of all
the Mortgage Loans (other than REO Property) included in the Trust Fund, plus
the appraised value of each REO Property, if any, included in the Trust Fund,
as determined by the Depositor and (B) one month's accrued interest on the
Stated Principal Balance of any REO Mortgage Loan (ii) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund; provided, however, that in no event shall
the trust created hereby continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of Joseph P. Kennedy, the late
ambassador of the United States to the Court of St. James, living on the date
hereof.
Any Person which shall make an election to purchase all of the
Mortgage Loans remaining in the Trust Fund pursuant to clause (i) of the
preceding paragraph shall do so by giving written notice to the Trustee and
the Depositor no later than 60 days prior to the anticipated date of
purchase; provided, however, that no such election to purchase all of the
Mortgage Loans remaining in the Trust Fund pursuant to clause (i) above shall
be made unless the aggregate Stated Principal Balance of the Mortgage Loans
remaining in the Trust Fund at the time of such election is less than 5% of
the aggregate Cut-off Date Balance of the Mortgage Loans.
Notice of any termination shall be given promptly by any such
Person electing to terminate by letter to Certificateholders mailed (a) in
the event such notice is given in connection with the purchase of the
Mortgage Loans and each REO Property, not earlier than the 60th day and not
later than the 30th day of the month next preceding the month of the proposed
final distribution on the Certificates or (b) otherwise during the month of
such final distribution on or before the Determination Date in such month, in
each case specifying (i) the Distribution Date
95
<PAGE>
upon which the Trust Fund will terminate and final payment of the Certificates
will be made upon presentation and surrender of Certificates at the office of
the Certificate Registrar therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Certificate Registrar.
Unless it is acting as Certificate Registrar, the Master Servicer shall give
such notice to the Certificate Registrar at the time such notice is given to
Certificateholders. In the event such notice is given in connection with the
Master Servicer's purchase of all of the Mortgage Loans remaining in the Trust
Fund, the Master Servicer shall deposit in the Certificate Account not later
than the last Business Day of the Collection Period relating to the
Distribution Date on which the final distribution on the Certificates is to
occur an amount in immediately available funds equal to the above-described
purchase price. Upon receipt of an Officers' Certificate to the effect that
such final deposit has been made, the Trustee shall release to the Master
Servicer the Mortgage Loan Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments necessary to
effectuate transfer of the Mortgage Loans.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall
distribute to each Certificateholder so presenting and surrendering its
Certificates (i) the amount otherwise distributable on such Distribution Date
in accordance with Section 6.02 in respect of the Certificates so presented
and surrendered, if not in connection with the Master Servicer's purchase of
all of the Mortgage Loans, or (ii) such Certificateholder's Percentage
Interest of that portion of the Available Distribution Amount for such
Distribution Date allocable to payments on the Class of Certificates so
presented and surrendered as described below, if in connection with the
Master Servicer's purchase of all of the Mortgage Loans. If the Trust Fund
is to terminate in connection with the Master Servicer's purchase of all of
the Mortgage Loans, the Available Distribution Amount for the final
Distribution Date shall be allocated in the order set forth in Section 6.02.
96
<PAGE>
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01 Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, (i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein which may be inconsistent
with any other provisions herein, (iii) to make any other provisions with
respect to matters or questions arising hereunder which shall not be
inconsistent with the provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated; or (v) if such amendment, as evidenced by an Opinion of Counsel
delivered to the Trustee, is reasonably necessary to comply with any
requirements imposed by the Code or any successor or amendatory statute or
any temporary or final regulation, revenue ruling, revenue procedure or other
written official announcement or interpretation relating to federal income
tax laws or any proposed such action which, if made effective, would apply
retroactively to the Trust Fund at least from the effective date of such
amendment, or would be necessary to avoid the occurrence of a prohibited
transaction or to reduce the incidence of any tax that would arise from any
actions taken with respect to the operation of the Trust Fund; provided that
such action (except any amendment described in clause (v) above) shall not,
as evidenced by an Opinion of Counsel delivered to the Trustee, adversely
affect in any material respect the interests of any Certificateholder;
provided further, however, that an Opinion of Counsel shall not be required
if each Rating Agency then rating the Certificates shall have confirmed in
writing that immediately following such amendment such Rating Agency will not
qualify, lower or withdraw its rating on the Certificates as a result of such
amendment.
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates affected thereby entitled to at least
51% of the Voting Rights for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate without the consent of the
Holder of such Certificate, (ii) adversely affect in any material respect the
interests of the Holders of any Class of Certificates in a manner other than
as described in (i) without the consent of the Holders of all Certificates
of such Class, or (iii) reduce the aforesaid percentages of Certificates the
Holders of which are required to consent to any such amendment without the
consent of the Holders of all Certificates then outstanding. Notwithstanding
any other provision of this Agreement, for purposes of the giving or
withholding of consents pursuant to this Section 12.01, Certificates
registered in the name of the
97
<PAGE>
Depositor, the Master Servicer, the Special Servicer or any Affiliate of the
Depositor, the Master Servicer or the Special Servicer shall be entitled to
Voting Rights with respect to matters described in clauses (i) and (ii) of this
paragraph affecting such Certificates.
(c) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the Master Servicer shall consent to any amendment
to this Agreement unless the Trustee and the Master Servicer shall each have
obtained or been furnished with an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Master Servicer or the
Trustee in accordance with such amendment will not result in the imposition
of a tax on the Trust Fund pursuant to the REMIC Provisions or cause the
Trust Fund to fail to qualify as a REMIC at any time that any Certificates
are outstanding.
(d) Promptly after the execution of any such amendment, the
Trustee shall furnish a statement describing the amendment to each
Certificateholder and each Underwriter and a copy of such amendment to each
Rating Agency.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 12.01 to approve the particular form
of any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant
to Section 12.01(a) or (c) shall be borne by the Person seeking the related
amendment.
(h) The Trustee shall not enter into or consent to any amendment
of a Servicing Agreement unless the conditions set forth in clause (a) or (b)
above are satisfied with respect to such amendment.
SECTION 12.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or all of the properties subject to the Mortgages are situated, and in any
other appropriate public recording office or elsewhere, such recordation to
be effected by the Master Servicer at the expense of the Trust Fund on
direction by the Trustee, but only upon direction accompanied by an Opinion
of Counsel to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders; provided,
98
<PAGE>
however, that the Trustee shall have no obligation or responsibility to
determine whether any such recordation of this Agreement is required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, 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.
SECTION 12.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up
of the Trust Fund, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, a Servicing
Agreement or any Mortgage Loan, unless, with respect to any suit, action or
proceeding upon or under or with respect to this Agreement, such Holder
previously shall have given to the Trustee a written notice of an Event of
Default, or of a default by the Depositor in the performance of any of its
obligations hereunder, and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates entitled to at least
25% of the Voting Rights shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee, for 60 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. It is understood and
intended, and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
99
<PAGE>
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 12.04 Governing Law.
This Agreement and the Certificates shall be construed in
accordance with the internal 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 12.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given if (a) personally delivered, (b) mailed by registered
mail, postage prepaid, return receipt requested, and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex, telecopy or telegraph and confirmed
by a writing delivered by means of (a), (b) or (c), to: (i) in the case of
the Depositor, J.P. Morgan Commercial Mortgage Finance Corp., 60 Wall Street,
New York, New York 10260, Attention: President, telecopy number: (212) 648-
5138; (ii) in the case of the Master Servicer and Special Servicer, Banc One
Management and Consulting Corporation, 1717 Main Street, 11th Floor, Dallas,
Texas 75201, Attention: Edgar L. Smith, Chief Operating Officer and
Executive Vice President, telephone number: 214-290-5178, telecopy number:
214-290-4480; (iii) in the case of the Trustee, State Street Bank and Trust
Company, Two International Place - 5th Floor, Boston, Massachusetts 02110,
Attention: Corporate Trust Department, telephone number: 617-786-3000,
telecopy number: 617-664-5367; and (iv) in the case of the Rating Agencies,
(A) Standard & Poor's Ratings Services, 25 Broadway, New York, New York
10004, Attention: Commercial Mortgage Surveillance Group, and (B) Fitch
Investors Service, L.P., One State Street Plaza, New York, New York 10004,
Attention: Commercial Mortgage-Backed Securities Group, telephone number:
212-908-0537, telecopy number: 212-635-0295; or as to each such Person such
other address as may hereafter be furnished by such Person to the parties
hereto in writing. Any communication required or permitted to be delivered
to a Certificateholder shall be sent to the address of such Holder as shown
in the Certificate Register.
SECTION 12.06 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 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
100
<PAGE>
of the other provisions of this Agreement or of the Certificates or the rights
of the Holders thereof.
SECTION 12.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement
shall constitute a sale and not a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor
also intends and agrees that, in such event, (i) the Depositor shall be
deemed to have granted to the Trustee (in such capacity) a first priority
security interest in the Depositor's entire right, title and interest in and
to the assets comprising the Trust Fund, including without limitation, the
Mortgage Loans, all principal and interest received or receivable with
respect to the Mortgage Loans (other than loan principal and interest
payments due and payable prior to the Cut-off Date and Principal Prepayments
received prior to the Cut-off Date), all amounts held from time to time in
the Certificate Account, the Trust Master Collection Account, Trust Primary
Collection Account and the REO Account and all reinvestment earnings on such
amounts, together with all of the Depositor's right, title and interest in
and to the proceeds of any title, hazard or other Insurance Policies related
to such Mortgage Loans and (ii) this Agreement shall constitute a security
agreement under applicable law. The Depositor shall cause to be filed, as
a precautionary filing, a Form UCC-1 substantially in the form attached as
Exhibit E hereto in all appropriate locations in the State of New York
promptly following the initial issuance of the Certificates, and the Trustee
shall file continuation statements thereto at such office, in each case
within six months prior to the fifth anniversary of the immediately preceding
filing. The Depositor shall cooperate in a reasonable manner with the
Trustee in preparing and filing such continuation statements. This Section
10.10 shall constitute notice to the Trustee pursuant to any of the
requirements of the New York Uniform Commercial Code.
SECTION 12.08 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by each Servicer, the Trustee and
the respective successors and assigns thereof and shall inure to the benefit
of the Certificateholders.
(b) The rights and obligations of any Servicer under this
Agreement may not be assigned to any Person by such Servicer unless the
rights and obligations of such Servicer under each related Servicing
Agreement are also assigned to such Person pursuant to the terms of such
Servicing Agreement.
101
<PAGE>
SECTION 12.09 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 12.10 Notices and Information to Rating Agencies.
(a) The Trustee shall use its best efforts promptly to provide
notice to the Rating Agencies with respect to each of the following of which
it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the Trustee;
(iv) the repurchase of Mortgage Loans pursuant to Section
2.04(a);
(v) the final payment to any Class of Certificateholders; and
(vi) any change in the location of the Certificate Account.
(b) The Master Servicer shall use its best efforts promptly to
provide notice to the Rating Agencies with respect to any determination by
the Master Servicer that an Advance with respect to a Mortgage Loan
constitutes (or would, if made, constitute) a Nonrecoverable Advance under
any Servicing Agreement.
(c) The Master Servicer shall promptly furnish to the Rating
Agencies copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.07 of each Servicing Agreement,
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.08 of each Servicing Agreement,
(iii) the most current rent rolls and financial statements
available from time to time with respect to any Mortgaged Property or any
Mortgagor, and
102
<PAGE>
(iv) other information the Rating Agencies may reasonably request
consistent with the Master Servicer's servicing duties hereunder.
SECTION 12.11 Certificateholders List.
Upon request of the Directing Certificateholder, the Trustee shall
provide a list of each Certificateholder and, to the extent known to the
Trustee and solely based on the certification of Certificate Owners, each
Certificate Owner.
IN WITNESS WHEREOF, the parties hereto have caused their names to
be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
J.P. MORGAN COMMERCIAL MORTGAGE
FINANCE CORP.,
Depositor
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
BANC ONE MANAGEMENT AND CONSULTING
CORPORATION,
Master Servicer and Special Servicer
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
STATE STREET BANK AND TRUST COMPANY,
Trustee and Extension Advisor
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ________ day of ________, 199_ before me, a notary public
in and for said State, personally appeared ________________________________
known to me to be a __________________________ of J.P. Morgan Commercial
Mortgage Finance Corp., the corporation that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, 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
(Notarial Seal)
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of _____________, 199_, before me, a notary
public in and for said State, personally appeared ________________________
known to me to be _____________________ of ___________________________, one
of the ___________________ that executed the within instrument, and also
known to me to be the person who executed it on behalf of said
__________________, and acknowledged to me that such ____________________
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
(Notarial Seal)
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of _____________, 199_, before me, a notary
public in and for said State, personally appeared ________________________
known to me to be ___________________ of _________________________, one of
the ______________________ that executed the within instrument, and also
known to me to be the person who executed it on behalf of said
__________________, and acknowledged to me that such ___________________
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
(Notarial Seal)
<PAGE>
EXHIBIT A
FORM OF CLASS ( ) CERTIFICATE
(SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THE FOLLOWING INFORMATION IS PROVIDED
SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS
CERTIFICATE IS ______________ 199_. ASSUMING THAT THE MORTGAGE LOANS PREPAY
AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING THE
OID RULES TO THE CERTIFICATES EQUAL TO A CONSTANT PREPAYMENT RATE OF __% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$_____________ OF OID PER $1,000 OF INITIAL CERTIFICATE BALANCE. THE YIELD
TO MATURITY IS __% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____________ PER $1,000 OF INITIAL
CERTIFICATE BALANCE, COMPUTED UNDER THE APPROXIMATE METHOD. NO REPRESEN-
TATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE
PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.)
(SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
TRANSFER OF THIS CLASS ( ) CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH HEREIN. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER OF THIS CLASS ( )
CERTIFICATE TO A DISQUALIFIED ORGANIZATION (AS DEFINED HEREIN) OR AN AGENT
OF A DISQUALIFIED ORGANIZATION OR TO A NON-UNITED STATES PERSON (AS DEFINED
HEREIN), SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR
ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON
THIS CERTIFICATE.)
(THIS CLASS ( ) CERTIFICATE IS SUBORDINATE TO THE CLASS ( ) CERTIFICATES OF
THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.)
A-1
<PAGE>
(THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933 (THE "1933 ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.)
(NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF,
AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.)
CLASS ( ) MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of a pool of _________________________ formed and sold by
J.P. MORGAN COMMERCIAL MORTGAGE FINANCE CORP.
Series 199_-_ (Original Class ( )
Balance: $_________________)
(Certificate
Rate: ______________)
(On a Notional Amount)
Date of Pooling and Servicing (Initial Certificate
Agreement: ______, 199_ Balance of this Class ( )
Certificate as of the
Issue Date:
Cut-off Date: _________, 199_ $_______________________)
Issue Date: ___________, 199_ (Percentage Interest: ____%)
First Distribution Date:
____________, 199_
Master Servicer: Trustee:
_________________________ _________________________
No.______
2
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN J.P.
MORGAN COMMERCIAL MORTGAGE FINANCE CORP. OR ANY OF ITS AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
(DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, A PORTION OF THE
INTEREST ACCRUED IN RESPECT OF THIS CERTIFICATE FROM TIME TO TIME MAY NOT BE
PAYABLE CURRENTLY BUT MAY INSTEAD BE ADDED TO THE CERTIFICATE BALANCE HEREOF
AS SET FORTH HEREIN.) ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE HEREOF
AT ANY TIME MAY BE (MORE OR) LESS THAN THE AMOUNT SHOWN ABOVE.)
This certifies that __________ is the registered owner of the
Percentage Interest evidenced by this Class ( ) Certificate (obtained by
dividing the Initial Certificate Balance of this Class ( ) Certificate as of
the Issue Date by the Original Class ( ) Balance) in that certain beneficial
ownership interest evidenced by all the Class ( ) Certificates in the Trust
Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among J.P. Morgan Commercial Mortgage
Finance Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Agreement), ____________ (hereinafter called the
"Master Servicer" or the "Special Servicer", as applicable) and
______________ (hereinafter called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each (month) (_____) or, if such __th day is not a
Business Day, the Business Day immediately following (a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to
be distributed to the Holders of the Class ( ) Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under
the Agreement on a Class ( ) Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the Record Date for
such distribution (or, in the case of the distribution on the First
Distribution Date, no later than the Delivery Date) and is the registered
owner of Certificates the aggregate initial Certificate Balance of which is
at least $__________, or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Registrar. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate
A-3
<PAGE>
at the office of the Certificate Registrar or such other location as may be
specified in such notice.
(This Certificate is subordinate in right of distribution to the
Class ( ), Class ( ) and Class ( ) Certificates as set forth in the
Agreement. The Holders of the Class ( ) Certificates are entitled to receive
on any Distribution Date only that portion of the Available Distribution
Amount not required to be distributed on the Class ( ), Class ( ) and Class
( ) Certificates.)
With respect to each Distribution Date, the Class ( ) Certificates
will accrue thirty days' interest at the Pass-Through Rate for such
Distribution Date on the (Class ( ) Balance) (Notional Amount) outstanding
immediately prior to such Distribution Date, net of the Class ( )
Certificates' allocable share of certain interest shortfalls resulting from
principal prepayments on the Mortgage Loans which interest shortfalls are not
otherwise covered as provided under the Agreement. (The Pass-Through Rate
with respect to any Distribution Date is the rate per annum equal to ,
expressed as a percentage and rounded to decimal places).
(A portion of the interest accrued in respect of the Class ( )
Certificates for any Distribution Date will not be payable currently but will
instead be added to the Class ( ) Balance on such Distribution Date in the
event that the Mortgage Loans have experienced negative amortization during
the related Collection Period. The portion of interest to be so added to the
Class ( ) Balance will equal the Class ( ) Certificates' allocable share of
such aggregate negative amortization in respect of the Mortgage Loans.)
(As more specifically set forth in the Agreement, the Class ( )
Balance shall equal the Original Class ( ) Balance as adjusted from time to
time on each Distribution Date to reflect any interest added thereto as
contemplated by the immediately preceding paragraph and any distributions of
principal in respect of the Class ( ) Certificates. Following the First
Distribution Date specified above, the Certificate Balance of this
Certificate will equal the product of the Percentage Interest evidenced by
this Certificate and the Class ( ) Balance.)
(This Certificate is senior in right of distribution to the Class
( ), Class ( ) and Class ( ) Certificates as set forth in the Agreement.)
(The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account may be made from time to
time for purposes other than, and, in certain cases, prior to, distributions
to Certificateholders, such purposes including reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans.)
(Any distribution to the Holder of this Certificate in reduction
of the Certificate Balance hereof is binding on such Holder and all future
Holders of this Certificate
and any Certificate issued upon the transfer hereof or in exchange herefor
or in lieu hereof whether or not notation of such distribution is made upon
this Certificate.)
The Class ( ) Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement
A-4
<PAGE>
and subject to certain limitations therein set forth, Class ( ) Certificates
are exchangeable for new Class ( ) Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Certificates of the
same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
(No transfer of any Class ( ) Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration or qualification, then the Certificate Registrar shall require,
in order to assure compliance with such laws, receipt of: (a) if such
transfer is of Class ( ) Certificate and is purportedly made in reliance on
Rule 144A under the 1933 Act, either (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit C-1 to the Agreement, or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
of Exhibit C-2 to the Agreement and a certificate from such
Certificateholder's prospective transferee substantially in the form attached
as Exhibit C-3 to the Agreement; and (b) in all other cases, (i) except as
otherwise set forth in the Agreement, an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made
without such registration or qualification (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), (ii) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as
Exhibit C-4 to the Agreement and (iii) a certificate from such
Certificateholder's prospective transferee substantially in the form attached
as Exhibit C-5 hereto. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class ( ) Certificates
under the 1933 Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class
( ) Certificate without registration or qualification. Any Class ( )
Certificateholder desiring to effect such a transfer shall, and does hereby
agree to, indemnify the Trustee, the Certificate Registrar and the Depositor
against any liability that may result if the transfer is not so exempt or is
not made in accordance with such federal and state laws.)
(No transfer of a Class ( ) Certificate or any interest therein
shall be made to (A) any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh
plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code
(each, a "Plan") or (B) any Person who is directly or indirectly purchasing
the Class ( ) Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, unless the
A-5
<PAGE>
prospective transferee provides the Certificate Registrar with a
certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Certificate Registrar that such transfer will not result
in a violation of Section 406 of ERISA or Section 4975 of the Code or cause
the Master Servicer or Trustee to be deemed a fiduciary of such Plan or
result in the imposition of an excise tax under Section 4975 of the Code.
In the absence of its having received the certification and Opinion of
Counsel contemplated by the preceding sentence, the Certificate Registrar
shall require the prospective transferee of any Class ( ) Certificate to
certify that it is neither (A) a Plan nor (B) a Person who is directly or
indirectly purchasing such Class ( ) Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.)
(No transfer of any Class ( ) Certificate shall be made to a
Non-United States Person. Notwithstanding anything to the contrary contained
herein, prior to registration of any transfer, sale or other disposition of
a Class ( ) Certificate, the Certificate Registrar shall have received (i)
an affidavit from the proposed transferee substantially in the form attached
as Exhibit D-1 to the Agreement, to the effect that, among other things, (A)
such transferee is not a Disqualified Organization or an agent (including a
broker, nominee or middleman) of a Disqualified Organization, (B) such
transferee is not a Non-United States Person, (C) such transferee has no
present knowledge or expectation that it will become insolvent or subject to
a bankruptcy proceeding for so long as the Class ( ) Certificate remains
outstanding, and (D) no purpose of such proposed transfer, sale or other
disposition of the Class ( ) Certificate is or will be to impede the
assessment or collection of any tax, and (ii) a certificate from the
transferor substantially in the form attached as Exhibit D-2 to the
Agreement, to the effect that, among other things, no purpose of such
proposed transfer, sale or other disposition of the Class ( ) Certificate
is or will be to impede the assessment or collection of any tax.
Notwithstanding the registration in the Certificate Register of any transfer,
sale or other disposition of a Class ( ) Certificate to a Disqualified
Organization or an agent (including a broker, nominee or middleman) of a
Disqualified Organization or to a Non-United States Person, such registration
shall be deemed to be of no legal force or effect whatsoever and such Person
shall not be deemed to be a Certificateholder for any purpose hereunder,
including, but not limited to, the receipt of distributions in respect of
such Class ( ) Certificate. If any purported transfer of a Class ( )
Certificate shall be in violation of the provisions of Section 5.02(d) of the
Agreement, as described in this paragraph, then the prior Holder of the Class
( ) Certificate purportedly transferred shall, upon discovery that the
transfer of such Class ( ) Certificate was not in fact permitted by Section
5.02(d) of the Agreement, be restored to all rights as Holder thereof
retroactive to the date of the purported transfer. The Trustee and the
Master Servicer shall be under no liability to any Person for any
registration of transfer of a Class ( ) Certificate that is not permitted by
Section 5.02(d) of the Agreement or for making payments due on such Class
( ) Certificate to the purported Holder thereof or taking any other action
with respect to such purported Holder under the provisions of the Agreement.
The prior Holder shall be entitled to recover from any purported Holder of a
Class ( ) Certificate that was in fact not a permitted transferee under
Section 5.02(d) of the Agreement at the time it became a Holder all payments
made on such Class ( ) Certificate. The Holder of a Class ( ) Certificate,
by its acceptance thereof, shall be deemed for all purposes to have consented
to the provisions of Section 5.02 of the Agreement and to any amendment of
the Agreement deemed necessary by counsel of the Depositor to ensure that the
transfer of a Class ( ) Certificate to a Disqualified Organization or any
other Person will not cause the Trust Fund to cease to qualify as a REMIC or
cause the imposition of a tax upon the Trust Fund.)
A-6
<PAGE>
(A Disqualified Organization is any of (i) the United States, any
State or political subdivision thereof, any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (ii) any organization (other than a cooperative described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1
of the Code unless such organization is subject to the tax imposed by Section
511 of the Code, or (iii) any organization described in Section 1381(a)(2)(C)
of the Code. A corporation will not be treated as an instrumentality of the
United States or of any State or any political subdivision thereof if all of
its activities are subject to tax and, with the exception of FHLMC, a
majority of its board of directors is not selected by a governmental unit.
A Non-United States Person is a Person other than a citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in, or under the laws of, the United States or any political
subdivision thereof, or an estate or trust whose income from sources without
the United States is includible in gross income for United States federal
income tax purposes regardless of its connection with the conduct of a trade
or business within the United States.)
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar nor any such agent shall be
affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon distribution (or provision for distribution) to
the Certificateholders of all amounts held by or on behalf of the Master
Servicer or the Trustee and required to be distributed to them pursuant to
the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund, and (ii) the purchase by the Master Servicer at
a price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all other assets of the Trust Fund. The Agreement
permits, but does not require, the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and all other assets of the Trust Fund. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than (10%) of the aggregate
Cut-off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
A-7
<PAGE>
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain limited
circumstances(, including any amendment necessary to maintain the status of
the Trust Fund as a REMIC,) without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
The recitals contained herein and in the Agreement, other than the
Certificate of Authentication, shall be taken as the statements of the
Depositor or the Master Servicer, as the case may be, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of the Agreement (other
than as to the due authorization, execution and delivery thereof by it) or
of the Certificates (other than as to the due authorization and execution
thereof by it) or of any Mortgage Loan or related document. The Trustee
shall not be accountable for the use or application by the Depositor of any
of the Certificates issued to it or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor in respect of
the assignment of the Mortgage Loans to the Trust Fund, or any funds
deposited in or withdrawn from the Certificate Account or any other account
by or on behalf of the Depositor or the Master Servicer. The Trustee shall
not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor or the Master Servicer, and accepted by the
Trustee in good faith, pursuant to the Agreement.
This Certificate shall be construed in accordance with the internal
laws of the State of New York, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
Dated:
_______________________________________
as Trustee
(SEAL) By: ___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class ( ) Certificates referred to in the
within-mentioned Agreement.
_______________________________________
as Certificate Registrar
By: ___________________________________
Authorized Signatory
A-9
<PAGE>
EXHIBIT B
FORM OF ASSET STRATEGY REPORT
B-1
<PAGE>
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
___________________, 19_
(CERTIFICATE REGISTRAR)
Re: J.P. Morgan Commercial Mortgage Finance Corp.,
Mortgage Pass-Through Certificates,
Series 199_-_, Class ( )
----------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to _______________________________
(the "Transferee") of a Certificate evidencing a ____% Percentage Interest
in the captioned Class of Certificates (the "Certificate"), pursuant to
Section 7.02 of the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of _____________, 199__, among J.P. Morgan
Commercial Mortgage Finance Corp., as depositor, __________, as master
servicer and special servicer, and _______________, as trustee. All terms
used herein and not otherwise defined shall have the meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies,
represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Certificate with the
full right to transfer the Certificate free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Certificate,
any interest in the Certificate or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificate, any interest in the Certificate or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificate, any interest in the Certificate or any other similar security
with, any person by means of any form of general solicitation or general
advertising, including but not limited to any advertisement, article, notice
or other communication published in any newspaper, magazine or similar news
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or advertising, or
in any manner which would constitute a distribution under the Securities
C-1
<PAGE>
Act of 1933 (the "1933 Act") or which would render the disposition of the
Certificate a violation of Section 5 of the 1933 Act or require registration
pursuant thereto.
_______________________________________
(Transferor)
By: ___________________________________
Name: _________________________________
Title: ________________________________
C-2
<PAGE>
EXHIBIT D
FORM OF INVESTMENT LETTER --
QUALIFIED INSTITUTIONAL BUYER
(Date)
(Trustee Name and Address)
J.P. Morgan Securities Inc.
as Initial Purchaser in connection with
the Private Placement Memorandum
referred to below
60 Wall Street
New York, New York 10260
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 1996-C3, (Class F, Class G, Class NR, Class R-I, Class
R-II and Class R-III) (the "Certificates") of J.P. Morgan Commercial Mortgage
Finance Corp. (the "Depositor"), we confirm that:
1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated __________, relating to the
Certificates and such other information as we deem necessary in order to make
our investment decision. We understand that the Private Placement Memorandum
speaks only as of its date and that the information contained therein may not
be correct or complete as of any time subsequent to such date.
2. We understand that the Certificates have not been, and will
not be registered under the Securities Act of 1933, as amended (the "Act")
and may not be sold except as permitted by the restrictions and conditions
set forth in the Pooling and Servicing Agreement dated as of __________, 1996
relating to the Certificates and the undersigned agrees to be bound by, and
not to resell, pledge or otherwise transfer the Certificates except in
compliance with, such restrictions and conditions and the Act. We understand
that on any proposed resale of any Certificates, we will be required to
furnish to the Trustee such certifications, legal opinions and other
information as it may require to confirm that the proposed sale is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Act. We further understand that the
Certificates will bear a legend to the foregoing effect.
3. We are a "qualified institutional buyer" (within the meaning
of Rule 144A under the Act) (a "QIB") and we are acquiring the Certificates
for our own account or
D-1
<PAGE>
for the account of a QIB for investment purposes and not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Act, and have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each
able to bear the economic risk of our or their investment. We acknowledge
that the sale of the Certificates to us is being made in reliance on
Rule 144A.
4. We are acquiring each of the Certificates purchased by us for
our own account or for a single account (which is a QIB and from which no
resale, pledge or other transfer may be made) as to each of which we exercise
sole investment discretion.
5. We are not an employee benefit plan (a "Plan") subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code") or a person acting on behalf of such a Plan or using the
assets of such a Plan to acquire the Certificates.
You are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By: ___________________________________
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
D-2
<PAGE>
EXHIBIT E
FORM OF INVESTMENT LETTER --
INSTITUTIONAL ACCREDITED INVESTOR
(Date)
(Trustee Name and Address)
J.P. Morgan Securities Inc.
as Initial Purchaser in connection with
the Private Placement Memorandum
referred to below
60 Wall Street
New York, New York 10260
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 1996-C3, (Class F, Class G, Class NR, Class R-I, Class
R-II and Class R-III) (the "Certificates") of J.P. Morgan Commercial Mortgage
Finance Corp. (the "Depositor"), we confirm that:
1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated __________, relating to the
Certificates and such other information as we deem necessary in order to make
our investment decision. We understand that the Private Placement Memorandum
speaks only as of its date and that the information contained therein may not
be correct or complete as of any time subsequent to such date.
2. We understand that the Certificates have not been, and will
not be registered under the Securities Act of 1933, as amended (the "Act")
and may not be sold except as permitted by the restrictions and conditions
set forth in the Pooling and Servicing Agreement dated as of __________, 1996
relating to the Certificates and the undersigned agrees to be bound by, and
not to resell, pledge or otherwise transfer the Certificates except in
compliance with, such restrictions and conditions and the Act. We understand
that on any proposed resale of any Certificates, we will be required to
furnish to the Trustee such certifications, legal opinions and other
information as it may require to confirm that the proposed sale is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Act. We further understand that the
Certificates will bear a legend to the foregoing effect.
3. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3), or (7) under the Act) and we are acquiring the
Certificates for investment purposes and not with a view to, or for offer or
sale in connection with, any distribution
E-1
<PAGE>
in violation of the Act, and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of
our investment in the Certificates, and we and any accounts for which we are
acting are each able to bear the economic risk of our or their investment.
4. We are acquiring each of the Certificates purchased by us for
our own account or for a single account (each of which is an institutional
"accredited investor" and from which no resale, pledge or other transfer may
be made) as to which we exercise sole investment discretion.
5. We are not an employee benefit plan (a "Plan") subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code") or a person acting on behalf of such a Plan or using the
assets of such a Plan to acquire the Certificates.
You are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By: ______________________________
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
E-2
<PAGE>
EXHIBIT F-1
FORM OF TRANSFER AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
(NAME OF OFFICER), being first duly sworn, deposes and says that:
1. He is the (Title of Officer) of (Name of Owner) (the record or
beneficial owner (the "Owner") of J.P. Morgan Commercial Mortgage Finance
Corp., Mortgage Pass-Through Certificate, Series 199_-_, Class ( ), No. ___
(the "Class ( ) Certificate")), a ________________ duly organized and
existing under the laws of (the State of ______________) (the United States),
on behalf of which he makes this affidavit. Capitalized terms used but not
defined herein have the respective meanings assigned thereto in the Pooling
and Servicing Agreement pursuant to which the Class ( ) Certificate was
issued.
2. The Owner (i) is and will be a "Permitted Transferee" as of (date
of transfer) and (ii) is acquiring the Class ( ) Certificate for its own
account or for the account of another Owner from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any person other than a "disqualified organization" or a
possession of the United States. (For this purpose, a "disqualified
organization" means the United States, any state or political subdivision
thereof, any agency or instrumentality of any of the foregoing (other than
an instrumentality all of the activities of which are subject to tax and,
except for the Federal Home Loan Mortgage Corporation, a majority of whose
board of directors is not selected by any such governmental entity) or any
foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural
electric or telephone cooperative, or any organization (other than certain
farmers' cooperatives) that is generally exempt from federal income tax
unless such organization is subject to the tax on unrelated business taxable
income.
3. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class ( ) Certificate to disqualified organizations under
the Internal Revenue Code of 1986, as amended, that applies to all transfers
of the Class ( ) Certificate after March 31, 1988; (ii) that such tax would
be on the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a non-Permitted Transferee, on
the agent; (iii) that the person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such person
an affidavit that the transferee is a Permitted Transferee and, at the time
of transfer, such person does not have actual knowledge that the affidavit
is false.
4. The Owner is aware of the tax imposed on a "pass-through entity"
holding the Class ( ) Certificate if at any time during the taxable year of
the pass-through entity a
F-1-1
<PAGE>
non-Permitted Transferee is the record holder of an interest in such entity.
(For this purpose, a "pass-through entity" includes a regulated investment
company, a real estate investment trust or common trust fund, a partnership,
trust or estate, and certain cooperatives.)
5. The Owner is aware that it cannot transfer the Class
( ) Certificate unless the transferee, or the transferee's agent, delivers
to the Certificate Registrar, among other things, an affidavit in
substantially the same form as this affidavit.
6. The Owner consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a
reasonable arrangement to ensure that the Class ( ) Certificate will only be
owned, directly or indirectly, by an Owner that is a Permitted Transferee.
7. The Owner's taxpayer identification number is ___________________.
8. No purpose of the Owner relating to its purchase of a Class ( )
Certificate is or will be to impede the assessment or collection of any tax.
9. The Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as the Class ( )
Certificate remains outstanding.
10. The Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as the
Class ( ) Certificate remains outstanding.
11. No purpose of the Owner relating to any sale of any Class ( )
Certificate will be to impede the assessment or collection of any tax.
12. The Owner is not a Non-United States Person.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, pursuant to the authority of its Board of Directors, by its
(Title of Officer) and its Corporate Seal to be hereunto attached, attested
by its (Assistant) Secretary, this ____ day of __________, 199__.
(NAME OF OWNER)
By: _______________________________________
(Name of Officer)
(Title of Officer)
(Corporate Seal)
F-1-2
<PAGE>
ATTEST:
_____________________
(Assistant) Secretary
Personally appeared before me the above-named (Name of Officer), known or
proved to me to be the same Person who executed the foregoing instrument and
to be the (Title of Officer) of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
Subscribed and Sworn before me this ____ day of 199_.
____________________________________________
NOTARY PUBLIC
COUNTY OF __________________________________
STATE OF ___________________________________
My Commission expires the
____ day of ____________, 19__.
F-1-3
<PAGE>
EXHIBIT F-2
FORM OF TRANSFEROR CERTIFICATE
__________, 199__
(CERTIFICATE REGISTRAR)
Re: J.P. Morgan Commercial Mortgage Finance Corp.,
Mortgage Pass-Through Certificates, Series
199 - , Class ( )
----------------------------------------------
Dear Sirs::
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of
a Class ( ) Certificate, we have no knowledge the Transferee is not a
Permitted Transferee.
Very truly yours,
___________________________
(Transferor)
By: __________________________
Name:
Title:
F-2-1
<PAGE>
EXHIBIT G
MORTGAGE LOAN SCHEDULE
G-1
<PAGE>
EXHIBIT H
SCHEDULE OF SERVICING AGREEMENTS AS OF DELIVERY DATE
1. Servicing Agreement dated as of April 30, 1996, among Morgan Guaranty
Trust Company of New York, as initial related owner, Banc One Management and
Consulting Corporation, as master servicer, and GMAC Commercial Mortgage
Corporation, as primary servicer and special servicer, as amended.
2. Second Amended and Restated Servicing Agreement dated as of February 1,
1996, among Morgan Guaranty Trust Company of New York, as initial related
owner, and Banc One Management and Consulting Corporation, as master
servicer, primary servicer and special servicer, as amended.
3. First Amended and Restated Servicing Agreement dated as of February
1, 1996, among Morgan Guaranty Trust Company of New York, as initial
related owner, Banc One Management and Consulting Corporation, as master
servicer, and AMRESCO Capital Corporation, as primary servicer and
special servicer, as amended.
H-1
<PAGE>
EXHIBIT I
LOAN SALE AGREEMENT
I-1
Y<PAGE>
EXHIBIT J
FORM OF ACKNOWLEDGMENT
The undersigned hereby acknowledges that U.S. securities laws may impose
certain restrictions on the use of the information provided to it pursuant
to the Pooling and Servicing Agreement dated as of June 1, 1996 by and among
J.P. Morgan Commercial Mortgage Finance Corp., as depositor, Banc One
Management and Consulting Corporation, as master servicer and special
servicer, and State Street Bank and Trust Company, as trustee.
____________________________
By:_________________________
Name:
Title:
J-1
<PAGE>
EXHIBIT K
FORM OF REPORT TO CERTIFICATEHOLDERS
K-1
