- --------------------------------------------------------------------------
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) February 1, 1997
----------------
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
--------------
- --------------------------------------------------------------------------
Item 5. Other Events
- ---- ------------
Filing of Pooling and Servicing Agreement.
- -----------------------------------------
On February 1, 1997, 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, primary servicer
and special servicer, GMAC Commercial Mortgage Corporation, as primary
servicer, AMRESCO Management, Inc., as primary servicer, and State Street
Bank and Trust Company, as trustee and extension advisor. The Pooling and
Servicing Agreement is annexed hereto as Exhibit 99.
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
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/ Lawrence Blume
---------------------------
Name: Lawrence Blume
Title: Vice President
Dated: February 20, 1997
Exhibit Index
-------------
Exhibit Page
- ------- ----
99. Pooling and Servicing Agreement 6
EXHIBIT 99
EXECUTION COPY
==========================================================================
J. P. MORGAN COMMERCIAL MORTGAGE FINANCE CORP.,
Depositor,
and
BANC ONE MANAGEMENT AND CONSULTING CORPORATION,
Master Servicer, Special Servicer and Primary Servicer,
AMRESCO MANAGEMENT, INC.,
Primary Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Primary Servicer,
and
STATE STREET BANK AND TRUST COMPANY,
Trustee and Extension Advisor
_____________________________
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 1997
________________________________
$406,985,353
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C4
==========================================================================
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms . . . . . . . . . . . . . . . . . . . . 3
Accepted Servicing Practices . . . . . . . . . . . . . . . . . 3
Accepted Special Servicing Practices . . . . . . . . . . . . . 4
Acquisition Date . . . . . . . . . . . . . . . . . . . . . . . 4
Adjusted Available Distribution Amount . . . . . . . . . . . . 4
Adjusted Collateral Value . . . . . . . . . . . . . . . . . . . 5
Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Advance/Delinquency Report . . . . . . . . . . . . . . . . . . 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
BOMCC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 A2 Certificate . . . . . . . . . . . . . . . . . . . . . 7
Class A3 Certificate . . . . . . . . . . . . . . . . . . . . . 7
Class B Certificate . . . . . . . . . . . . . . . . . . . . . . 7
Class Balance . . . . . . . . . . . . . . . . . . . . . . . . . 7
Class C Certificate . . . . . . . . . . . . . . . . . . . . . . 7
Class D Certificate . . . . . . . . . . . . . . . . . . . . . . 7
Class E Certificate . . . . . . . . . . . . . . . . . . . . . . 7
Class F Certificate . . . . . . . . . . . . . . . . . . . . . . 7
Class G Certificate . . . . . . . . . . . . . . . . . . . . . . 7
Class NR Certificate . . . . . . . . . . . . . . . . . . . . . 7
Class R-I Certificate . . . . . . . . . . . . . . . . . . . . . 8
Class R-II Certificate . . . . . . . . . . . . . . . . . . . . 8
Class R-III Certificate . . . . . . . . . . . . . . . . . . . . 8
Class X Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Class X Component . . . . . . . . . . . . . . . . . . . . . . . 8
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Collateral Value Adjustment . . . . . . . . . . . . . . . . . . 9
Collateral Value Adjustment Capitalization Amount . . . . . . . 9
Collateral Value Adjustment Event . . . . . . . . . . . . . . . 10
Collateral Value Adjustment Reduction Amount . . . . . . . . . 10
Collection Period . . . . . . . . . . . . . . . . . . . . . . . 10
Combined Servicing Mortgage Loans . . . . . . . . . . . . . . . 10
Condemnation Proceeds . . . . . . . . . . . . . . . . . . . . . 10
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . 10
Crown Hotel Notes . . . . . . . . . . . . . . . . . . . . . . . 10
Crown Hotel Properties . . . . . . . . . . . . . . . . . . . . 11
Crown Participation . . . . . . . . . . . . . . . . . . . . . . 11
Crown Participation Agreement . . . . . . . . . . . . . . . . . 11
Custodial Agreement . . . . . . . . . . . . . . . . . . . . . . 11
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Cut-off Date . . . . . . . . . . . . . . . . . . . . . . . . . 11
Cut-off Date Balance . . . . . . . . . . . . . . . . . . . . . 11
Defaulted Mortgage Loan . . . . . . . . . . . . . . . . . . . . 11
Deficient Valuation . . . . . . . . . . . . . . . . . . . . . . 11
Definitive Certificate . . . . . . . . . . . . . . . . . . . . 11
Delivery Date . . . . . . . . . . . . . . . . . . . . . . . . . 11
Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Depository Participant . . . . . . . . . . . . . . . . . . . . 12
Detailed Loan Indicative Data File . . . . . . . . . . . . . . 12
Determination Date . . . . . . . . . . . . . . . . . . . . . . 12
Directing Certificateholder . . . . . . . . . . . . . . . . . . 12
Directly Operate . . . . . . . . . . . . . . . . . . . . . . . 12
Disqualified Organization . . . . . . . . . . . . . . . . . . . 12
Distribution Date . . . . . . . . . . . . . . . . . . . . . . . 13
Due Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Eligible Account . . . . . . . . . . . . . . . . . . . . . . . 13
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . 14
Escrow Account . . . . . . . . . . . . . . . . . . . . . . . . 14
Escrow Account Report . . . . . . . . . . . . . . . . . . . . . 14
Escrow Payments . . . . . . . . . . . . . . . . . . . . . . . . 14
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 15
Excess Condemnation Proceeds . . . . . . . . . . . . . . . . . 15
Excess Insurance Proceeds . . . . . . . . . . . . . . . . . . . 15
Extension Advisor . . . . . . . . . . . . . . . . . . . . . . . 15
FDIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Final Recovery Determination . . . . . . . . . . . . . . . . . 15
GMACCM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
GMACCM Mortgage Loans . . . . . . . . . . . . . . . . . . . . . 15
Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . 15
Independent . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Insurance Policy . . . . . . . . . . . . . . . . . . . . . . . 16
Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . 16
Interest Accrual Amount . . . . . . . . . . . . . . . . . . . . 16
Interest Distribution Amount . . . . . . . . . . . . . . . . . 16
Interested Person . . . . . . . . . . . . . . . . . . . . . . . 17
Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Liquidation Event . . . . . . . . . . . . . . . . . . . . . . . 17
Liquidation Proceeds . . . . . . . . . . . . . . . . . . . . . 17
Loan Sale Agreement . . . . . . . . . . . . . . . . . . . . . . 17
Loss Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . 17
Master Collection Account . . . . . . . . . . . . . . . . . . . 17
Master Collection Account Report . . . . . . . . . . . . . . . 17
Master Remittance Date . . . . . . . . . . . . . . . . . . . . 18
Master Servicer . . . . . . . . . . . . . . . . . . . . . . . . 18
Master Servicing Fee . . . . . . . . . . . . . . . . . . . . . 18
Master Servicing Fee Rate . . . . . . . . . . . . . . . . . . . 18
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . 18
MGT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Modification . . . . . . . . . . . . . . . . . . . . . . . . . 18
Monitoring Certificateholder . . . . . . . . . . . . . . . . . 18
Monitoring Class . . . . . . . . . . . . . . . . . . . . . . . 18
Monthly Payment . . . . . . . . . . . . . . . . . . . . . . . . 18
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . . . 18
Mortgage Loan Documents . . . . . . . . . . . . . . . . . . . . 19
Mortgage Loan File . . . . . . . . . . . . . . . . . . . . . . 19
Mortgage Loan Schedule . . . . . . . . . . . . . . . . . . . . 19
Mortgage Note . . . . . . . . . . . . . . . . . . . . . . . . . 19
Mortgage Rate . . . . . . . . . . . . . . . . . . . . . . . . . 19
Mortgaged Property . . . . . . . . . . . . . . . . . . . . . . 19
Mortgagor . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Most Subordinate Class of Certificates . . . . . . . . . . . . 19
Net Prepayment Premium . . . . . . . . . . . . . . . . . . . . 19
Nonrecoverable Advance . . . . . . . . . . . . . . . . . . . . 20
Nonrecoverable Advance Certificate . . . . . . . . . . . . . . 20
Non-United States Person . . . . . . . . . . . . . . . . . . . 20
Notional Amount . . . . . . . . . . . . . . . . . . . . . . . . 20
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 20
Operating Statements and Rent Rolls Report . . . . . . . . . . 20
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 20
Original Class Balance . . . . . . . . . . . . . . . . . . . . 20
Ownership Interest . . . . . . . . . . . . . . . . . . . . . . 20
P&I Advance . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Pass-Through Rate . . . . . . . . . . . . . . . . . . . . . . . 20
Payment Reserve . . . . . . . . . . . . . . . . . . . . . . . . 21
Percentage Interest . . . . . . . . . . . . . . . . . . . . . . 21
Permitted Investments . . . . . . . . . . . . . . . . . . . . . 21
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Prepayment Assumption . . . . . . . . . . . . . . . . . . . . . 22
Prepayment Interest Excess . . . . . . . . . . . . . . . . . . 22
Prepayment Interest Shortfall . . . . . . . . . . . . . . . . . 22
Prepayment Premium . . . . . . . . . . . . . . . . . . . . . . 22
Primary Collection Account . . . . . . . . . . . . . . . . . . 22
Primary Collection Account Report . . . . . . . . . . . . . . . 23
Primary Remittance Date . . . . . . . . . . . . . . . . . . . . 23
Primary Servicer . . . . . . . . . . . . . . . . . . . . . . . 23
Primary Servicing Fee . . . . . . . . . . . . . . . . . . . . . 23
Primary Servicing Fee Rate . . . . . . . . . . . . . . . . . . 23
Prime Rate . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Principal Distribution Amount . . . . . . . . . . . . . . . . . 23
Principal Prepayment . . . . . . . . . . . . . . . . . . . . . 23
Private Certificates . . . . . . . . . . . . . . . . . . . . . 24
Property Improvement Expenses . . . . . . . . . . . . . . . . . 24
Property Inspection Report . . . . . . . . . . . . . . . . . . 24
Property Protection Expenses . . . . . . . . . . . . . . . . . 24
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . 25
Qualified Insurer . . . . . . . . . . . . . . . . . . . . . . . 25
Rating Agency . . . . . . . . . . . . . . . . . . . . . . . . . 25
Realized Loss . . . . . . . . . . . . . . . . . . . . . . . . . 25
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Related Mortgage Loans . . . . . . . . . . . . . . . . . . . . 26
REMIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
REMIC I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
REMIC I Uncertificated Interests . . . . . . . . . . . . . . . 26
REMIC II . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
REMIC II Uncertificated Interests . . . . . . . . . . . . . . . 27
REMIC III . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
REMIC Provisions . . . . . . . . . . . . . . . . . . . . . . . 27
Remittance Period . . . . . . . . . . . . . . . . . . . . . . . 27
Remittance Rate . . . . . . . . . . . . . . . . . . . . . . . . 27
Remittance Report . . . . . . . . . . . . . . . . . . . . . . . 27
Rents from Real Property . . . . . . . . . . . . . . . . . . . 27
REO Account . . . . . . . . . . . . . . . . . . . . . . . . . . 27
REO Acquisition . . . . . . . . . . . . . . . . . . . . . . . . 27
REO Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . 27
REO Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 28
REO Property . . . . . . . . . . . . . . . . . . . . . . . . . 28
REO Status Report . . . . . . . . . . . . . . . . . . . . . . . 28
Repair and Remediation Reserve . . . . . . . . . . . . . . . . 28
Replacement Reserve . . . . . . . . . . . . . . . . . . . . . . 28
Replacement Special Servicer . . . . . . . . . . . . . . . . . 28
Request for Release and Receipt of Documents . . . . . . . . . 28
Required Appraisal Date . . . . . . . . . . . . . . . . . . . . 28
Required Rating . . . . . . . . . . . . . . . . . . . . . . . . 28
Residual Certificate . . . . . . . . . . . . . . . . . . . . . 29
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 29
Scheduled Principal Balance . . . . . . . . . . . . . . . . . . 29
Security Agreement . . . . . . . . . . . . . . . . . . . . . . 29
Senior Certificates . . . . . . . . . . . . . . . . . . . . . . 29
Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Servicing Advance . . . . . . . . . . . . . . . . . . . . . . . 29
Servicing Agreement . . . . . . . . . . . . . . . . . . . . . . 29
Servicing Fee . . . . . . . . . . . . . . . . . . . . . . . . . 29
Servicing Fee Rate . . . . . . . . . . . . . . . . . . . . . . 29
Servicing Officer . . . . . . . . . . . . . . . . . . . . . . . 30
Servicing Transfer Date . . . . . . . . . . . . . . . . . . . . 30
Servicing Transfer Event . . . . . . . . . . . . . . . . . . . 30
Specially Serviced Mortgage Loan . . . . . . . . . . . . . . . 30
Specially Serviced Mortgage Loan Status Report . . . . . . . . 30
Special Servicer . . . . . . . . . . . . . . . . . . . . . . . 30
Special Servicing Fee . . . . . . . . . . . . . . . . . . . . . 30
Startup Day . . . . . . . . . . . . . . . . . . . . . . . . . . 30
State Tax Laws . . . . . . . . . . . . . . . . . . . . . . . . 30
Stated Principal Balance . . . . . . . . . . . . . . . . . . . 31
Tax Matters Person . . . . . . . . . . . . . . . . . . . . . . 31
Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Tenant Improvement and Leasing Commissions Reserve . . . . . . 32
Transfer Date . . . . . . . . . . . . . . . . . . . . . . . . . 32
Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
UCC Financing Statement . . . . . . . . . . . . . . . . . . . . 32
Uncertificated Interest I . . . . . . . . . . . . . . . . . . . 32
Uncertificated Interest II . . . . . . . . . . . . . . . . . . 32
Uncertificated Interest III . . . . . . . . . . . . . . . . . . 32
Uncertificated Interest IV . . . . . . . . . . . . . . . . . . 32
Uncertificated Interest V . . . . . . . . . . . . . . . . . . . 32
Uncertificated Interest VI . . . . . . . . . . . . . . . . . . 33
Uncertificated Interest VII . . . . . . . . . . . . . . . . . . 33
Uncertificated Interest VIII . . . . . . . . . . . . . . . . . 33
Uncertificated Interest IX . . . . . . . . . . . . . . . . . . 33
Underwriter . . . . . . . . . . . . . . . . . . . . . . . . . . 33
United States Person . . . . . . . . . . . . . . . . . . . . . 33
Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . 33
Weighted Average Remittance Rate . . . . . . . . . . . . . . . 33
SECTION 1.02 Calculations . . . . . . . . . . . . . . . . . . . . 34
SECTION 1.03 Rules of Construction . . . . . . . . . . . . . . . . 34
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans . . . . . . . . . . . . 35
SECTION 2.02 Acceptance by Trustee . . . . . . . . . . . . . . . . 37
SECTION 2.03 Representations and Warranties of the Depositor, the
Master Servicer, each Primary Servicer and the
Special Servicer; Assignment of Rights . . . . . . . 38
SECTION 2.04 Repurchase of Mortgage Loans for Breaches of
Representation and Warranty . . . . . . . . . . . . . 43
SECTION 2.05 Execution of Certificates . . . . . . . . . . . . . . 44
ARTICLE III
GENERAL SERVICING AND ADMINISTRATION
SECTION 3.01 Access to Certain Documentation Regarding the
Mortgage Loans and This Agreement . . . . . . . . . 45
SECTION 3.02 Annual Statement As to Compliance . . . . . . . . . . 45
SECTION 3.03 Annual Independent Public Accountants' Servicing
Report . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 3.04 Merger or Consolidation of Any Servicer . . . . . . . 46
SECTION 3.05 Limitation on Liability of the Servicers and Others . 46
SECTION 3.06 Resignation of Servicers . . . . . . . . . . . . . . 47
SECTION 3.07 Maintenance of Errors and Omissions and Fidelity
Coverage . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 3.08 Indemnity . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 3.09 Information Systems . . . . . . . . . . . . . . . . . 49
SECTION 3.10 Successor to a Servicer . . . . . . . . . . . . . . . 49
SECTION 3.11 REMIC Administration . . . . . . . . . . . . . . . . 51
ARTICLE IV
PRIMARY SERVICING
SECTION 4.01 The Primary Servicers . . . . . . . . . . . . . . . . 55
SECTION 4.02 Primary Collection Account; Collection of Certain
Mortgage Loan Payments . . . . . . . . . . . . . . . 57
SECTION 4.03 Permitted Withdrawals from the Primary Collection
Accounts . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 4.04 Remittances to the Master Servicer . . . . . . . . . 61
SECTION 4.05 Primary Servicer Advances . . . . . . . . . . . . . . 61
SECTION 4.06 Escrow Accounts . . . . . . . . . . . . . . . . . . . 62
SECTION 4.07 Maintenance of Insurance . . . . . . . . . . . . . . 65
SECTION 4.08 Enforcement of "Due-on-Sale" Clauses; Assumption
Agreements . . . . . . . . . . . . . . . . . . . . . 66
SECTION 4.09 Review of Property Inspections, Operating Statements
and Rent Rolls . . . . . . . . . . . . . . . . . . . 67
SECTION 4.10 Reports to Master Servicer and Special Servicer . . . 68
SECTION 4.11 Confirmation of Balloon Payment . . . . . . . . . . . 69
SECTION 4.12 Primary Servicer Compensation . . . . . . . . . . . . 69
ARTICLE V
MASTER SERVICING
SECTION 5.01 The Master Servicer . . . . . . . . . . . . . . . . . 71
SECTION 5.02 Master Collection Account . . . . . . . . . . . . . . 72
SECTION 5.03 Permitted Withdrawals from the Master Collection
Accounts . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 5.04 Remittances to the Trustee . . . . . . . . . . . . . 75
SECTION 5.05 Master Servicer Advances . . . . . . . . . . . . . . 75
SECTION 5.06 Validation or Verification of Reports and Payment
Amounts . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 5.07 Reports on Master Collection Account; Reports
Updating Mortgage Loan Information . . . . . . . . . 76
SECTION 5.08 Master Servicer Compensation . . . . . . . . . . . . 77
SECTION 5.09 Mortgage Loan Schedule . . . . . . . . . . . . . . . 77
SECTION 5.10 Adjustment of Master Servicer's Compensation . . . . 78
SECTION 5.11 Payment of Rating Agency Fees . . . . . . . . . . . . 78
SECTION 5.12 Implementation of Operations and Maintenance Plans. . 78
SECTION 5.13 Experts . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 5.14 Dissemination of Information . . . . . . . . . . . . 79
SECTION 5.15 Mandatory Resignation of Master Servicer . . . . . . 79
ARTICLE VI
SPECIAL SERVICING
SECTION 6.01 The Special Servicer . . . . . . . . . . . . . . . . 80
SECTION 6.02 Transfer to Special Servicing . . . . . . . . . . . . 80
SECTION 6.03 Servicing of Specially Serviced Mortgage Loans . . . 81
SECTION 6.04 Management of REO Property. . . . . . . . . . . . . . 84
SECTION 6.05 Sale of REO Property and Specially Serviced Mortgage
Loans . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 6.06 REO Account; Collection of REO Proceeds . . . . . . . 87
SECTION 6.07 Remittances to Primary Servicer . . . . . . . . . . . 87
SECTION 6.08 Remittances to Master Servicer . . . . . . . . . . . 88
SECTION 6.09 Specially Serviced Mortgage Loan Status Reports, REO
Status Reports and Other Reports. . . . . . . . . . . 88
SECTION 6.10 Special Servicer Advances . . . . . . . . . . . . . . 89
SECTION 6.11 Environmental Considerations. . . . . . . . . . . . . 90
SECTION 6.12 Restoration of Specially Serviced Mortgage Loans . . 92
SECTION 6.13 Special Servicer Compensation. . . . . . . . . . . . 93
SECTION 6.14 Extension Advisor . . . . . . . . . . . . . . . . . . 93
SECTION 6.15 Collateral Value Adjustments . . . . . . . . . . . . 95
SECTION 6.16 Replacement Special Servicer . . . . . . . . . . . . 96
ARTICLE VII
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 7.01 Certificate Account; Remittances to the Trustee . . . 97
SECTION 7.02 Distributions . . . . . . . . . . . . . . . . . . . . 97
SECTION 7.03 Statements to Certificateholders . . . . . . . . . . 99
SECTION 7.04 Distribution of Reports to the Trustee and the
Depositor; Advances by the Master Servicer . . . . . 101
SECTION 7.05 Allocations of Realized Losses and Collateral Value
Adjustments . . . . . . . . . . . . . . . . . . . . . 102
ARTICLE VIII
THE CERTIFICATES
SECTION 8.01 The Certificates . . . . . . . . . . . . . . . . . . 104
SECTION 8.02 Registration of Transfer and Exchange of
Certificates . . . . . . . . . . . . . . . . . . . . 105
SECTION 8.03 Mutilated, Destroyed, Lost or Stolen Certificates . . 108
SECTION 8.04 Persons Deemed Owners . . . . . . . . . . . . . . . . 108
ARTICLE IX
THE DEPOSITOR
SECTION 9.01 Liability of the Depositor . . . . . . . . . . . . . 110
SECTION 9.02 Merger, Consolidation or Conversion of the
Depositor . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 9.03 Limitation on Liability of the Depositor and Others . 110
ARTICLE X
DEFAULT
SECTION 10.01 Events of Default . . . . . . . . . . . . . . . . . . 111
SECTION 10.02 Trustee to Act; Appointment of Successor . . . . . . 113
SECTION 10.03 Notification to Certificateholders . . . . . . . . . 114
SECTION 10.04 Waiver of Events of Default . . . . . . . . . . . . . 114
SECTION 10.05 Additional Remedies of Trustee Upon Event of
Default . . . . . . . . . . . . . . . . . . . . . . . 114
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.01 Duties of Trustee . . . . . . . . . . . . . . . . . . 115
SECTION 11.02 Monitoring Certificateholders and Directing
Certificateholder . . . . . . . . . . . . . . . . . . 116
SECTION 11.03 Powers of Attorney . . . . . . . . . . . . . . . . . 117
SECTION 11.04 Certification by Certificate Owners . . . . . . . . . 117
SECTION 11.05 Certain Matters Affecting the Trustee . . . . . . . . 117
SECTION 11.06 Trustee Not Liable for Certificates or Mortgage
Loans. . . . . . . . . . . . . . . . . . . . . . . . 119
SECTION 11.07 Trustee May Own Certificates . . . . . . . . . . . . 119
SECTION 11.08 Fees and Expenses of Trustee; Indemnification of
Trustee . . . . . . . . . . . . . . . . . . . . . . . 119
SECTION 11.09 Eligibility Requirements for Trustee . . . . . . . . 120
SECTION 11.10 Resignation and Removal of the Trustee . . . . . . . 121
SECTION 11.11 Successor Trustee . . . . . . . . . . . . . . . . . . 121
SECTION 11.12 Merger or Consolidation of Trustee . . . . . . . . . 122
SECTION 11.13 Appointment of Co-Trustee or Separate Trustee . . . . 122
SECTION 11.14 Appointment of Custodians . . . . . . . . . . . . . . 123
SECTION 11.15 Representations and Warranties of the Trustee . . . . 125
SECTION 11.16 Massachusetts Filings. . . . . . . . . . . . . . . . 126
SECTION 11.17 SEC Filings . . . . . . . . . . . . . . . . . . . . . 126
ARTICLE XII
TERMINATION
SECTION 12.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans . . . . . . . . . . . . . . . . . . . 127
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Amendment . . . . . . . . . . . . . . . . . . . . . . 129
SECTION 13.02 Recordation of Agreement; Counterparts . . . . . . . 130
SECTION 13.03 Limitation on Rights of Certificateholders . . . . . 131
SECTION 13.04 Governing Law . . . . . . . . . . . . . . . . . . . . 131
SECTION 13.05 Notices . . . . . . . . . . . . . . . . . . . . . . . 132
SECTION 13.06 Severability of Provisions . . . . . . . . . . . . . 132
SECTION 13.07 Grant of a Security Interest . . . . . . . . . . . . 133
SECTION 13.08 Successors and Assigns . . . . . . . . . . . . . . . 133
SECTION 13.09 Article and Section Headings . . . . . . . . . . . . 133
SECTION 13.10 Notices and Information to Rating Agencies . . . . . 133
SECTION 13.11 Certificateholders' List . . . . . . . . . . . . . . 134
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Asset Strategy Report
Exhibit C Form of Transferor Certificate
Exhibit D-1 Form of Investment Letter - Qualified Institutional Buyers
Exhibit D-2 Form of Investment Letter - Regulation S
Exhibit D-3 Form of Investment Letter - Rule 144
Exhibit E Form of Investment Letter - Accredited Investors
Exhibit F-1 Form of Transfer Affidavit
Exhibit F-2 Form of Transferor Certificate
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 Reports
Exhibit L Form of Primary Servicer Letter Pursuant to Section 4.01(e)
Exhibit M Form of Property Inspection Report Pursuant to Section 4.09(a)
Exhibit N Form of Summary of Operating Statements and Rent Rolls
Pursuant to Section 4.09(b)
Exhibit O Form of Remittance Report Pursuant to Section 4.10(a)
Exhibit P Form of Detailed Loan Indicative Data File Pursuant to Section
4.10(a)
Exhibit Q Form of Advance/Delinquency Report Pursuant to Section 4.10(a)
Exhibit R-1 Form of Master Collection Account Report Pursuant to Section
5.07(b)
Exhibit R-2 Form of Primary Collection Account Report Pursuant to Section
4.10(b)
Exhibit R-3 Form of Escrow Account Report Pursuant to Section 4.10(b)
Exhibit S Form of Notice Regarding Transfer to Special Servicing
Pursuant to Section 6.02(a)
Exhibit T Form of Primary Servicer Letter Pursuant to Section 6.02(b)
Exhibit U Form of Special Servicer Letter Pursuant to Section 6.02(e)
Exhibit V Form of Specially Serviced Mortgage Loan and REO Status Report
Pursuant to Section 6.09(a)
Exhibit W Form of Special Servicer Notice Pursuant to Section 6.12(a)
Exhibit X Form of Special Servicer Notice Pursuant to Section 6.12(b)
Exhibit Y Form of Request for Release and Receipt of Documents
Pursuant to Section 11.14(b)
Exhibit Z REO Account Letter Pursuant to Section 6.09(b)
This Pooling and Servicing Agreement, dated and effective as of
February 1, 1997, 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, Special Servicer and
Primary Servicer, AMRESCO Management, Inc., a Texas corporation, as Primary
Servicer, GMAC Commercial Mortgage Corporation, a California corporation, as
Primary 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. The Depositor hereby assigns to the Trustee, acting on behalf of the
Certificateholders, its interests and rights in the Mortgage Loans. 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 seven 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. Ten
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 A2,
Class A3, Class B, Class C, Class D, Class E, Class F, Class G and Class NR
Certificates and each of the Class X Components 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.
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 6.939% $40,000,000
Class A2 7.323% $100,124,000
Class A3 7.535% $138,659,000
Class B (1) $24,419,000
Class C (2) $22,384,000
Class D (3) $20,349,000
Class E (4) $6,104,000
Class X (5)(6) $0
Class F 7.38% $26,454,000
Class G 7.38% $16,279,000
Class NR 7.38% $12,213,353
Class R-I NA NA
Class R-II NA NA
Class R-III NA NA
- ----------------
(1) A weighted average Pass-Through Rate equal to, on each Distribution
Date, the excess of the Weighted Average Remittance Rate for such
Distribution Date over 1.287% per annum.
(2) A weighted average Pass-Through Rate equal to, on each Distribution
Date, the excess of the Weighted Average Remittance Rate for such
Distribution Date over 1.189% per annum.
(3) A weighted average Pass-Through Rate equal to, on each Distribution
Date, the excess of the Weighted Average Remittance Rate for such
Distribution Date over 1.131% per annum.
(4) A weighted average Pass-Through Rate equal to, on each Distribution
Date, the excess of the Weighted Average Remittance Rate for such
Distribution Date over 0.788% per annum.
(5) Based on the Notional Amount.
(6) The weighted average Pass-Through Rate equal to, on each Distribution
Date, the excess of the weighted average of the Remittance Rates on the
Mortgage Loans as of the Due Date in the month of such Distribution Date
over the weighted average of the Pass-Through Rates on the Certificates
immediately prior to 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 $406,985,353.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Primary Servicers
and the Trustee agree as follows:
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.
"Accepted Servicing Practices": The procedures that the Master
Servicer or Primary Servicer, as applicable, 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 or Primary Servicer, as applicable, 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 or Primary Servicer, as applicable, 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 Primary Servicer,
as applicable, or any Affiliate of the Master Servicer or
Primary Servicer, as applicable, may have with any Mortgagor
or any Affiliate of any Mortgagor or any other party to this
Agreement;
(ii) the Master Servicer's or Primary Servicer's, as applicable,
obligations to make Advances with respect to the Mortgage
Loans;
(iii) the adequacy of the Master Servicer's or Primary Servicer's,
as applicable, 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 Primary Servicer, as applicable, of any
other mortgage loans or property;
(v) the ownership by the Master Servicer or Primary Servicer, as
applicable, of any Certificates or other securities; or
(vi) the obligation of the Master Servicer or any Primary Servicer
to repurchase any Mortgage Loan.
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 or Primary Servicer, as applicable, 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 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,
as applicable, may have with any Mortgagor or any Affiliate of
any Mortgagor or any other party to this Agreement;
(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 as
applicable 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;
(v) the ownership by the Master Servicer or Special Servicer of
any Certificates or other securities issued in connection with
any Securitization; or
(vi) the obligation of the Master Servicer or any Primary Servicer
to repurchase any Mortgage Loan.
"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.
"Advance": A P&I Advance or Servicing Advance.
"Advance/Delinquency Report": The report prepared pursuant to
Section 4.10(a)(ii) hereof in the form of Exhibit Q hereto.
"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
6.03(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": December 26, 2028, which is the
first Distribution Date following 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.
"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, Pennsylvania, Georgia or Texas are authorized or
obligated by law or executive order to remain closed.
"Certificate": Any Class A1, Class A2, Class A3, Class B, Class C,
Class D, Class E, Class X, 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 7.01 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 1997-C4."
"Certificate Balance": With respect to any Class A1, Class A2,
Class A3, 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 X 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
with respect to Sections 10.04 and 13.01. 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 8.02.
"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 A2 Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class A3 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 Balance": With respect to any Class, the aggregate
principal amount of such Class outstanding as of any date of determination
equal to (A) the Original Class Balance thereof plus (B) any Collateral Value
Adjustment Capitalization Amount minus (C) any amounts allocated or
distributed 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.
"Class X Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class X Component": Each of the following components of the Class
X Certificates:
(a) the Class A1X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over 6.939% per annum
and a notional amount solely for purposes of calculating interest
thereon equal to the Class Balance of the Class A1 Certificates
immediately prior to such Distribution Date;
(b) the Class A2X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over 7.323% per annum
and a notional amount solely for purposes of calculating interest
thereon equal to the Class Balance of the Class A2 Certificates
immediately prior to such Distribution Date;
(c) the Class A3X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over 7.535% per annum
and a notional amount solely for purposes of calculating interest
thereon equal to the Class Balance of the Class A3 Certificates
immediately prior to such Distribution Date;
(d) the Class BX Component, with a Pass-Through Rate for any
Distribution Date equal to 1.287% per annum and a notional amount
solely for purposes of calculating interest thereon equal to the
Class Balance of the Class B Certificates immediately prior to such
Distribution Date;
(e) the Class CX Component, with a Pass-Through Rate for any
Distribution Date equal to 1.189% per annum and a notional amount
solely for purposes of calculating interest thereon equal to the
Class Balance of the Class C Certificates immediately prior to such
Distribution Date;
(f) the Class DX Component, with a Pass-Through Rate for any
Distribution Date equal to 1.131% per annum and a notional amount
solely for purposes of calculating interest thereon equal to the
Class Balance of the Class D Certificates immediately prior to such
Distribution Date;
(g) the Class EX Component, with a Pass-Through Rate for any
Distribution Date equal to 0.788% per annum and a notional amount
solely for purposes of calculating interest thereon equal to the
Class Balance of the Class E Certificates immediately prior to such
Distribution Date;
(h) the Class FX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over 7.38% per annum and
a notional amount solely for purposes of calculating interest
thereon equal to the Class Balance of the Class F Certificates
immediately prior to such Distribution Date;
(i) the Class GX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over 7.38% per annum and
a notional amount solely for purposes of calculating interest
thereon equal to the Class Balance of the Class G Certificates
immediately prior to such Distribution Date;
(j) the Class NRX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over 7.38% per annum and
a notional amount solely for purposes of calculating interest
thereon equal to the Class Balance of the Class NR Certificates
immediately prior to such Distribution Date.
"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 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). Notwithstanding the foregoing, a
Collateral Value Adjustment will be zero with respect to such Mortgage Loan
if (i) the event giving rise to such Collateral Value Adjustment is the
extension of the maturity of such Mortgage Loan, (ii) the payments on such
Mortgage Loan were not delinquent during the twelve months preceding such
extension and (iii) the payments on such Mortgage Loan were then current,
provided that if at any later date there occurs a delinquency in payment with
respect to such Mortgage Loan, the Collateral Value Adjustment will be
recalculated and applied as described above.
"Collateral Value Adjustment Capitalization Amount": With respect
to each class of Certificates to which a Collateral Value Adjustment has been
allocated, and to the extent not reversed, interest accrued at the related
Pass-Through Rate on the portion of the Class Balance of such class equal to
the sum of the aggregate Collateral Value Adjustment allocated to such class
for such Distribution Date and accrued and unpaid interest at the related
Pass-Through Rate on such Collateral Value Adjustment amount for prior
Distribution Dates.
"Collateral Value Adjustment Event": With respect to any Mortgage
Loan the earliest to occur of (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) as soon as reasonably practical after 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 Reduction Amount": With respect to
the Class X Certificates, the portion of the Interest Accrual Amount accrued
on the portion of the related Notional Amount corresponding to any Collateral
Value Adjustment or Collateral Value Adjustment Capitalization Amount
allocated, and not reversed, to the Class Balance of any class of
Certificates.
"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.
"Combined Servicing Mortgage Loans": The Mortgage Loans identified
as such on the Mortgage Loan Schedule.
"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 31.3423765% 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 $22,655,134.
"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.
"Custodial Agreement": The Custodial Agreement, dated as of August
5, 1994, by and between MGT and the Custodian, as amended from time to time
in accordance with the provisions thereof and as may be assigned, in whole or
in part in respect of the Mortgage Loans.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 11.14 as a document custodian for the Mortgage Loan
Files, which Person shall not be the Depositor, the Person which originated,
or sold to the Depositor or MGT, the related Mortgagor Loan 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": February 1, 1997.
"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": February 6, 1997.
"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.
"Detailed Loan Indicative Data File": The report prepared pursuant
to Section 4.10(a)(i) hereof in the form of Exhibit P hereto, as such form
may be reasonably amended from time to time by the Master Servicer.
"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, 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, Primary 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, Primary 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 (1)(i) to the
extent funds are on deposit in such account for a period not in
excess of 30 days, the commercial paper, short-term debt
obligations or other short-term deposits of which have the Required
Rating or (ii) to the extent funds are on deposit in such account
for a period in excess of 30 days, the long-term unsecured debt
obligations of which have a long term rating of at least "AA-" by
Standard and Poor's Ratings Services and if rated by Fitch
Investors Services, L.P., then Fitch Investors Services, L.P. and
(2) to the extent funds are on deposit in such account for a period
(a) not in excess of one month, (b) in excess of one month, but not
in excess of three months, (c) in excess of three months, but not
in excess of six months and (d) in excess of six months, the short
term debt obligations and/or long-term unsecured obligations shall
have the following respective ratings from Moody's Investors
Service, Inc.: (a) A2 or Prime-1, (b) A1 and Prime-1, (c) Aa3 and
Prime-1 and (d) Aa3 and Prime-1, 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; or
(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 U.S. 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 "Aaa" 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; or
(c) an account or accounts of a depository institution
acceptable to each Rating Agency (as evidenced in writing by each
Rating Agency that use of any such account as the Certificate
Account, Escrow Account, Master Collection Account or Primary
Collection Account will not result in a downgrading, qualification
or withdrawal of the ratings then assigned to the Certificates).
"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. SectionSection 9601-9657;
(ii) the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
SectionSection 6901-6991i;
(iii) the Toxic Substance Control Act, 15 U.S.C.
SectionSection 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.
-- ----
"Escrow Account": Each separate account or subaccounts, each of
which shall be an Eligible Account, created and maintained for the Mortgage
Loans pursuant to Section 4.06 hereof, each of which shall be entitled "(the
Primary Servicer) for the benefit of J.P. Morgan Commercial Mortgage Finance
Corp. Mortgage Pass-Through Certificates, Series 1997-C4, Account No.
_____________."
"Escrow Account Report": The report prepared pursuant to Section
4.10(b) hereof and in the form of Exhibit R-3 hereto.
"Escrow Payments": With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, fire and hazard insurance premiums, Payment Reserve,
Replacement Reserve, Repair and Remediation Reserve, Tenant Improvement and
Leasing Commissions Reserve and any other payments, in each case, to the
extent required to be escrowed by the Mortgagor pursuant to the Mortgage or
any other document included in the Mortgage Loan File.
"Event of Default": One or more of the events described in Section
10.01.
"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, 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 6.14
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 and its successors.
"GMACCM Mortgage Loans": The Mortgage Loans serviced by GMACCM as
Primary Servicer, as indicated in the Mortgage Loan Schedule.
"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 related Primary 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 related Primary Servicer, the Special Servicer or any Affiliate
thereof, and (iii) is not connected with the Depositor, the Master Servicer,
the related Primary 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 or the
related Mortgage Loan Documents.
"Insurance Proceeds": With respect to each Mortgage Loan, proceeds
of any primary hazard insurance policy required to be maintained pursuant to
Section 4.07 hereof, or any other Insurance Policy covering such Mortgage
Loan or the related Mortgaged Property, to be 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 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.
"Interest Accrual Amount": With respect to each Distribution Date
and any Class of Certificates (other than the Residual Certificates),
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 for such Distribution Date.
"Interest Distribution Amount": With respect to each Distribution
Date and any Class, the Interest Accrual Amount for such Distribution Date
reduced by (i) the product of (a) any excess of Prepayment Interest
Shortfalls for such Distribution Date over any Prepayment Interest Excess for
such Distribution Date 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 divided by the Interest Accrual Amount for all such
Classes of Certificates for such Distribution Date and (ii)(a) with respect
to each class of Certificates other than the Class X Certificates, any
Collateral Value Adjustment Capitalization Amount allocated to such class and
(b) with respect to the Class X Certificates, any Collateral Value Adjustment
Reduction Amount. The Interest Distribution Amount for the Class 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 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.
"Law": Any judgment, order, decree, writ, injunction, award,
statute, rule, regulation or requirement of any federal, state, local or
other agency, commission, instrumentality, tribunal, governmental authority,
arbitrator or court having or asserting jurisdiction over any particular
Person, property or matter applicable to such particular Person, property or
matter.
"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 or
Section 12.01; or (v) such Mortgage Loan is purchased by the Master Servicer,
Special Servicer or the related Primary Servicer pursuant to Section 12.01.
"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
February 1, 1997, 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, Primary Servicer or (unless advanced by the Master Servicer) the
Special Servicer has determined that an Advance previously made or proposed
to be made is a 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 Collection Account": The separate account, which shall be
an Eligible Account, created and maintained for the Mortgage Loans pursuant
to Section 5.02 hereof, each of which shall be entitled "Banc One Management
and Consulting Corporation, as Master Servicer, for the benefit of J.P.
Morgan Commercial Mortgage Finance Corp. Mortgage Pass-Through Certificates
Series 1997-C4.
"Master Collection Account Report": The report prepared pursuant
to Section 5.07(b) hereof and in the form of Exhibit R-1.
"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.
"Master Servicing Fee": As defined in Section 5.08 hereof.
"Master Servicing Fee Rate": With respect to all the Mortgage
Loans, other than the Combined Servicing Mortgage Loans and the Crown
Participation, 0.03% per annum. There will be no separate Master Servicing
Fee Rate for the Combined Servicing Mortgage Loans and there will be no fee
payable to the Master Servicer in addition to the Servicing Fee therefor in
connection with the Crown Participation.
"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 6.14(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 11.02(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 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 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 7.05.
"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 the 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).
"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 with respect to the Master Servicer and Special Servicer 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 X Certificates and
any Distribution Date, the Class Balance of all other Certificates
immediately preceding such Distribution Date.
"Officers' Certificate": With respect to any Servicer, a
certificate signed by a Servicing Officer of such Servicer.
"Operating Statements and Rent Rolls Report": The report prepared
pursuant to Section 4.09(b) hereof in the form of Exhibit N hereto, as such
report may be reasonably amended from time to time by the Master Servicer.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor, the Master
Servicer, any Primary 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, (b) compliance with the REMIC
Provisions, or (c) any actions or duties which can not be undertaken or are
no longer permitted under applicable law, must be an opinion of counsel who
is in fact Independent.
"Original Class Balance": As to any Class of Certificates with a
Class Balance, the Original Class Balance set forth in the Preliminary
Statement.
"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 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 A2, Class A3, Class B,
Class C, Class D, Class E, Class X, Class F, Class G and Class NR
Certificates, the corresponding Pass-Through Rate as set forth in the
Preliminary Statement. The Residual Certificates will not have a Pass-
Through Rate.
"Payment Reserve": With respect to a Mortgage Loan, the amount, if
any, of principal and interest payable thereon required, pursuant to the
related Mortgage Loan Documents, to be deposited into an escrow account to
cover a portion of the related Mortgagor's debt service obligations
thereunder.
"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 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;
(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 (v) 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; (w) its terms do not have a
predetermined fixed dollar amount of principal due at maturity that cannot
vary or change; (x) to the extent rated, an "r" highlighter is affixed to its
rating; (y) 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; or (z) such
instrument is purchased at a premium over par.
"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.
"Pool Factor": With respect to any Distribution Date, the
fraction, expressed as a percentage, the numerator of which is the aggregate
Class Balance of the Certificates, after giving effect to distributions made
or to be made on such Distribution Date and the denominator of which is the
aggregate original Class Balance of the Certificates.
"Prepayment Assumption": It is assumed for purposes of Section
3.11(l) 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 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 Collection Account": Each separate account, which shall
be an Eligible Account, created and maintained for the Mortgage Loans
pursuant to Section 4.02 hereof, each of which shall be entitled "_________
(the Primary Servicer), as Primary Servicer, for J.P. Morgan Commercial
Mortgage Finance Corp. Mortgage Pass-Through Certificates, Series 1997-C4."
"Primary Collection Account Report": The report prepared pursuant
to Section 4.10(b) hereof in the form of Exhibit R-2.
"Primary Remittance Date": With respect to any Distribution Date,
the third (3rd) Business Day preceding such Distribution Date.
"Primary Servicer": With respect to any Mortgage Loan, the Person
designated as such in the Mortgage Loan Schedule, which shall be AMRESCO
Management, Inc., BOMCC or GMAC Commercial Mortgage Corporation, or their
permitted successors.
"Primary Servicing Fee": As defined in Section 4.12 hereof.
"Primary Servicing Fee Rate": With respect to the Mortgage Loans
other than the Combined Servicing Mortgage Loans, the GMACCM Mortgage Loans
and the Crown Participation, 0.07% per annum for each such Mortgage Loan;
with respect to the GMACCM Mortgage Loans, 0.125% per annum for each such
Mortgage Loan; and with respect to the Combined Servicing Mortgage Loans, as
set forth in Section 4.12. There will be no fee payable to the Primary
Servicer in addition to the Servicing Fee therefor in connection with the
Crown Participation.
"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, amounts received as a result of the purchase
of any Mortgage Loan out of the Trust Fund or receipt of overdue payments,
(d) any Collateral Value Adjustment Capitalization Amount allocated in
connection with such Distribution Date, and (e) any other portion of the
Adjusted Available Distribution Amount remaining undistributed after payment
of any interest payable on the Certificates pursuant to clause (iv) of
Section 7.02(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.
"Private Certificates": The Class F, Class G, Class NR, Class R-I,
Class R-II and Class R-III Certificates.
"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 Inspection Report": The report prepared pursuant to
Section 4.09(a) hereof in the form of Exhibit M hereto.
"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
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 6.05(a) or
Section 12.01, 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 and any costs associated with such repurchase.
"Qualified Insurer": An insurance company:
(a)
(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 "A3" by
each Rating Agency (or, if not rated by Fitch Investors
Service, L.P., the other Rating Agencies); or
(b) acceptable to each Rating Agency (as evidenced in writing by each
Rating Agency that use of any such Qualified Insurer will not
result in a downgrading, qualification or withdrawal of the ratings
then assigned to the Certificates).
"Rating Agency": Each of Fitch Investors Service, L.P., Moody's
Investors Service, Inc. 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 6.10), 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 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
Rate and to 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.
"Related Mortgage Loans": With respect to any Primary Servicer,
Mortgage Loan serviced thereby as indicated in the Mortgage Loan Schedule.
"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 Master Collection Account, Primary 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
seven 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 seven uncertificated regular interests issued under REMIC I.
"REMIC II Uncertificated Interests": Each of Uncertificated
Interest I, Uncertificated Interest II, Uncertificated Interest III,
Uncertificated Interest IV, Uncertificated Interest V, Uncertificated
Interest VI, Uncertificated Interest VII, Uncertificated Interest VIII,
Uncertificated Interest IX and Uncertificated Interest X.
"REMIC III": A segregated pool of assets consisting of
Uncertificated Interest I, Uncertificated Interest II, Uncertificated
Interest III, Uncertificated Interest IV, Uncertificated Interest V,
Uncertificated Interest VI, Uncertificated Interest VII, Uncertificated
Interest VIII, Uncertificated Interest IX and Uncertificated Interest X.
"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.
"Remittance Report": The report prepared pursuant to Section
4.10(a)(i) hereof in the form of Exhibit O hereto.
"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 6.06.
"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 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 herein.
"Repair and Remediation Reserve": With respect to any Mortgage
Loan, the amounts required to be paid by the Mortgagor, pursuant to the
Mortgage Loan Documents, contemporaneously with the execution thereof, for
payment of costs and expenses relating to certain maintenance, repairs and/or
remedial or corrective work.
"Replacement Reserve": With respect to any Mortgage Loan, the
amounts required to be paid by the Mortgagor pursuant to the Mortgage Loan
Documents for payment of costs and expenses in connection with the
performance of work on the roofs, chimneys, gutters, downspouts, paving,
curbs, ramps, driveways, balconies, porches, patios, exterior walls, exterior
doors and doorways, windows, elevators and mechanical and HVAC equipment or
other repairs on the related Mortgaged Property.
"Replacement Special Servicer": As defined in Section 6.15.
"Request for Release and Receipt of Documents": A written Request
for Release and Receipt of Documents, substantially in the form of Exhibit Y
hereto.
"Required Appraisal Date": With respect to any Mortgage Loan
within 30 days of (a) any Collateral Value Adjustment Event, (b) the
occurrence of any event giving rise to a subsequent Collateral Value
Adjustment (including the delinquency referred to in the last sentence of the
definition of "Collateral Value Adjustment Event") more than twelve months
after an appraisal was obtained with respect to a previous Collateral Value
Adjustment or (c) if the Servicers have made P&I Advances for twelve
consecutive months following a Collateral Value Adjustment.
"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., each 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.,
each 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.
"Scheduled Principal Balance": As to each Mortgage Loan and any
date of determination, the principal balance of such Mortgage Loan on the
Cut-off Date, minus the sum of (i) all amounts representing the principal
-----
portion of the Monthly Payment due on or before such date of determination
whether or not received and (ii) all amounts representing unscheduled
payments or recoveries of principal (other than amounts representing late
payments subtracted pursuant to clause (i) above) collected with respect to
such Mortgage Loan during the immediately preceding Collection Period.
"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 A2, Class A3, Class B,
Class C, Class D, Class E and Class X Certificates.
"Servicer": The Master Servicer, each Primary Servicer or the
Special Servicer, as applicable.
"Servicing Advance": Any expenses identified in this Agreement as
a Servicing Advance which are incurred by any Servicer consistent with
Accepted Servicing Practices or Accepted Special Servicing Practices, as
applicable, or, with respect to any Mortgage Loan.
"Servicing Agreement": Each of the Servicing Agreements listed in
Exhibit H.
"Servicing Fee": With respect to any Mortgage Loan other than the
Crown Participation and (a) the Primary Servicer, the applicable Primary
Servicing Fee; (b) the Master Servicer, the Master Servicing Fee; and (c) the
Special Servicer, as set forth in Section 6.13. With respect to the Crown
Participation, the Servicing Fee set forth in the servicing agreement
referenced in the Crown Participation Agreement.
"Servicing Fee Rate": With respect to any Mortgage Loan, other
than a Combined Servicing Mortgage Loan or the Crown Participation, shall
equal the sum of the Master Servicing Fee Rate and the Primary Servicing Fee
Rate; with respect to any Combined Servicing Mortgage Loan, 0.04% per annum;
and with respect with respect to the Crown Participation 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 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).
"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 related
Primary Servicer shall have received notice of the foreclosure or proposed
foreclosure of any other lien on the Mortgaged Property; (iv) 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; (v) any other
default has occurred which has materially and adversely affected the value of
the related Mortgaged Loan and has continued unremedied for the applicable
grace period specified in the related Mortgage; (vi) the related Mortgaged
Property becomes REO Property; or (vii) if for any reason, the related
Primary Servicer cannot enter into an assumption agreement pursuant to
Section 4.08.
"Specially Serviced Mortgage Loan": Any Mortgage Loan with respect
to which a Servicing Transfer Event has occurred and which has not ceased to
be a Specially Serviced Mortgage Loan pursuant to Section 6.12.
"Specially Serviced Mortgage Loan Status Report": With respect to
any Mortgage Loan, shall have the meaning set forth herein.
"Special Servicer": Banc One Management and Consulting
Corporation, an Ohio corporation, or its successor servicer appointed as such
as herein provided.
"Special Servicing Fee": The compensation the Special Servicer
shall be entitled to receive pursuant to Section 6.13.
"Startup Day": The Delivery Date.
"State Tax Laws": The laws of the states of New York,
Massachusetts, Pennsylvania, Georgia 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.
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.
"Tenant Improvement and Leasing Commissions Reserve": With respect
to any Mortgage Loan, the amounts required to be paid by the Mortgagor
pursuant to the Mortgage Loan Documents to refit and release either vacant
space or blocks of space anticipated to be vacated during the term of
financing.
"Transfer Date": With respect to any Mortgage Loan, shall have the
meaning set forth herein.
"Trust Fund": REMIC I, REMIC II and REMIC III.
"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 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 A3 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 B 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 Class Balance of the Class C Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest VI": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class D Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest VII": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class E Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest VIII": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class F Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest IX": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class G Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest X": An interest in REMIC II with a
principal balance equal to the Class Balance of the 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, 98.0% of all the Voting Rights shall be allocated
among the Class A1, Class A2, Class A3, Class B, Class C, Class D, Class E,
Class F and Class NR Certificates in proportion to the respective Class
Balances, 1.00% of all Voting Rights shall be allocated to the Class X
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.
(a) 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, except as otherwise expressly provided
herein.
(b) The term "validate" as applied to actions of a Servicer, when
referring to data or information (whether or not contained in a Report)
received from another person or entity, shall mean "to take such actions as
are appropriate in accordance with Accepted Servicing Practices in order to
test or compare, as appropriate, such data or information so as to reasonably
infer its accuracy"; and
(c) The term "verify" as applied to actions of a Servicer, when
referring to data or information (whether or not contained in a Report)
received from another person or entity, shall mean "to receive, sort or
compile, in any combination as applicable, said data and information, and to
reject that which is erroneous on its face", without independent
investigation.
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 Custodial Agreement to the
extent such agreement relates 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 13.07, 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, as Trustee for J.P. Morgan
Commercial Mortgage Finance Corp. Mortgage Pass-Through
Certificates Series 1997-C4", 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 1997-C4";
(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
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 (i) the assignment of the Mortgage specified in clauses (iv) and
(v) above to be submitted for recording or filing, at its own expense, in the
appropriate public office for real property records; and (ii) the UCC-2 or
UCC-3 Assignments of Financing Statements specified in clause (x) above to be
submitted for recording or filing, at its own expense, in the appropriate
public office for UCC Assignments. 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 1997-C4"
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 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 to promptly 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 into the Master Collection Account and, upon receipt by
the Trustee of written notification of such deposit, signed by a Servicing
Officer, the Trustee or the 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, each Primary Servicer and the Special
Servicer; Assignment of Rights.
(a) The Depositor hereby represents and warrants to and covenants
with the Trustee, the Master Servicer, each Primary 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.
(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, each Primary
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
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 Servicers hereby represents, warrants and
covenants to the Trustee, the Master Servicer, the Special Servicer and the
Depositor, as of the Delivery Date, that:
(i) Due Organization and Authority.
------------------------------
(A) such Servicer has or shall obtain all licenses
necessary to carry on its business as now being conducted and
is or will become licensed, qualified and in good standing in
each state where a Mortgaged Property is located, if the laws
of such state require licensing or qualification in order to
conduct business of the type conducted by such Servicer and if
such failure to be licensed or qualified could have a material
and adverse effect on the ability of the Servicer to perform
its obligations under this Agreement or enforce the Mortgage
Loan Documents; no license, consent, approval, authorization
or order of, or registration or filing with, or notice to any
court or governmental agency or body is required for the
execution, delivery and performance by such Servicer of or
compliance by such Servicer with this Agreement or the
consummation of the transactions contemplated by this
Agreement, or if such license, consent, approval,
authorization or order of or registration or filing with or
notice to any court or governmental agency or body is
required, such Servicer has obtained the same or will obtain
the same prior to the time necessary for such Servicer to
perform its obligations under this Agreement relative thereto;
and in any event such Servicer is in compliance with the laws
of any such state to the extent necessary to ensure the
enforceability of the servicing of such Mortgage Loan in
accordance with the terms of this Agreement and the failure to
have any such license not yet obtained does not and will not
materially adversely affect the rights of the
Certificateholders hereunder or under the Mortgage Loan
Documents;
(B) such Servicer has the full power, authority and
legal right to execute and deliver this Agreement and to
perform its obligations in accordance herewith; the execution,
delivery and performance of this Agreement (including all
instruments to be delivered pursuant to this Agreement) by
such Servicer and the consummation of the transactions
contemplated hereby by such Servicer have been duly and
validly authorized; and
(C) this Agreement and all agreements contemplated
hereby to which such Servicer is or will be a party evidence
the valid, legal, binding and enforceable obligations of such
Servicer, regardless of whether such enforcement is sought in
a proceeding in equity or at law subject, as to
enforceability, to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting the rights and remedies of creditors and to the
effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law; and all
requisite corporate action has been taken by such Servicer to
make this Agreement and all agreements contemplated hereby to
which such Servicer is or will be a party valid and binding
upon the Servicer in accordance with their terms and
conditions;
(ii) Ordinary Course of Business. The consummation of the
---------------------------
transactions contemplated by this Agreement are in the ordinary course of
business of such Servicer;
(iii) Conflicts. Neither the execution and delivery of this
---------
Agreement, the acquisition of the servicing responsibilities by such
Servicer, or the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, (a) will conflict
with or result in a breach of any of the terms, conditions or provisions of
such Servicer's charter or by-laws or any legal restriction or, in any
material respect, any agreement or instrument to which such Servicer is now a
party or by which it is bound, or (b) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) or
result in an acceleration under any of the foregoing, or (c) result in the
violation of, and such Servicer is not in violation of, any law, rule,
regulation, order, judgment or decree to which such Servicer or its property
is subject, or (d) result in the creation or imposition of any lien, charge
or encumbrance that would have a material adverse effect upon the condition
(financial or otherwise) of such Servicer or any of its properties pursuant
to the terms of any mortgage, contract, deed of trust or other instrument, or
(e) impair the ability of the Trustee to realize on the Mortgage Loans,
impair the value of the Mortgage Loans, or impair the ability of the Trustee
to realize the full benefits accruing pursuant to this Agreement;
(iv) Ability to Service. To the best of such Servicer's
------------------
knowledge no event has occurred (including but not limited to, any change in
insurance coverage) which would make such Servicer unable to comply with
Accepted Servicing Practices or Accepted Special Servicing Practices, as
applicable. Such Servicer has the facilities, procedures, and experienced
personnel necessary for the prudent servicing of multifamily and commercial
mortgage loans of the same type as the Mortgage Loans;
(v) Servicing Fee. Such Servicer agrees that the entire
-------------
Servicing Fee with respect to the Mortgage Loans pursuant to this Agreement
shall be treated by such Servicer, for accounting and tax purposes, as
compensation for the servicing and administration of the Mortgage Loans
pursuant to this Agreement;
(vi) Ability to Perform. Such Servicer believes (and there are
------------------
no facts or circumstances known to the Servicer contrary to such belief) that
it can perform each and every covenant made by it in this Agreement;
(vii) No Litigation. There is no action, suit, proceeding or
-------------
investigation pending or to the best of such Servicer's knowledge, threatened
against such Servicer which, either in any one instance or in the aggregate,
may result in any material adverse change in the business, operations,
financial condition, properties or assets of such Servicer, or in any
material impairment of the right or ability of such Servicer to carry on its
business substantially as now conducted, or in any material liability on the
part of such Servicer, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of such Servicer contemplated herein, or
which would be likely to impair materially the ability of such Servicer to
perform under the terms and conditions of this Agreement; and
(viii) Financial Condition. Such Servicer's net worth,
-------------------
determined in accordance with GAAP, is at least equal to two million dollars
($2,000,000) and such Servicer has sufficient liquidity to meet all of its
obligations (including any obligation to make Advances) hereunder;
(c) In addition, BOMCC, as a condition to the consummation of the
transaction contemplated herein, hereby represents and warrants to the
Trustee and the Depositor that as of the Delivery Date, (i) it is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Ohio; and (ii) has received a favorable rating by
Standard and Poor's Ratings Services and Fitch Investors Service, L.P. to the
extent required to be rated thereby, to act as servicer of commercial
mortgage loans.
(d) In addition, AMRESCO Management, Inc. as a condition to the
consummation of the transactions contemplated hereby, hereby represents and
warrants to the Trustee, each other Servicer and the Depositor that as of the
Delivery Date it is a corporation duly organized, validly existing and in
good standing under the laws of the State of Texas.
(e) In addition, GMAC Commercial Mortgage Corporation, as a
condition to the consummation of the transaction contemplated herein, hereby
represents and warrants to the Trustee, each other Servicer and the Depositor
that as of the Delivery Date it is a corporation duly organized, validly
existing and in good standing under the laws of the State of California;
(f) In addition, each Primary Servicer, as a condition to the
consummation of the transaction contemplated herein, hereby represents and
warrants to the Trustee, each other Servicer and the Depositor that as of the
Delivery Date, that such Primary Servicer has received a favorable rating by
Standard and Poor's Ratings Services and Fitch Investors Service, L.P., to
the extent required to be rated thereby, to act as servicer of commercial
mortgage loans.
(g) In addition, each Primary Servicer, as a condition to the
consummation of the transaction contemplated herein, hereby represents and
warrants to the Trustee, the Master Servicer, the Special Servicer and the
Depositor, that such Servicer has duly performed its obligations under the
Servicing Agreement listed in Exhibit H, as applicable, in all material
respects 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.
(h) 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, the Custodial Agreement (to the extent related to the Mortgage
Loans), and the Crown Participation Agreement.
(i) 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, any Primary
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 Representa-
tion and Warranty.
(a) Within 90 days of the earlier of, the discovery by the
Depositor of, or receipt by the Depositor of written notice from the Master
Servicer, the Special Servicer, any Primary 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(h) 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 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,
the Special Servicer and the Primary Servicer shall release to the Depositor
or MGT all documents and records maintained by such Servicer and requested by
the Depositor or MGT; provided, that such 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 Servicers
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 Custodial Agreement and the Crown Participation
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.
ARTICLE III
GENERAL SERVICING AND ADMINISTRATION
SECTION 3.01 Access to Certain Documentation Regarding the Mortgage
Loans and This Agreement.
(a) Upon reasonable advance written notice, each Servicer shall
give the Master Servicer, the Trustee, the Rating Agencies, the Depositor and
such Person's agents or representatives, during normal business hours at such
Servicer's offices, reasonable access to all reports, information and
documentation regarding any Mortgage Loan, this Agreement, and the rights and
obligations of the Certificateholders and any of the Servicers hereunder
(including the right to make copies or extracts therefrom) and access to
officers of such Servicer responsible for such obligations, provided,
however, that each Servicer shall have no obligation to disclose --------
- -------
or provide access to any computer programs which are proprietary to such
-------
Servicer or access to which is limited by licensing agreements. In addition,
with respect to this or any other provision of this Agreement which requires
a Servicer to transmit documents, information or reports to any Person, the
Servicer shall be entitled to include in its transmittal letter, or other
data transmission format a statement that the enclosed information should not
be disseminated or otherwise used in any manner contrary to any federal or
state laws.
(b) Each Servicer shall, upon written request, allow the Rating
Agencies, the Depositor, the Trustee, the Master Servicer and their agents or
representatives reasonable access to such Servicer's premises and to such
books and records (including records stored electronically on computer tapes,
magnetic disks and the like) relating to the Mortgage Loans or REO Property
as to which access is reasonably requested and to a knowledgeable financial
or accounting officer thereof for the purpose of answering questions asked by
such Person regarding such Servicer or its ability to service the Mortgage
Loans.
SECTION 3.02 Annual Statement As to Compliance.
Each Servicer shall deliver to the Depositor, the Trustee and the Master
Servicer, on or before March 31 of each year, beginning March 31, 1998, a
statement, signed by a Servicing Officer thereof, stating that (a) a review
of the activities of such Servicer during the preceding calendar year (or
during the period from the date of commencement of its duties hereunder until
the end of such preceding calendar year in the case of the first such
certificate) and of its performance under this Agreement has been made under
such Servicing Officer's supervision; and (b) to the best of such Servicing
Officer's knowledge, based on such review, such Servicer has fulfilled all of
its material obligations under this Agreement throughout such period, or if
there has been a default in the fulfillment of any such obligation,
specifying each such default known to such Servicing Officer and the nature
and status thereof.
SECTION 3.03 Annual Independent Public Accountants' Servicing Report.
On or before March 31 of each year, beginning March 31, 1998, each
Servicer, at its expense, shall cause a firm of independent public
accountants that is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Depositor, the Trustee and the
Master Servicer to the effect that such firm has examined such documents and
records as it has deemed necessary and appropriate relating to the servicing
of the Mortgage Loans under this Agreement or substantially similar agreement
for the preceding calendar year (or during the period from the date of
commencement of such servicer's duties hereunder until the end of such
preceding calendar year in the case of the first such certificate) and that,
on the basis of such examination conducted substantially in compliance with
the Uniform Single Attestation Program for Mortgage Bankers, such firm is of
the opinion that such servicing during such period has been conducted in
compliance with this Agreement except for such exceptions that, in the
opinion of such firm, the Uniform Single Attestation Program for Mortgage
Bankers requires it to report, in which case such exceptions shall be set
forth in such statement.
SECTION 3.04 Merger or Consolidation of Any Servicer.
(a) Each Servicer shall keep in full force and effect its
existence, rights and franchises as an association or corporation under the
laws governing its charter or articles of incorporation except as permitted
in this Section 3.04 and shall 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, or any of the Mortgage Loans and to perform
its duties under this Agreement.
(b) Any Person into which a Servicer may be merged, converted, or
consolidated, or any Person resulting from any merger, conversion or
consolidation to which a Servicer shall be a party, or any Person succeeding
to the business of a Servicer, shall be the successor of such Servicer
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; provided, however, that the successor or
-------- -------
surviving Person shall be an entity whose business includes the servicing of
mortgage loans, shall service multifamily and/or commercial mortgage loans,
as applicable, in accordance with Accepted Servicing Practices or Accepted
Special Servicing Practices, as applicable, and shall satisfy the
requirements of Section 3.10 hereof with respect to the qualifications of a
successor to a Servicer.
SECTION 3.05 Limitation on Liability of the Servicers and Others.
Neither the Servicers nor any of the directors, officers, employees or
agents thereof shall be under any liability for any action taken or for
refraining from taking any action in accordance with Accepted Servicing
Practices or Accepted Special Servicing Practices, as applicable, in good
faith pursuant to this Agreement or for errors in judgment (not constituting
negligence or wilful misconduct); provided, however, that
-------- -------
this provision shall not protect any Servicer or agents of such Servicer
against any liability resulting from any breach of any representation or
warranty made herein, or from any liability specifically imposed on such
Servicer herein; and provided, further, that this provision shall not
-------- -------
protect any Servicer or agents of such Servicer against any liability that
would otherwise be imposed by reason of the willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
the obligations or duties hereunder. Each Servicer and any director,
officer, employee or agent thereof may rely in good faith on any document of
any kind prima facie properly executed and submitted by any
----- -----
other Servicer, the Depositor, the Trustee or the Custodian respecting any
matters arising hereunder. No Servicer shall be under any obligation to
appear in, prosecute or defend any legal action that is not incidental to its
duties to service the Mortgage Loans in accordance with this Agreement;
provided, however, that any Servicer may undertake any such
- -------- -------
action that it may deem necessary or desirable in respect to this Agreement
and any Mortgage Loan and the rights and duties of the parties hereto or the
interest of the Certificateholders. In such event, the reasonable legal
expenses and costs of such action and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust Fund, and such Servicer shall
be entitled to be reimbursed therefor from the Trust Fund upon written
demand.
SECTION 3.06 Resignation of Servicers.
Without in any way limiting this Section 3.06, neither the Master
Servicer nor the Special Servicer shall resign as such or delegate its rights
or duties hereunder or any portion thereof except (i) with the prior written
consent of the Trustee, which consent may not be unreasonably withheld, or
(ii) upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by such
Servicer. Any determination pursuant to clause (ii) of the immediately
preceding sentence permitting the resignation of a Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
A Primary Servicer may resign subject to the requirements set forth below in
this Section 3.06 and the Master Servicer shall assume the duties of such
Primary Servicer hereunder pursuant to Section 5.01(d). No such resignation
shall become effective until a successor shall have assumed such Servicer's
responsibilities and obligations hereunder in the manner provided in Section
3.10 hereof. Any such successor Servicer must be an established mortgage
loan servicing institution which meets the eligibility requirements for a
successor Servicer pursuant to Section 3.10. Any such successor Master
Servicer or Special Servicer must also be approved by the Trustee in writing.
SECTION 3.07 Maintenance of Errors and Omissions and Fidelity
Coverage.
(a) Each Servicer shall obtain and maintain at its own expense,
and keep in full force and effect throughout the term of this Agreement, a
blanket fidelity bond and an errors and omissions insurance policy covering
such Servicer's officers and employees and other Persons acting on behalf of
such Servicer in connection with its activities under this Agreement. The
amount of coverage shall be determined in accordance with Accepted Servicing
Practices and be at least equal to the sum of the following based upon the
total portfolio that such Servicer services for itself and all others:
(i) $300,000, plus;
(ii) 0.150% of the excess of the unpaid principal balance of all
the mortgage loans serviced by such Servicer over $100,000,000
but less than or equal to $500,000,000, plus;
(iii) 0.125% of the excess of the unpaid principal balance of all
the mortgage loans serviced by such Servicer over $500,000,000
but less than or equal to $1,000,000,000 plus;
(iv) 0.100% of the excess of the unpaid principal balance of all
the mortgage loans serviced by such Servicer over
$1,000,000,000.
The deductible on the fidelity bond or errors and omissions policy shall not
exceed the greater of $100,000 and five (5) percent of the face amount of
such bond or policy. In the event that any such bond or policy ceases to be
in effect, such Servicer shall immediately obtain a comparable replacement
bond or policy. Notwithstanding the foregoing, so long as the long term
unsecured debt obligations of such Servicer or its corporate parent have the
Required Rating for Eligible Accounts, such Servicer shall be entitled to
provide self-insurance or obtain from its parent adequate insurance, as
applicable, with respect to its obligation to maintain a blanket fidelity
bond or an errors and omissions insurance policy.
(b) From time to time, upon the request of the Master Servicer or
the Trustee, each Servicer shall furnish the Master Servicer and the Trustee
copies of all binders or certificates evidencing that the bond and policy
described in clause (a) above are in full force and effect. Each Servicer
shall promptly report in writing to the Trustee and each other Servicer any
change in such coverage resulting in a failure to satisfy the requirements of
clause (a) above and all cases of embezzlement or fraud or irregularities of
operation, suspected or otherwise, if such events involve such Servicer and
funds relating to the Mortgage Loans. The total losses, regardless of
whether claims are filed with the applicable insurer or surety, shall be
disclosed in such reports together with the amount of such losses covered by
insurance. If a bond or insurance claim report is filed with any of such
Servicer's bonding companies or insurers, a copy of such report shall be
promptly furnished to the Trustee and each other Servicer.
SECTION 3.08 Indemnity.
(a) Each Servicer shall indemnify the Depositor, the Trustee, the
Trust Fund, the Master Servicer and the Special Servicer (including any
successor Servicer) against any and all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel and
expenses of litigation, arising from claims or actions that were caused by or
resulted from a breach of any of such Servicer's representations and
warranties contained in this Agreement or the failure of such Servicer to
perform its duties and to service the Mortgage Loans in accordance with the
terms of this Agreement or arising out of the Servicer's willful misfeasance,
bad faith or negligence.
(b) Each Servicer shall be entitled to indemnification from the
Trust Fund for any and all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel and expenses
of litigation, incurred in connection with any legal action relating to any
Mortgage Loan and this Agreement, other than any cost, expense, loss, damage,
claim or liability incurred by reason of willful misfeasance, bad faith or
negligence of such Servicer in the performance of its duties hereunder or by
reason of reckless disregard of obligations or duties of such Servicer
hereunder.
(c) As soon as reasonably practicable after receipt by the
Depositor, any Servicer or the Trustee of a notice of any complaint or the
commencement of any action or proceeding with respect to which
indemnification is being sought under clause (a) or (b) above (each, an
"Indemnified Party"), such Indemnified Party shall notify each Servicer from
which indemnification is sought pursuant to clause (a) or clause (b) above
and the Trustee, if indemnification is sought from the Trust Fund (each, an
"Indemnifying Party") in writing of such complaint or of the commencement of
such action or proceeding, but failure so to notify the Indemnifying Party
shall not relieve the Indemnifying Party from any liability which the
Indemnifying Party may have hereunder or otherwise, except to the extent that
such failure materially prejudices the rights of the Indemnifying Party. If
the Indemnifying Party so elects or is requested by such Indemnified Party,
the Indemnifying Party shall assume the defense of such action or proceeding,
including the employment of counsel reasonably satisfactory to each
Indemnified Party and the payment of the fees and disbursements of such
counsel. In the event, however, such Indemnified Party reasonably determines
in its judgment that having common counsel would present such counsel with a
conflict of interest or that having common counsel would in any other way
disadvantage such Indemnified Party or if the Indemnifying Party fails to
assume the defense of the action or proceeding in a timely manner, then such
Indemnified Party may employ separate counsel to represent or defend it in
any such action or proceeding and the Indemnifying Party shall pay the fees
and disbursements of such counsel; provided, however, that the Indemnifying
-------- -------
Party shall not be required to pay the fees and disbursements of more than
one separate counsel for all Indemnified Parties in any jurisdiction in any
single action or proceeding. In any action or proceeding the defense of
which the Indemnifying Party assumes and in which an Indemnified Party is not
entitled to separate counsel pursuant to the immediately preceding sentence,
such Indemnified Party shall have the right to participate in such litigation
and to retain its own counsel at such Indemnified Party's expense. The
Indemnifying Party shall not, without the prior consent of each Indemnified
Party, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Indemnified Party
is an actual or potential party to such claim, action, suit or proceeding)
unless such settlement, compromise or consent includes an unconditional
release of each Indemnified Party from all liability arising out of such
claim, action, suit or proceeding.
SECTION 3.09 Information Systems.
Each Servicer shall maintain a data storage and retrieval system capable
of maintaining, updating and providing reports with respect to all relevant
information with respect to each Mortgage Loan that may be required to
satisfy the terms of this Agreement, including but not limited to all
information on the Mortgage Loan Schedule. Each Servicer shall update the
data on such system to reflect any information available thereto from time to
time.
SECTION 3.10 Successor to a Servicer.
(a) Within thirty (30) days or another period agreed to by the
Trustee in writing after the termination of any Servicer's responsibilities
and duties pursuant to Section 3.06 or Section 10.01 hereof, the Master
Servicer (or the Trustee, if the Master Servicer's responsibilities and
duties are being terminated) shall either (i) succeed (as of the date of such
succession) to and assume all of such Servicer's responsibilities, rights,
duties and obligations under this Agreement, or (ii) appoint a successor that
shall succeed (as of the date of such succession) to all rights and assume
all of the responsibilities and duties of such Servicer under this Agreement.
In connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
the fees of the successor Servicer with respect to the Mortgage Loans shall
not be higher than the fees of the predecessor Servicer. In the event that
any Servicer's duties and responsibilities under this Agreement are
terminated pursuant to the aforementioned Sections, such Servicer shall
discharge such duties and responsibilities during the period from the date it
acquires knowledge of such termination until the effective date thereof (if
such dates are not the same) with the same degree of diligence and prudence
that it is obligated to exercise under this Agreement, and shall take no
action whatsoever that might impair or prejudice the rights or financial
condition of its successor, any other Servicer or the Trustee. The
termination of a Servicer's responsibilities and duties under this Agreement
pursuant to the aforementioned Sections shall not become effective until a
successor shall be appointed pursuant to this Section 3.10 (or until the
Trustee or Master Servicer, as applicable, succeeds to and assumes all of
such Servicer's responsibilities under this Agreement) and shall in no event
relieve such Servicer of the covenants, representations and warranties made
herein and the remedies available to the Trustee under this Agreement. The
provisions of Section 3.05 hereof shall be applicable to each Servicer, to
the extent of claims against the Servicer arising out of the Servicer's
actions or failure to act prior to termination, notwithstanding any
termination of such Servicer's responsibilities and duties under this
Agreement or the termination of this Agreement. A successor Servicer shall
not, by reason of its appointment or assumption of the duties and
responsibilities of another Servicer, assume any of the liabilities of such
Servicer.
(b) Any successor appointed as provided herein shall execute,
acknowledge and deliver to each Servicer and to the Trustee, an instrument
accepting such appointment, whereupon such successor shall become fully
vested with all the rights, powers, duties, responsibilities and obligations
of the Servicer it is succeeding, with like effect as if originally named as
a party to this Agreement. Any resignation or termination of a Servicer
pursuant to Section 3.06 or Section 12.01 hereof shall not affect any claims
that the Trustee or any Servicer may have against the Trustee or another
Servicer, in any case arising prior to any such termination or resignation.
(c) Upon its termination or resignation, the terminated or
resigning Servicer shall immediately deliver to the successor the funds in
any account maintained by such Servicer pursuant to this Agreement (net of
all unpaid Servicing Fees payable to it, unreimbursed Advances advanced by it
and interest on such Advances at the Advance Rate), any Mortgage Loan
Documents in such Servicer's possession and related documents and statements
held by it hereunder and such Servicer shall account for all funds. Such
Servicer shall execute and deliver such instruments and do all such other
things as may reasonably be required to more fully and definitely vest and
confirm in the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of such Servicer. The successor shall promptly
make arrangements to reimburse such Servicer for amounts such Servicer
actually expended, unreimbursed Advances and amounts owed to such Servicer in
respect of unpaid Servicing Fees pursuant to this Agreement that would
otherwise have been recovered by such Servicer pursuant to this Agreement but
for the appointment of the successor servicer, net of any amounts owed by
such Servicer hereunder.
(d) Notwithstanding anything contained herein, a successor
Servicer shall be an established housing and home finance institution or
mortgage servicing institution (x) which has a net worth of not less than
$15,000,000, (y) as to which each Rating Agency has given written
confirmation stating that if the designated replacement were to serve as
successor Servicer, none of the then current rating or ratings of all
outstanding classes of the Certificates would be qualified, downgraded or
withdrawn as a result thereof and (z) except for any Primary Servicer, is
reasonably satisfactory to the Trustee based upon its financial and servicing
ability.
SECTION 3.11 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 seven
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 A2, Class A3, Class B, Class C, Class D, Class E,
Class F, Class G and Class NR Certificates and the Class X Components 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,
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 Primary Servicers, 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 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 a Servicer, if such tax
arises out of or results from a breach by such Servicer of any of its
obligations under this Agreement, (ii) 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 and (iii) otherwise, 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, the Special 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 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 December
26, 2028, which is the first Distribution Date following 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, any Primary 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, the Special 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.
(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 3.11 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.
ARTICLE IV
PRIMARY SERVICING
SECTION 4.01 The Primary Servicers.
(a) Each Primary Servicer, as independent contract servicer, shall
service and administer each Related Mortgage Loan (except as such obligations
may be assigned to the Special Servicer pursuant to Article VI hereof) on
behalf of and in the best interests of and for the benefit of the
Certificateholders in accordance with the terms of this Agreement and
Accepted Servicing Practices.
(b) Subject to Accepted Servicing Practices and the terms of this
Agreement and of each Mortgage Loan, each Primary Servicer shall have full
power and authority to do or cause to be done any and all things in
connection with such servicing and administration that it may deem, in its
best judgment, necessary or desirable, including, without limitation, to
execute and deliver, on behalf of the Trust Fund, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to any Related Mortgage Loan
which is not a Specially Serviced Mortgage Loan. No Primary Servicer may
modify, waive or amend the terms of any Mortgage Loan except with the express
written consent of the Master Servicer. Without limiting the generality of
the foregoing, each Primary Servicer shall, and is hereby authorized and
empowered with respect to each Related Mortgage Loan, to prepare, execute and
deliver, on behalf of the Trust Fund and at the Trust Fund's expense, any and
all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien on the related Mortgaged Property
and related collateral. Each Primary Servicer shall service and administer
each Related Mortgage Loan in accordance with applicable state and federal
law and shall provide to each related Mortgagor any information required to
be provided to it thereby. Subject to the foregoing, each Primary Servicer
shall service and administer each Related Mortgage Loan in accordance with
the related Mortgage Loan Documents, and shall enforce all provisions
designated in such Mortgage Loan Documents, including but not limited to the
establishment and administration of escrow accounts, reserve accounts,
impound accounts and operation and maintenance plans. Each Primary Servicer
may from time to time request that the Master Servicer obtain from the
Trustee any powers of attorney and other documents necessary or appropriate
to enable such Primary Servicer to carry out its servicing and administrative
duties hereunder. At such time the Master Servicer shall make a
determination as to the appropriateness of such request. If it shall approve
such request, the Master Servicer shall prepare for signature by the Trustee
and shall furnish to such Primary Servicer any such powers of attorney or
other documents necessary or appropriate to carry out such duties hereunder.
The Trustee shall not be responsible for any action taken or omitted to be
taken by any Servicer pursuant to the application of such powers of attorney
unless such action was taken or omitted to be taken at the express written
direction of, and in the manner specified by, the Trustee.
(c) Each Primary Servicer assumes, with respect to each Related
Mortgage Loan (except as otherwise set forth in Article VI), full
responsibility for the timely payment of all customary, reasonable and
necessary "out of pocket" costs and expenses (including reasonable attorneys'
fees and disbursements) incurred in connection with:
(i) any enforcement, administrative or judicial proceedings, or
any necessary legal work or advice specifically related to
servicing the Related Mortgage Loans, including but not
limited to, bankruptcies, condemnations, drug seizures,
foreclosures by subordinate or superior lienholders, legal
costs associated with preparing powers of attorney pursuant to
Section 4.01(b) above, and other legal actions incidental to
the servicing of the Related Mortgage Loans (provided that
such expenses are reasonable and that such Primary Servicer
specifies to the Master Servicer the Mortgage Loan(s) to which
such expenses relate);
(ii) all ground rents, taxes, assessments, water rates, sewer rates
and other charges, as applicable, that are or may become a
lien upon a related Mortgaged Property, and all fire, flood
and hazard insurance coverage (to the extent required in this
Agreement, including renewal payments); and
(iii) compliance with the servicing provisions applicable to such
Primary Servicer set forth herein.
With respect to any costs described in clauses (i) and (ii) above and to the
extent the related Mortgage Loan Documents do not provide for Escrow Payments
or such Primary Servicer determines that any such payments have not been made
by the related Mortgagor, such Primary Servicer shall effect timely payment
of all such expenses before they become delinquent if such Primary Servicer
shall have or should have had knowledge based on Accepted Servicing Practices
of such nonpayment by the Mortgagor before it becomes delinquent, and,
otherwise, such Primary Servicer shall effect immediate payment of all such
expenses which it has knowledge or should have knowledge based on Accepted
Servicing Practices have become delinquent. Each Primary Servicer shall make
Servicing Advances with respect to Related Mortgage Loans from its own funds
to effect such payments to the extent not deemed a Nonrecoverable Advance and
shall be reimbursed therefor in accordance with Section 4.03(a) and Section
4.06(c) hereof. With respect to any costs described in clause (iii) above,
each Primary Servicer shall be entitled to reimbursement of such costs as
Servicing Advances only to the extent expressly provided in this Agreement.
If a Primary Servicer determines with respect to any Related Mortgage Loan
that a Servicing 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.
Notwithstanding the foregoing, with respect to legal costs incurred in
connection with preparing powers of attorney pursuant to clause (i) above, a
Primary Servicer shall only be entitled to reimbursement for preparing a form
of a power of attorney for each state and not for legal costs incurred in
connection with the preparation of a power of attorney specifically for a
Related Mortgage Loan.
(d) Upon the occurrence of a Servicing Transfer Event with respect
to a Related Mortgage Loan or upon the resignation or termination of a
Primary Servicer, such Primary Servicer shall effect the timely and efficient
transfer of its servicing responsibilities to the successor Servicer.
(e) 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 a Mortgage Loan ceases to be a Specially Serviced
Mortgage Loan, the related Primary Servicer shall send a letter by first
class mail in the form of Exhibit L hereto notifying the related Mortgagor
that servicing has been transferred to such Primary Servicer.
SECTION 4.02 Primary Collection Account; Collection of Certain
Mortgage Loan Payments.
(a) Subject to Article VI, from the date hereof until the
principal and interest on the Related Mortgage Loans are paid in full, each
Primary Servicer shall proceed diligently to collect all payments called for
under the terms and provisions of the Related Mortgage Loans, and shall
follow such collection procedures as it would follow with respect to mortgage
loans comparable to the Related Mortgage Loans and held for other portfolios,
except that to the extent that such Primary Servicer does not service and
administer similar mortgage loans for others, then such Primary Servicer
shall follow such collection procedures as it would follow with respect to
its own portfolio, to the extent such procedures shall be consistent with
this Agreement and, in connection with collections under any applicable
insurance policy, the terms of such insurance policy required to be
maintained with respect thereto, and in accordance with Accepted Servicing
Practices.
(b) On or before the Delivery Date, each Primary Servicer shall
establish, and agrees to maintain for so long as it services Mortgage Loans
pursuant to this Agreement, a Primary Collection Account. Each Primary
Collection Account shall be an Eligible Account. Funds in each Primary
Collection Account shall be held by the related Primary Servicer for the
benefit of the Certificateholders and shall not be commingled with any other
moneys. Each Primary Servicer shall deposit, within one Business Day
following receipt, all collections with respect to the Related Mortgage Loans
into the related Primary Collection Account and the applicable subaccount of
the Escrow Account pursuant to this Section 4.02(b) and pursuant to Section
4.06(a), respectively. Each Primary Servicer shall, within five (5) Business
Days of the establishment thereof, notify the Trustee, the Master Servicer
and the Special Servicer in writing of the location and account number
thereof 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. Funds in any Primary Collection Account may be invested by, at the
risk of, and for the benefit of, the related Primary 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 related
Primary 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 related Primary Servicer. In addition, if the amounts in any
Primary Collection Account are invested for the benefit of the related
Primary Servicer, such Primary Servicer shall deposit on each Determination
Date into such account out of its own funds an amount representing any net
losses realized on Permitted Investments with respect to funds in such
account for such Collection Period.
(c) Each Primary Servicer shall deposit the following amounts into
the related Primary Collection Account:
(i) all payments on account of principal, including amounts
required to be deposited therein pursuant to
Section 4.06(c)(iii) hereof, and Principal Prepayments, on the
Related Mortgage Loans;
(ii) all payments on account of interest on the Related Mortgage
Loans (including amounts required to be deposited therein
pursuant to Section 4.06(c)(iii) hereof);
(iii) all Liquidation Proceeds, Excess Condemnation Proceeds and
Excess Insurance Proceeds with respect to the related
Mortgaged Properties;
(iv) out of such Primary Servicer's own funds, an amount
representing net losses realized on Permitted Investments with
respect to funds in such Primary Collection Account;
(v) any amounts representing Prepayment Premiums paid by the
related Mortgagors;
(vi) any amounts received from the Special Servicer pursuant to
Section 6.10(b);
(vii) any other amounts received from the related Mortgagor with
respect to the Related Mortgage Loans; and
(viii) any amounts received from the Special Servicer under Section
6.07 hereof, other than REO Proceeds;
but excluding (1) REO Proceeds, (2) amounts representing fees or late
---------
charge penalties or modification fees payable by Mortgagors with respect to
Related Mortgage Loans which are not Specially Serviced Mortgage Loans or REO
Mortgage Loans, which may be retained by such Primary Servicer as additional
servicing compensation hereunder, (3) any amounts received from a Mortgagor
to reimburse such Primary Servicer, pursuant to the terms of the Related
Mortgage Loan, for costs incurred in connection with the preparation of a
Property Inspection Report and (4) Escrow Payments.
(d) All funds deposited by a Primary Servicer in the related
Primary Collection Account shall be held for the benefit of the
Certificateholders until disbursed or withdrawn in accordance herewith.
Except as expressly permitted or required hereunder, a Primary Servicer shall
not sell, transfer or assign to any Person any interest (including any
security interest) in amounts credited or to be credited to the related
Primary Collection Account or take any action towards that end, and shall
maintain such amounts free of all liens, claims and encumbrances of any
nature.
(e) Each Primary Servicer shall, within one Business Day of
receipt or discovery of receipt, remit to the Special Servicer for deposit in
the related REO Account any REO Proceeds deposited into the Primary
Collection Account or any related Escrow Account.
SECTION 4.03 Permitted Withdrawals from the Primary Collection
Accounts.
(a) A Primary Servicer may make withdrawals from the Primary
Collection Accounts of amounts on deposit therein attributable to the Related
Mortgage Loans for (without duplication) the following purposes in the
following order of priority:
(i) to recoup any amount deposited in such Primary Collection
Account and not required to be deposited therein;
(ii) on each Primary Remittance Date, from amounts representing
payments by a Mortgagor of interest or Liquidation Proceeds,
Excess Insurance Proceeds and Excess Condemnation Proceeds
with respect to a Related Mortgage Loan other than an REO
Mortgage Loan, to pay to itself the Primary Servicing Fee;
(iii) to reimburse the Master Servicer, itself and the Special
Servicer, in that order, for previously unreimbursed P&I
Advances from collections on the Related Mortgage Loans,
together with interest at the Advance Rate pursuant to
Sections 5.05, 4.05, and 6.10, respectively, the right to
withdraw amounts pursuant to this subclause (iii) being
limited to amounts on deposit in the related Primary
Collection Account in respect of Liquidation Proceeds, Excess
Insurance Proceeds and Excess Condemnation Proceeds with
respect to the related Mortgaged Property, and any other
amounts received on the Related Mortgage Loan that represent
late recoveries of payments with respect to which such P&I
Advances were made;
(iv) to the extent not reimbursed from amounts on deposit in the
Escrow Account pursuant to Section 4.06(c)(v) hereof, to
reimburse the Master Servicer, itself and the Special Servicer
(to the extent there are no amounts available in the related
REO Accounts to reimburse the Special Servicer), in that
order, pursuant to Sections 5.01(c) and 5.05, 4.05 and 6.10,
respectively, for previously unreimbursed Servicing Advances
incurred in connection with a Related Mortgage Loan or related
Mortgaged Property (which amounts shall be accounted for in
accordance with the provisions of Section 4.10 hereof) or the
enforcement of the obligations of the Primary Servicers,
together with interest at the Advance Rate pursuant to
Sections 5.05, 4.05 and 6.10, respectively, the right to
withdraw amounts pursuant to this subclause (iv) being limited
to amounts on deposit in the related Primary Collection
Account in respect of Liquidation Proceeds, Excess Insurance
Proceeds and Excess Condemnation Proceeds with respect to such
Mortgaged Property, and any other amounts received on the
Related Mortgage Loan that represent late recoveries of
payments with respect to which such Servicing Advances were
made;
(v) to reimburse itself from amounts received from the Special
Servicer pursuant to Section 6.10(b) or the Master Servicer
pursuant to Section 5.03(a)(v) for any Advances, together with
interest at the Advance Rate pursuant to Section 4.05, with
respect to any Specially Serviced Mortgage Loan which remain
unreimbursed;
(vi) on each Primary Remittance Date, to reimburse the Master
Servicer, itself and the Special Servicer, in that order, for
accrued and unpaid interest at the Advance Rate on any
reimbursed P&I Advances made with respect to any Related
Mortgage Loan from any amounts on deposit in the related
Primary Collection Account, to the extent not otherwise offset
by default interest collected on the Related Mortgage Loan;
(vii) on each Primary Remittance Date, to reimburse the Master
Servicer, itself and the Special Servicer, in that order, from
any amounts on deposit in the related Primary Collection
Account for (A) any unreimbursed Nonrecoverable Advance for
which a Nonrecoverable Advance Certificate has been previously
delivered or (B) any unreimbursed Servicing Advance for an
expense the payment or reimbursement of which is not an
obligation of the related Mortgagor under the terms of the
related Mortgage Loan Documents, in each case, together with
interest at the Advance Rate pursuant to Sections 5.05, 4.05
and 6.10, respectively, made with respect to the Related
Mortgage Loans;
(viii) on each Primary Remittance Date, to reimburse the Special
Servicer, from amounts on deposit in the related Primary
Collection Account, for any unreimbursed Advances made with
respect to a Related Mortgage Loan which had been a Specially
Serviced Mortgage Loan but which ceased to be a Specially
Serviced Mortgage Loan pursuant to the terms of Section 6.12
hereof;
(ix) on each Primary Remittance Date, to pay itself any
reinvestment income on amounts on deposit in such Primary
Collection Account to which it is entitled pursuant to Section
4.02(b);
(x) on each Primary Remittance Date, to make remittances to the
Master Servicer pursuant to Section 4.04 hereof; and
(xi) to clear and terminate such Primary Collection Account upon
termination of this Agreement.
(b) Each Primary Servicer shall keep and maintain separate
accounting, on a Mortgage Loan-by-Mortgage Loan basis, for the purpose of
justifying any withdrawal from the related Primary Collection Account and
determining any shortfall or overpayment of any amounts due from or on behalf
of any related Mortgagor or related Mortgaged Property.
(c) Any remittances to the Master Servicer pursuant to clause (a)
above shall be made by a transfer of funds to the Master Collection Account.
SECTION 4.04 Remittances to the Master Servicer.
(a) On each Primary Remittance Date, each Primary Servicer shall
(1) withdraw from the related Primary Collection Account and remit to the
Master Servicer, by wire transfer of immediately available funds to the
Master Collection Account, all amounts on deposit in the related Primary
Collection Account as of the close of business on the Determination Date
prior to such Primary Remittance Date, minus:
-----
(i) any permitted charges against or withdrawals from the related
Primary Collection Account pursuant to clauses (i) through
(ix) of Section 4.03(a) hereof; and
(ii) any amounts on deposit in the related Primary Collection
Account representing a Monthly Payment due on a Due Date
following the Collection Period for such Determination Date
net of any reduction in the aggregate amount of P&I Advances
for such Determination Date pursuant to Section 4.05(a) (which
amounts shall be remitted pursuant to this Agreement on the
Primary Remittance Date immediately following the Collection
Period in which such Monthly Payment was due),
and (2) remit to the Master Servicer any P&I Advances required to be made on
or prior to such Primary Remittance Date pursuant to Section 4.05(a). If the
Master Servicer fails to receive by 2:00 p.m., Dallas time on the Primary
Remittance Date any or all of the amounts required by this clause (a), the
Master Servicer shall immediately notify the related Primary Servicer of such
failure.
(b) With respect to any Primary Servicer remittance received by
the Master Servicer after the Primary Remittance Date, such Primary Servicer
shall pay to the Master Servicer interest on such amount until paid at the
Advance Rate. Such interest shall be deposited into the Master Collection
Account by such Primary Servicer on the date such late payment is made and
shall cover the period commencing with the day following the Primary
Remittance Date and ending with the Business Day on which such payment is
made, both inclusive. The payment by such Primary Servicer of any such
interest shall not be deemed an extension of time for payment or a waiver of
any Event of Default.
SECTION 4.05 Primary 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
Related Mortgage Loan other than a Specially Serviced Mortgage Loan has not
been received by a Primary Servicer, such Primary Servicer shall remit to the
Master Servicer on the Primary Remittance Date for deposit into the 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 a Primary Servicer shall not be required to make a
Nonrecoverable Advance and, provided further, that a Primary Servicer shall
not be required to make more than two consecutive P&I Advances which have not
been reimbursed for any Mortgage Loan and a Primary Servicer shall not be
required to make a P&I Advance with respect to a Balloon Payment. For
purposes of the immediately preceding sentence, the Monthly Payment due on
the Maturity Date for a Balloon Mortgage Loan will be the amount that would
be due on such day based on the full amortization schedule used to calculate
the Monthly Payments thereon prior to the Maturity Date. If a Primary
Servicer determines that a P&I Advance is required, it shall on or prior to
such Primary Remittance Date deposit in the related Primary Collection
Account out of its own funds an amount equal to the P&I Advance; provided,
however, that the aggregate amount of such P&I Advances for any Determination
Date shall be reduced by any amounts being held for future remittance to the
Master Servicer pursuant to Section 4.04(a)(1)(ii). Any funds being held in
a Primary Collection Account for future distribution and so used shall be
replaced by the related Primary Servicer from its own funds by deposit in
such Primary Collection Account on or before any future Primary Remittance
Date to the extent that funds in such Primary Collection Account on such
Primary Remittance Date shall be less than payments to the Master Servicer
required to be made on such date. If a Primary Servicer determines with
respect to any Related 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.
(b) To the extent required by the terms of this Agreement, each
Primary Servicer shall make Servicing Advances with respect to Related
Mortgage Loans except pursuant to Section 5.01(c), Section 6.10 and Section
6.11 from time to time.
(c) Each Primary Servicer shall determine on each Business Day
whether amounts are available in the related Primary Collection Account or
Escrow Account to reimburse any Servicer for unreimbursed Advances made
pursuant to this Agreement. Subject to Section 6.02(f), the Primary Servicer
shall withdraw all amounts necessary to make such reimbursement to the extent
such withdrawals are permitted under Section 4.03(a) or Section 4.06(c)(v),
and shall reimburse the Master Servicer, itself and the Special Servicer, in
that order, on each Business Day.
(d) Each Primary Servicer shall be entitled to interest on any
Advance 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 such Primary Servicer is reimbursed for
such Advance pursuant to this Agreement.
SECTION 4.06 Escrow Accounts.
(a) On or before Delivery Date, each Primary Servicer shall
establish, and hereby agrees to maintain for the duration of this Agreement,
an Escrow Account. The Escrow Account shall be an Eligible Account. The
Escrow Account shall consist of one or more subaccounts, each of which shall
relate solely to collections with respect to the Related Mortgage Loans, and
funds in each such subaccount in the Escrow Account shall be held by such
Primary Servicer for the benefit of the Certificateholders and the related
Mortgagors and shall not be commingled with any other moneys. Each Primary
Servicer shall, within five (5) Business Days of the establishment thereof,
notify the Trustee and the Master Servicer in writing of the location and
account number of each subaccount in the Escrow Account 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. Each Primary
Servicer shall deposit into the appropriate subaccount of the related Escrow
Account any Escrow Payments that it receives, including, without limitation,
(i) any Payment Reserve, Repair and Remediation Reserve, Replacement Reserve
or Tenant Improvement and Leasing Commissions Reserve required to be
deposited therein on the Applicable Closing Date and as of each Due Date for
a Related Mortgage Loan and (ii) any related Insurance Proceeds or
Condemnation Proceeds. In addition, if the amounts in any subaccount of an
Escrow Account are invested for the benefit of the related Primary Servicer,
such Primary Servicer shall deposit into such subaccount out of its own funds
an amount representing net losses realized on Permitted Investments with
respect to funds in such subaccount.
(b) Subject to the terms of the Mortgage Loan Documents, and to
applicable Law, any funds in any subaccount of an Escrow Account may be
invested by (or, if required by such Mortgage Loan Documents or applicable
Law, shall be invested by), at the risk of, and for the benefit of, related
Primary Servicer in Permitted Investments and any such Permitted Investment
shall not be sold or disposed of prior to its maturity. If, however,
pursuant to the terms of the related Mortgage Loan Documents, or pursuant to
applicable Law, any funds in an Escrow Account are required to be invested
for the benefit of the related Mortgagor, the related Primary Servicer shall
so invest such funds.
(c) Withdrawals from any subaccount of an Escrow Account may be
made (to the extent amounts have been escrowed for such purpose and to the
extent permitted by the related Mortgage Loan Documents) only for the
following purposes in the following order of priority:
(i) to recoup any amount deposited in such subaccount and not
required to be deposited therein or to refund to the related
Mortgagor any sums determined to be overages;
(ii) to pay interest earned on such account, if any, to itself or
to the related Mortgagor as required by subsection (b) above;
(iii) from amounts on deposit in such subaccount representing the
Payment Reserve for a Mortgage Loan, to effect (by means of
deposit to related Primary Collection Account pursuant to
Section 4.02(c) hereof) the timely payment of principal or
interest on such Mortgage Loan;
(iv) to effect the timely payment of taxes, assessments, insurance
and other basic carrying costs in connection with the Related
Mortgage Loan;
(v) from amounts on deposit in such subaccount representing
Insurance Proceeds for a Mortgage Loan, to effect the
restoration or repair of the related Mortgaged Property or to
release 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;
(vi) from amounts on deposit in such subaccount representing
Condemnation Proceeds for a Mortgage Loan, to effect the
restoration or repair of the related Mortgaged Property or to
release 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;
(vii) without duplication of any amounts otherwise reimbursed
pursuant to Section 4.03(a) to the related Primary Servicer,
the Master Servicer or the Special Servicer, to reimburse such
Primary Servicer, the Master Servicer or the Special Servicer,
in that order, out of related collections on the related
Mortgage Loan for any Servicing Advances made by such Servicer
pursuant to this Agreement together with interest at the
Advance Rate pursuant to Sections 4.05(d), 5.05 and 6.10,
respectively;
(viii) upon satisfaction of the conditions relating thereto in the
related Mortgage Loan Documents, to disburse to the related
Mortgagor any amounts in the Replacement Reserve, the Repair
and Remediation Reserve or the Tenant Improvement and Leasing
Commissions Reserve required to be so disbursed; or
(ix) to clear and terminate such subaccount on payment in full of
the related Mortgage or upon termination of this Agreement.
(d) To the extent that interest earned on funds in an Escrow
Account is insufficient to pay interest on such funds to the related
Mortgagor to the extent required by applicable Law, the related Primary
Servicer shall, as part of its servicing duties under this Agreement, pay
such interest from its own funds as a Servicing Advance, and shall be
entitled to reimbursement therefor pursuant to Section 4.03(a) hereof;
provided, however, that such Primary Servicer shall not be required to make a
Nonrecoverable Advance.
(e) Each Primary Servicer shall maintain accurate records with
respect to each related Mortgaged Property reflecting the status of taxes,
assessments, insurance premiums and other similar items that are or may
become a lien thereon and the status of insurance premiums and ground rent,
if applicable, payable in respect thereof. Each Primary Servicer shall
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and shall effect timely payment thereof in accordance with
the provisions of Section 4.01(c) hereof, employing for such purpose amounts
in the related Escrow Account as allowed under the terms of the related
Mortgage Loan Documents or, if not paid from amounts on deposit in such
Escrow Account, by making a Servicing Advance pursuant to Section 4.01(c)
hereof. Each Primary Servicer shall make such Servicing Advances until a
Related Mortgage Loan becomes a Specially Serviced Mortgage Loan and shall be
entitled to reimbursement therefor pursuant to Section 4.03(a) or Section
4.06(c). Each Primary Servicer shall, if requested by the Master Servicer
based upon its reasonable evaluation of the performance by such Primary
Servicer of its obligations under this clause (e), hire one or more firms
approved by the Master Servicer (which approval shall not be unreasonably
withheld) engaged (i) in the monitoring of the status of real estate taxes
and (ii) the designation from time to time of special flood hazard areas with
respect to each Mortgaged Property.
SECTION 4.07 Maintenance of Insurance.
(a) Each Primary Servicer shall cause to be maintained for each
related Mortgaged Property all insurance required by the terms of the related
Mortgage Loan Documents; provided, however, that if the insurance in the
amount required above is not available at a commercially reasonable cost,
such Primary Servicer shall not be required to maintain a policy for
insurance in such amount if it shall have obtained the express written
consent of the Master Servicer. Subject to the preceding sentence, hazard
insurance shall be maintained in the amount set forth in the related Mortgage
Loan Documents but in any event in an amount at least equal to the
replacement cost of the improvements which are a part of such property. Such
insurance policies shall also provide coverage in amounts sufficient such
that the insurance carrier would not deem the Mortgagor to be a co-insurer
thereunder. All such policies shall provide for at least thirty days' prior
written notice to the related Primary Servicer of any cancellation, reduction
in the amount of, or material change in, the coverage provided thereunder.
If at any time the Mortgaged Property is in a federally designated special
flood hazard area, the related Primary Servicer shall cause the related
Mortgagor to maintain or will itself obtain flood insurance in respect
thereof to the extent available. Such flood insurance shall be in an amount
equal to the lesser of (x) the unpaid principal balance of the related
Mortgage Loan, (y) the maximum amount of such insurance required by the terms
of the related Mortgage Note or Mortgage and (z) the maximum amount of such
insurance that is available for the related Mortgaged Property under the
national flood insurance program (assuming that the area in which such
Mortgaged Property is located is participating in such program). Any cost
incurred in maintaining any insurance required pursuant to this subsection
(a) shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of the Mortgage Loan so permit
but such cost shall be deemed to be a Servicing Advance and shall be
reimbursed as provided in this Agreement.
(b) All of the hazard insurance policies required to be maintained
under subsection (a) of this Section shall contain a standard mortgagee
clause naming the related Primary Servicer (or Special Servicer with respect
to REO Mortgage Loans), as agent for the Trustee and its successors and
assigns as the Person to whom all payments made by the insurance carrier
shall be made. Each Primary Servicer (or the Special Servicer with respect
to REO Mortgage Loans) shall arrange for the application of all such
insurance proceeds (i) to the restoration or repair of the related Mortgaged
Property, (ii) to prepay in whole or in part the outstanding principal amount
of the related Mortgage Note or (iii) to be released to the related
Mortgagor, as the case may be, in all cases in accordance with the express
requirements of the applicable Mortgage Loan Documents. To the extent the
applicable Mortgage Loan Documents require the delivery of appraisals,
engineer's reports, architect's disbursement certificates or other documents
or instruments before any such insurance proceeds are applied, the related
Primary Servicer shall obtain and verify the same and any costs so incurred
shall be deemed to be a Servicing Advance and shall be reimbursed as provided
in this Agreement. If such insurance proceeds are to be applied to
restoration or repair of the related Mortgaged Property or are to be released
to the related Mortgagor, the related Primary Servicer shall deliver to the
Master Servicer prior to such application or release a certificate of a
Servicing Officer of such Primary Servicer in reasonable detail specifying
the purposes to which such proceeds are to be applied and the account or
Person to which they are to be transferred.
(c) With respect to any insurance required to be maintained
pursuant to this Section 4.07, each Primary Servicer shall remit to the
Special Servicer any unearned premiums with respect to premiums that were
advanced by the Special Servicer pursuant to Section 6.03(b). Amounts to be
paid to the Special Servicer pursuant to this clause (c) shall be made upon
receipt by the related Primary Servicer of the refund of such unearned
premium and of a certification by the Special Servicer of such amount of
unearned premium and of the amount of such unreimbursed Servicing Advance.
SECTION 4.08 Enforcement of "Due-on-Sale" Clauses; Assumption
Agreements.
(a) To the extent any Related Mortgage Loan contains an
enforceable "due-on-sale" or "due-on-encumbrance" clause, the Primary
Servicer shall enforce, and shall not waive, such clause. If a Primary
Servicer is unable to enforce any such "due-on-sale" clause or if no "due-on-
sale" clause is applicable, such Primary Servicer shall enter into an
assumption agreement with the Person to whom such property has been conveyed
or is proposed to be conveyed, pursuant to which such Person becomes liable
under the Mortgage Note and, to the extent permitted by applicable state Law
and the related Mortgage, the Mortgagor remains liable thereon. A Primary
Servicer is also authorized to enter into a substitution of liability
agreement with such Person, pursuant to which the original Mortgagor is
released from liability and such Person is substituted as the Mortgagor and
becomes liable under the Mortgage Note; provided, however, that such
substitute Mortgagor must satisfy the requirements set forth in the related
Mortgage Loan Documents or the underwriting requirements customarily imposed
by prudent commercial mortgage lenders as a condition to approval of a
borrower on a new mortgage loan substantially similar to such Related
Mortgage Loan.
(b) To the extent any Related Mortgage Loan contains a clause
granting a right of assumption to a qualified substitute Mortgagor upon the
sale, conveyance or transfer of the related Mortgaged Property, the related
Primary Servicer shall enter into an assumption agreement with such qualified
substitute Mortgagor, pursuant to which such substitute Mortgagor becomes
liable under the Mortgage Note. If any Person other than the Mortgagor has,
pursuant to the related Mortgage Loan Documents, undertaken to indemnify the
mortgagee and, in connection with an assumption of the type referred to in
the preceding sentence, the related Mortgage Loan Documents permit a
substitution of such third-party indemnitor by a qualified substitute
indemnitor, the related Primary Servicer shall enter into an assumption of
liability agreement with such qualified substitute indemnitor, pursuant to
which such substitute indemnitor becomes liable under the relevant
indemnification obligations. A Primary Servicer is also authorized to enter
into a substitution of liability agreement with such substitute Mortgagor,
pursuant to which the original Mortgagor is released from liability and such
substitute Mortgagor is substituted as the Mortgagor and becomes liable under
the Mortgage Note; provided, however, that such substitute Mortgagor must
satisfy the requirements set forth in the related Mortgage Loan Documents or
the underwriting requirements customarily imposed by prudent commercial
mortgage lenders as a condition to approval of a borrower on a new mortgage
loan substantially similar to such Related Mortgage Loan.
(c) The Primary Servicer shall retain any fee collected for
entering into an assumption or substitution of liability agreement.
(d) In connection with any assumption under this Section 4.08, no
material term of the Mortgage Note (including, but not limited to, the
Mortgage Interest Rate, the amount of the Monthly Payment, any interest rate
floor or cap applicable to the calculation of the Mortgage Interest Rate and
any other term affecting the amount or timing of payment on the Mortgage
Loan) may be changed. The Primary Servicer shall forward to the Custodian
the original substitution or assumption agreement and shall forward to the
Master Servicer and the Master Servicer shall then forward to the Trustee a
copy of such substitution or assumption agreement.
(e) Notwithstanding the foregoing or any other provision of this
Agreement, a Primary Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any conveyance
by a Mortgagor of a Mortgaged Property or any assumption of a Related
Mortgage Loan by operation of Law that such Primary Servicer in good faith
determines it may be restricted by Law from preventing. The Primary Servicer
shall deliver prompt written notice to the Master Servicer and the Master
Servicer shall then deliver prompt written notice to the Trustee of any such
determination or assumption.
SECTION 4.09 Review of Property Inspections, Operating Statements and
Rent Rolls.
(a) Each Primary Servicer shall inspect or cause to be inspected
each related Mortgaged Property and shall verify and deliver a copy of a
Property Inspection Report in the form of Exhibit M hereto to the Master
Servicer at such times and in such manner as are consistent with Accepted
Primary Servicing Practices; provided that (i) each
--------
Mortgaged Property securing a Related Mortgage Loan with an outstanding
principal balance in excess of $2,000,000 and each GMACCM Mortgage Loan shall
be inspected and a Property Inspection Report shall be delivered at least
once a year and (ii) each other Mortgaged Property securing a Related
Mortgage Loan shall be inspected and a Property Inspection Report shall be
delivered at least once every two years. The Primary Servicer shall promptly
report to the Master Servicer any violation of applicable laws, statutes,
regulations or ordinances and any waste or destruction of the Related
Mortgaged Property of which it has actual knowledge, and shall report any and
all actions taken by the Primary Servicer in response to such violation,
waste or destruction.
(b) The Primary Servicer shall, within ten (10) Business Days of
receipt, verify any operating statements and rent rolls prepared by a
Mortgagor of a Mortgaged Property in accordance with the terms of the Related
Mortgage Loan for compliance with any covenants contained in the related
Mortgage Loan Documents and shall deliver to the Master Servicer a copy of
the Operating Statements and Rent Rolls Report summarizing such operating
statements and rent rolls in the form of, and setting forth the information
referenced in, Exhibit N hereto, and, if requested by the Master Servicer, a
copy thereof in an electronic format reasonably acceptable thereto and
consistent with Accepted Servicing Practices.
(c) In lieu of delivering the reports referenced in clause (a) or
clause (b) above in the form specified therein, the Primary Servicer may
deliver such reports in such other form as may be reasonably acceptable to
the Master Servicer, provided that such form shall not adversely affect the
accuracy or scope of the information otherwise reported in the Detailed Loan
Indicative Data File.
SECTION 4.10 Reports to Master Servicer and Special Servicer.
(a) Each Primary Servicer shall prepare, or cause to be prepared,
and deliver to the Master Servicer and Special Servicer (with respect to
Specially Serviced Mortgage Loans), in an electronic format reasonably
acceptable to the Master Servicer and consistent with Accepted Servicing
Practices, not later than (i) the twelfth (12th) Business Day immediately
preceding each Distribution Date, a copy of a Remittance Report in the form
of Exhibit O hereto, and a copy of a Detailed Loan Indicative Data File in
the form of Exhibit P hereto and (ii) the eighth (8th) Business Day
immediately preceding each Distribution Date, a copy of an Advance/
Delinquency Report in the form of Exhibit Q hereto, which report shall
specify, if necessary, any amounts to be advanced on a Distribution Date by
the Special Servicer pursuant to Section 6.10. Each such report shall be in
respect of the related Collection Period on a Mortgage Loan-by-Mortgage Loan
basis to the extent applicable.
Notwithstanding the foregoing, the Primary Servicer shall not be
required to prepare the Remittance Report in the form of Exhibit O hereto or
the Advance/Delinquency Report in the form of Exhibit Q hereto to the extent
the information required to be reported therein is set forth in the Detailed
Loan Indicative Data File in the form of Exhibit P delivered not later than
the twelfth (12th) Business Day immediately preceding each Distribution Date
and subsequently delivered not later than the eighth (8th) Business Day
immediately preceding the related Distribution Date.
(b) On the eighth (8th) Business Day immediately preceding each
Distribution Date, each Primary Servicer shall prepare and deliver to the
Master Servicer and Special Servicer (with respect to Specially Serviced
Mortgage Loans) a copy of the Primary Collection Account Report in the form
of Exhibit R-2 hereto and an Escrow Account Report in the form of Exhibit R-3
hereto and validate and deliver to the Master Servicer and Special Servicer
each bank statement related to the related Primary Collection Account and the
related Escrow Account for the period from the day after the second preceding
Primary Remittance Date through the immediately preceding Primary Remittance
Date.
(c) If any Primary Servicer receives notice from the Master
Servicer of any reporting inconsistencies pursuant to Section 5.06 hereof,
such Primary Servicer shall initiate discussions on the following Business
Day with the Master Servicer to reconcile their records.
(d) Within sixty (60) days following the end of each calendar
year, each Primary Servicer shall prepare, or cause to be prepared, and
deliver to the Master Servicer (x) a report, containing (a) the portion of
the amount remitted by it to the Master Servicer from the related Primary
Collection Account pursuant to Section 4.04 allocable to principal, included
therein and (b) the portion of the amount remitted by it to the Master
Servicer from the related Primary Collection Account pursuant to Section 4.04
allocable to interest, for such calendar year and signed by a Servicing
Officer, and (y) such other customary information as is necessary for the
Certificateholders to prepare their federal, state and local income tax
returns. Such obligation of the Primary Servicers 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.
(e) Each Primary Servicer shall prepare and distribute all
information statements relating to payments on the Related Mortgage Loans in
accordance with all applicable federal and state laws and regulations. Upon
prior written request of the Master Servicer, each Primary Servicer shall
prepare such other reports as may be reasonably requested in writing by the
Master Servicer. Each Primary Servicer shall be entitled to charge a
reasonable fee reflecting the internal and external costs to such Primary
Servicer of preparing such other reports and such fee shall be reimbursable
to such Primary Servicer as a Servicing Advance and shall be reimbursed as
provided in this Agreement.
(f) Each Primary Servicer shall provide the Master Servicer with
any reasonable information needed by the Master Servicer which is consistent
with Accepted Servicing Practices with respect to the Related Mortgage Loans
in order to allow the Master Servicer to comply with its obligations under
Article V and shall provide the Special Servicer with any reasonable
information needed by the Special Servicer which is consistent with Accepted
Special Servicing Practices with respect to Specially Serviced Mortgage Loans
and REO Mortgage Loans in order to allow the Special Servicer to comply with
its obligations hereunder pursuant to Article VI.
(g) Each Primary Servicer shall proceed diligently to collect all
reports and other information required to be prepared and delivered by the
related Mortgagors pursuant to the terms of the related Mortgage Loan
Documents (including, but not limited to, rent rolls) and shall forward
copies of such information to the Master Servicer periodically as such
information from Mortgagor is received or as otherwise directed by the Master
Servicer.
SECTION 4.11 Confirmation of Balloon Payment.
The Primary Servicer shall send a letter by first class mail to each
related Mortgagor on a Balloon Mortgage Loan at least six (6) months and at
least three (3) months prior to the related Maturity Date reminding such
Mortgagor of such Maturity Date and requesting that not later than sixty (60)
days prior to such Maturity Date such Mortgagor confirm in writing that the
payment due on such Maturity Date will be made on such date and describe in
reasonable detail any arrangements made or to be made with regard to the
payment of such Balloon Payment. Information regarding such Mortgagor
confirmation and such Balloon Payment shall be delivered by the Primary
Servicer to the Master Servicer on the twelfth (12th) Business Day
immediately preceding each Distribution Date in a form reasonably acceptable
to the Master Servicer.
SECTION 4.12 Primary Servicer Compensation.
Each Primary Servicer shall be entitled to a fee (the "Primary
-------
Servicing Fee"), with respect to each Related Mortgage Loan, other than an
- -------------
REO Mortgage Loan, that shall be equal to one-twelfth of the product of (a)
the Primary Servicing Fee Rate and (b) the Scheduled Principal Balance of
such Related Mortgage Loan as of the Due Date in the preceding calendar month
or, in the case of the initial Primary Remittance Date for such Related
Mortgage Loan, the outstanding principal balance of such Related Mortgage
Loan as of the Cut-off Date. Notwithstanding the foregoing, in lieu of the
Primary Servicing Fee set forth above, the Primary Servicer for the Combined
Servicing Mortgage Loans and the Master Servicer shall be collectively
entitled to a Primary Servicing Fee calculated as described above but based
on a Primary Servicing Fee Rate equal to 0.04% per annum. The Primary
Servicing Fee is payable to the extent permitted by Section 4.03(ii) hereof.
A Primary Servicer shall also be entitled to receive as part of its servicing
compensation net reinvestment income pursuant to Section 4.02(b) and certain
fees described in clause (2) of Section 4.02(c) and as otherwise permitted
under this Agreement.
ARTICLE V
MASTER SERVICING
SECTION 5.01 The Master Servicer.
(a) 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 Crown Participation Agreement, the terms of the respective
Mortgage Loans and Accepted Servicing Practices (or Accepted Special
Servicing Practices, in the case of Specially Serviced Mortgage Loans).
(b) Subject to Accepted Servicing Practices and Accepted Special
Servicing Practices, as applicable, and the terms of this Agreement and of
the Mortgage Loans, the Master Servicer shall have full power and authority,
acting through the Primary Servicers and the Special Servicer pursuant to
this Agreement, to do or cause to be done any and all things in connection
with such servicing and administration that it may deem, in its best
judgment, necessary or desirable, including, without limitation, to execute
and deliver, on behalf of the Trustee, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to a Mortgage Loan. The
Master Servicer shall perform its obligations hereunder in accordance with
applicable state and federal Law. Notwithstanding the foregoing, the Master
Servicer shall not modify, waive or amend any term of any Mortgage Loan (or
consent to any such modification, waiver or amendment) if such modification,
waiver or amendment would affect the related Monthly Payment, the related
Maturity Date, the related Mortgage Interest Rate or the related amortization
schedule. To the extent any Mortgage Loan contains an enforceable "due-on-
encumbrance" clause, the Master Servicer shall enforce, and shall not waive,
such clause.
(c) The Master Servicer shall, for the benefit of the
Certificateholders, monitor the actions of the Primary Servicers and Special
Servicer. If the Master Servicer determines that any Servicer is in breach of
any term of this Agreement, it shall notify the Trustee and pursue any
appropriate remedies. Any expenses incurred by the Master Servicer in
connection with any actions taken hereunder shall be deemed a Servicing
Advance and the Master Servicer shall be entitled to reimbursement therefor
pursuant to Section 4.03(a).
(d) In the event of termination or resignation pursuant to the
terms hereof of a Primary Servicer or Special Servicer, unless a successor
has been appointed pursuant to the terms of this Agreement, all servicing
obligations of such Servicer shall automatically be assumed by the Master
Servicer without any act or deed on the part of such Servicer, the Trustee or
the Master Servicer, and the Master Servicer either shall assume the rights
and obligations of the such Servicer hereunder or shall appoint a successor
Primary Servicer or Special Servicer pursuant to Section 3.10.
(e) On the Delivery Date, the Master Servicer shall provide each
Primary Servicer and the Special Servicer with a schedule of each
Determination Date, Primary Remittance Date and Distribution Date for the
current calendar year and with a list of the days on which banking and
savings and loan institutions in the states of Massachusetts, New York,
Pennsylvania, Georgia and Texas are authorized or obligated by law to be
closed during the current calendar year. Not later than the first Business
Day in December of each year, commencing in 1997, the Master Servicer shall
provide each Primary Servicer and the Special Servicer with a schedule of
each Determination Date, Primary Remittance Date and Distribution Date for
the following calendar year and with a list of the days on which banking and
savings and loan institutions in the states of Massachusetts, New York,
Pennsylvania, Georgia and Texas are authorized or obligated by law to be
closed during the following calendar year.
SECTION 5.02 Master Collection Account.
(a) On or before the Delivery Date and as necessary thereafter,
the Master Servicer shall establish, and hereby agrees to maintain for the
duration of this Agreement, the Master Collection Account. The Master
Collection Account shall be an Eligible Account. The Master Collection
Account shall relate solely to collections with respect to the Mortgage
Loans, and funds in the Master Collection Account shall be held by the Master
Servicer for the benefit of the Certificateholders and shall not be
commingled with any other moneys. The Master Servicer shall, within five (5)
Business Days of the establishment thereof, notify the Trustee, each Primary
Servicer and the Special Servicer in writing of the location and account
number of the Master Collection Account and shall give the Trustee, each
Primary Servicer and the Special Servicer written notice of any change of the
location or account number of the Master Collection Account on or prior to
the date of such change.
(b) Funds in the Master Collection Account may be invested by, at
the risk of, and for the benefit of, the Master Servicer in Permitted
Investments and shall not be sold or disposed of prior to maturity. All such
Permitted Investments shall be registered in the name of the Master 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 Master
Servicer. In addition, if the amounts in the Master Collection Account are
invested for the benefit of the Master Servicer, the Master Servicer shall
deposit into such account out of its own funds an amount representing any net
losses realized on Permitted Investments with respect to funds in such
account, no later than the first Distribution Date after the occurrence of
such loss.
(c) The Master Servicer shall deposit into the Master Collection
Account upon receipt, any amounts received from a Primary Servicer or the
Special Servicer pursuant to Section 4.04 and Section 6.08. If the Master
Servicer fails to receive by 2:00 p.m., Dallas time on the Primary Remittance
Date any or all of the amounts required pursuant to Section 4.04 or Section
6.08, the Master Servicer shall immediately notify the related Primary
Servicer or the Special Servicer, as applicable, of such failure.
(d) All funds deposited by the Master Servicer in the Master
Collection Account shall be held for the benefit of the Certificateholders
until disbursed or withdrawn in accordance herewith. Except as expressly
permitted or required hereunder, the Master Servicer shall not sell, transfer
or assign to any Person any interest (including any security interest) in
amounts credited or to be credited to the Master Collection Account or take
any action towards that end, and shall maintain such amounts free of all
liens, claims and encumbrances of any nature.
SECTION 5.03 Permitted Withdrawals from the Master Collection
Accounts.
(a) The Master Servicer may make withdrawals from the Master
Collection Account of amounts on deposit therein attributable to the Mortgage
Loans for (without duplication) the following purposes in the following order
of priority:
(i) to recoup any amount deposited in such subaccount and not
required to be deposited therein;
(ii) on each Master Remittance Date, from amounts on deposit in the
Master Collection Account representing payments by a Mortgagor
of interest or Liquidation Proceeds, Excess Insurance
Proceeds, Excess Condemnation Proceeds and REO Proceeds with
respect to a Mortgage Loan, to pay to itself the Master
Servicing Fee and to pay the Special Servicer the Special
Servicing Fee, if applicable;
(iii) to the extent not reimbursed from amounts on deposit in the
related Primary Collection Account pursuant to Section
4.03(a)(iii) hereof, to reimburse itself, the related Primary
Servicer and the Special Servicer, in that order, for
previously unreimbursed P&I Advances from any amounts on
deposit in such account pursuant to Sections 5.05, 4.05 and
6.10, respectively, together with interest at the Advance Rate
pursuant to such Sections 5.05, 4.05 and 6.10, respectively,
the right to withdraw amounts pursuant to this subclause (iii)
being limited to amounts on deposit in such Master Collection
Account in respect of Liquidation Proceeds, Excess Insurance
Proceeds, REO Proceeds and Excess Condemnation Proceeds with
respect to such Mortgaged Property, and any other amounts
received on the related Mortgage Loan that represent late re-
coveries of payments with respect to which such P&I Advances
were made;
(iv) to the extent not reimbursed from amounts on deposit in the
Primary Collection Account pursuant to Section 4.03(a)(iv)
hereof, the Escrow Account pursuant to Section 4.06(c)(v)
hereof or the REO Account pursuant to Section 6.10 hereof, to
reimburse itself, the related Primary Servicer and the Special
Servicer, in that order, pursuant to Sections 5.05, 4.05 and
6.10, respectively, for previously unreimbursed Servicing
Advances incurred in connection with a Mortgaged Property
(which amounts shall be accounted for to Trustee in accordance
with the provisions of Section 4.10(a) hereof), together with
interest at the Advance Rate pursuant to such Sections 5.05,
4.05 and 6.10, respectively, the right to withdraw amounts
pursuant to this subclause (iv) being limited to amounts on
deposit in the Master Collection Account in respect of
Liquidation Proceeds, Excess Insurance Proceeds, REO Proceeds
or Excess Condemnation Proceeds with respect to such Mortgaged
Property, and any other amounts received on the related
Mortgage Loan that represent late recoveries of payments with
respect to which such Servicing Advances were made;
(v) on each Master Remittance Date, to reimburse the related
Primary Servicer from amounts on deposit in such account for
any Advances, together with interest at the Advance Rate
pursuant to Sections 5.05, 4.05 and 6.10, respectively, made
by such Primary Servicer with respect to Specially Serviced
Mortgage Loans related to such account which the Special
Servicer has determined to be Nonrecoverable Advances and
remain unreimbursed more than thirty (30) days following the
related Servicing Transfer Date;
(vi) on each Master Remittance Date, to reimburse itself, the
related Primary Servicer and the Special Servicer, in that
order, for accrued and unpaid interest at the Advance Rate on
any reimbursed P&I Advances made with respect to any Mortgage
Loan from any amounts on deposit in the Master Collection
Account, to the extent not otherwise offset by default
interest collected on the related Mortgage Loan;
(vii) on each Master Remittance Date, to reimburse itself, the
related Primary Servicer or the Special Servicer, in that
order, from any amounts on deposit in such account for (A) any
unreimbursed Nonrecoverable Advances for which a
Nonrecoverable Advance Certificate has been previously
delivered or (B) any unreimbursed Servicing Advance for an
expense the payment or reimbursement of which is not an
obligation of the related Mortgagors under the terms of the
related Mortgage Loan Documents, in each case, together with
interest at the Advance Rate pursuant to Sections 5.05, 4.05
and 6.10, respectively, made with respect to Mortgage Loans;
(viii) on each Master Remittance Date, to reimburse the Special
Servicer, from amounts on deposit in the Master Collection
Account, for any unreimbursed Advances made with respect to a
Mortgage Loan which had been a Specially Serviced Mortgage
Loan but which ceased to be a Specially Serviced Mortgage Loan
pursuant to the terms of Section 6.12 hereof;
(ix) on each Master Remittance Date, to pay itself any reinvestment
income on deposit in such account to which it is entitled
pursuant to Section 5.02(b);
(x) on each Master Remittance Date, to make remittances to the
Trustee pursuant to Section 5.04 hereof; and
(xi) to clear and terminate the Master Collection Account upon
termination of this Agreement.
(b) The Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan-by-Mortgage Loan basis, for the purpose of
justifying any withdrawal from the Master Collection Account and determining
any shortfall or overpayment of any amounts due from or on behalf of any
Mortgagor or Mortgaged Property.
(c) Any remittances to a Primary Servicer pursuant to clause (a)
above shall be made by a transfer of funds to the related Primary Collection
Account.
SECTION 5.04 Remittances to the Trustee.
On each Master Remittance Date, the Master Servicer shall (1) withdraw
from the Master Collection Account and remit to the Trustee, by wire transfer
of immediately available funds, all amounts on deposit in such account as of
such Master Remittance Date, minus any permitted
-----
charges against or withdrawals from the Master Collection Account pursuant to
clauses (i) through (ix) of Section 5.03 hereof and (2) remit to the Trustee
any P&I Advances required to be made on or prior to such Master Remittance
Date pursuant to Section 5.05(b).
SECTION 5.05 Master Servicer Advances.
(a) Upon receipt of notice from any other Servicer or otherwise of
a failure on the part of any other Servicer to make an Advance, the Master
Servicer shall determine whether or not such Advance is a Nonrecoverable
Advance.
(b) If a P&I Advance is not made by a Primary Servicer or the
Special Servicer with respect to any Mortgage Loan by the Business Day prior
to the Master Remittance Date and the Master Servicer does not determine that
such P&I Advance is a Nonrecoverable Advance, the Master Servicer shall make
such P&I Advance on such Master Remittance Date. If a Servicing Advance is
not made by a Primary Servicer or the Special Servicer, as applicable, with
respect to any Mortgage Loan and the Master Servicer does not determine that
such Servicing Advance is a Nonrecoverable Advance, the Master Servicer shall
make any Servicing Advance it determines should be made based on Accepted
Servicing Practices or Accepted Special Servicing Practices, as applicable,
within three days of determining that such Advance should be made. The
Master Servicer shall reimburse itself for any unreimbursed Advances from the
Master Collection Account pursuant to Section 5.03 and from the related
Primary Collection Account, Escrow Account or REO Account pursuant to Section
4.03, Section 4.06(c) or Section 6.10.
(c) The Master Servicer shall be entitled to interest on any
Advance 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 Master Servicer reimburses itself for
such Advance and shall be reimbursed as provided in this Agreement.
SECTION 5.06 Validation or Verification of Reports and Payment
Amounts.
(a) The Master Servicer shall, on the Business Day following each
date that a Remittance Report and Advance/Delinquency Report is due pursuant
to Section 4.10, validate that the information presented in such reports is
consistent with the information on its data storage and retrieval system and
confirm that its records reflect accurately and completely all relevant
information as of the close of business on such Business Day. In addition,
the Master Servicer shall, on the Business Day following the date that a
Specially Serviced Mortgage Loan and REO Status Report is due pursuant to
Section 6.09(b) verify that the information presented in such report is
consistent with the information on its data storage and retrieval system and
confirm that its records reflect accurately and completely all relevant
information as of the close of business on such Business Day. Within three
(3) Business Days prior to the Primary Remittance Date, the Master Servicer
shall notify each other Servicer of any inconsistencies found in such report.
(b) The Master Servicer shall, on the Business Day following each
Primary Remittance Date, validate that all transfers of funds into the Master
Collection Account are consistent with the information on its data storage
and retrieval system and confirm that its records reflect accurately and
completely all relevant information as of the close of business on such
Business Day for each Mortgage Loan subject to this Agreement. Within one
(1) Business Day of the Primary Remittance Date, the Master Servicer shall
report to each other Servicer any discrepancies between any amounts remitted
and the information in the Master Servicer's records.
(c) The Master Servicer shall, on the Business Day following
receipt of a Primary Collection Account Report, Escrow Account Report or REO
Account Report pursuant to Section 4.10(b) or Section 6.09(b) and the related
bank statements, verify that the information is presented in such report is
consistent with the bank statements forwarded by each other Servicer and is
consistent with the information on its data storage and retrieval system and
confirm that its records reflect accurately and completely all relevant
information as of the close of such Business Day. Within one (1) Business
Day of such verification, the Master Servicer shall report to each other
Servicer any discrepancies between any such report and the information
presented in the bank statements and the Master Servicer's records.
SECTION 5.07 Reports on Master Collection Account; Reports Updating
Mortgage Loan Information.
(a) On the fourth (4th) Business Day prior to each Distribution
Date, the Master Servicer shall (i) verify and forward to the Trustee each
Primary Collection Account Report, Escrow Account Report and REO Account
Report prepared pursuant to Section 4.10(b) or Section 6.09(b) and (ii)
prepare and deliver to the Trustee a Master Collection Account Report in the
form of Exhibit R-1 showing for the period from the day after the second
preceding Master Remittance Date through the immediately preceding Master
Remittance Date the aggregate deposits into and withdrawals from the related
fund or account in accordance with this Agreement, including, without
limitation, an accounting of all income and losses realized on any Permitted
Investments of funds therein.
(b) Within sixty (60) days following the end of each calendar
year, the Master Servicer shall prepare, or cause to be prepared, verify and
deliver to the Trustee also on an aggregate basis as described in clause (a)
above (x) a statement, containing the information set forth in Sections
4.10(d) and 6.09(c) for such calendar year and signed by a Servicing Officer,
and (y) such other customary information as the Master Servicer deems
necessary or desirable for the Certificateholders to prepare their federal,
state and local income tax returns. Such obligation of the Master Servicer
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Master Servicer pursuant to
any requirements of the Code.
(c) Upon prior written request of the Trustee or the Depositor,
the Master Servicer shall prepare such other reports as may be reasonably
requested in writing by the Trustee or the Depositor. The Master Servicer
shall be entitled to charge a reasonable fee reflecting the internal and
external costs to the Master Servicer of preparing such other reports and
such fee shall be reimbursable to the Master Servicer as a Servicing Advance
and shall be reimbursed pursuant to Section 5.03(a).
(d) At the request of the Trustee or the Depositor, the Master
Servicer shall, from time to time, calculate and report to the Trustee or the
Depositor on an aggregate basis as described in clause (a) above and as of
the time specified by the Trustee or the Depositor, (x) the weighted average
or totals of any of the rates or amounts set forth in the Mortgage Loan
Schedule attached in Schedule I hereto and (y) the aggregate Scheduled
Principal Balance of the related Mortgage Loans.
SECTION 5.08 Master Servicer Compensation.
(a) The Master Servicer shall be entitled to a fee (the "Master
------
Servicing Fee"), with respect to each Mortgage Loan, that shall, for a
- -------------
period of each full month, be equal to one-twelfth of the product of (a) the
Master Servicing Fee Rate and (b) the Scheduled Principal Balance of such
Mortgage Loan as of the Due Date in the preceding calendar month or, in the
case of the initial Master Remittance Date for such Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date.
Notwithstanding the foregoing, the Master Servicer shall not be entitled to a
Master Servicing Fee with respect to the Combined Servicing Mortgage Loans,
but solely to the Primary Servicing Fee described in the second sentence of
Section 4.12. The Master Servicing Fee is payable solely from the interest
portion of the Monthly Payment on the related Mortgage Loan plus Liquidation
Proceeds, Excess Insurance Proceeds, Excess Condemnation Proceeds or REO
Proceeds with respect to such Mortgage Loan, to the extent permitted by
Section 5.03 hereof. The Master Servicer shall also be entitled to receive
as part of its servicing compensation reinvestment income pursuant to Section
5.02(b).
(b) No transfer, sale, pledge or other disposition of the Master
Servicer's right to receive all or any portion of the fees it is entitled to
receive for services under this Agreement shall be made, and any such
attempted transfer, sale, pledge or other disposition shall be void, unless
such transfer is made to a successor servicer in connection with the
assumption by such successor servicer of the duties hereunder pursuant to
Section 3.10 and all (and not a portion) of the Master Servicing Fees are
transferred to such successor servicer.
SECTION 5.09 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 5.10 Adjustment of Master Servicer's Compensation.
Notwithstanding anything set forth in this 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).
SECTION 5.11 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.
SECTION 5.12 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 related 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 related 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 such Primary Servicer has failed to
perform its obligations under this Agreement.
SECTION 5.13 Experts.
To the extent the Master Servicer, in connection with performing its
obligations under Section 3.02 or Section 5.12, 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 5.14 Dissemination of Information.
The Master Servicer may disseminate the information provided under
Section 7.03(a).
SECTION 5.15 Mandatory Resignation of Master Servicer.
The parties hereto agree that the same entity which acts as Primary
Servicer for the Combined Servicing Mortgage Loans shall at all times also
act as Master Servicer hereunder. Therefore, upon the removal or resignation
of the Primary Servicer for the Combined Servicing Mortgage Loans and the
appointment of a successor thereto, the Master Servicer shall immediately
resign and shall be succeeded by such successor Primary Servicer for the
Combined Servicing Mortgage Loans. In addition, upon the removal or
resignation of the Master Servicer, and the appointment of a successor
thereto, the Primary Servicer for the Combined Servicing Mortgage Loans shall
immediately resign and shall be succeeded by such successor Master Servicer.
Any such successor Servicer shall be appointed pursuant to Section 3.10.
ARTICLE VI
SPECIAL SERVICING
SECTION 6.01 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 Certificateholders in accordance
with this Agreement, the Crown Participation Agreement and Accepted Special
Servicing Practices. In the event that a Mortgage Loan becomes a Specially
Serviced Mortgage Loan, subject to the provisions contained in this Article
VI, the Primary Servicer shall continue to collect all Monthly Payments
called for under the terms and provisions of the Mortgage Loan in accordance
with Section 4.02, except as otherwise directed by the Special Servicer in
writing, but the Special Servicer shall make any Advances pursuant to Section
6.10.
SECTION 6.02 Transfer to Special Servicing.
(a) The related Primary Servicer shall notify the Trustee, the
Depositor, the Master Servicer and the Special Servicer as promptly as
practicable by telephone and in an electronic format reasonably acceptable to
the Master Servicer after it becomes aware of (i) any facts or circumstances
that might result in any Related Mortgage Loan becoming a Specially Serviced
Mortgage Loan or (ii) the occurrence of a Servicing Transfer Event. If
applicable, such notification shall include a discussion of all appropriate
courses of action that might be employed to prevent the Mortgage Loan in
question from becoming a Specially Serviced Mortgage Loan and shall, to the
extent applicable, set forth the information in the form of Exhibit S hereto.
The related Primary Servicer shall provide to the Trustee, the Depositor, the
Master Servicer and the Special Servicer as promptly as practicable after
request any additional information reasonably requested thereby with respect
to such Related Mortgage Loan.
(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 the occurrence of a Servicing Transfer Event, the related
Primary Servicer shall send a letter by first class mail in the form of
Exhibit T hereto (with a copy to the Special Servicer) notifying the related
Mortgagor that the related Mortgage Loan has become a Specially Serviced
Mortgage Loan and instructing such Mortgagor to direct all future notices and
communications to the Special Servicer but to continue making Monthly
Payments to the related Primary Servicer unless otherwise directed by the
Special Servicer in writing.
(c) Not later than five (5) Business Days after the occurrence of
a Servicing Transfer Event, the related Primary Servicer shall provide the
Special 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 each Related Mortgage Loan with
respect to which notice is required to be delivered pursuant to clause (a)
above. The related Primary Servicer and the Special Servicer shall take all
other actions necessary or appropriate to effect a transfer of servicing
pursuant to this Section 6.02 or Section 6.12, including but not limited to
the preparation, execution and delivery of any and all necessary or
appropriate documents and other instruments, and will cooperate fully with
each other and the Master Servicer in effecting such transfer as promptly as
possible. Servicing of a Mortgage Loan shall be automatically transferred to
the Special Servicer on the Servicing Transfer Date.
(d) Following the related Servicing Transfer Date, the related
Primary Servicer shall not have any further dealings or communications with
the related Mortgagor except as administrator of the related Primary
Collection Account and Escrow Account. The related Primary Servicer shall
maintain up-to-date information on each Related Mortgage Loan which becomes a
Specially Serviced Mortgage Loan in order to properly administer the related
Primary Collection Account and Escrow Account, to enable it to resume all
servicing obligations with respect to a Mortgage Loan which ceases to be a
Specially Serviced Mortgage Loan as promptly as possible pursuant to Section
6.12 and to provide any reports required under Article IV. The Special
Servicer shall promptly provide to the related Primary Servicer all
information available to the Special Servicer and not available to such
Primary Servicer necessary to maintain such up-to-date information.
(e) Not later than two (2) Business Days after the Servicing
Transfer Date, the Special Servicer shall send a letter by first class mail
in the form of Exhibit U hereto notifying the related Mortgagor that
servicing has been transferred to the Special Servicer.
(f) Notwithstanding anything set forth herein, upon the occurrence
of a Servicing Transfer Event with respect to any Related Mortgage Loan, the
related Primary Servicer shall not withdraw any amounts on deposit in the
related Primary Collection Account in respect of such Mortgage Loan (except
pursuant to clauses (i), (ii), (vi), (vii), (ix) and (x) of Section 4.03(a))
until two (2) Business Days after giving written notice to the Special
Servicer; provided that the Special Servicer may direct such Primary Servicer
to postpone any withdrawals until the next Distribution Date.
SECTION 6.03 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 6.03(c) and 6.14 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 one year extensions 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 11.14(f). The Special
Servicer 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 VI, 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 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 with respect to any REO
Properties and, to the extent it receives a certificate from a Primary
Servicer that any amount is due in connection with maintaining any Insurance
Policy pursuant to 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 6.03 and Section 4.07 shall be maintained
with Qualified Insurers.
Except for a duty or obligation of a Primary Servicer not assumed
by the Special Servicer pursuant to Section 6.02(d), such Primary Servicer
shall not have any such duty or obligation with respect to the related
Mortgage Loan unless and until such Mortgage Loan ceases to be a Specially
Serviced Mortgage Loan.
(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
Depositor, 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 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 hereof 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 6.03(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 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 6.03(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 11.04) 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.
(f) The Special Servicer shall not acquire any personal property
on behalf of the Trust Fund pursuant to this 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 A2, Class A3, Class B, Class C, Class D, Class E or Class X
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.
SECTION 6.04 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
Special 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.
(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 6.05 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 6.01(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 6.01 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 6.01, 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 6.01, that acceptance of such bid would be in the best interests of
the Certificateholders (for example, if the 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 6.01,
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 Master Collection Account.
SECTION 6.06 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. Funds in such REO
Account shall not be commingled with any other moneys. The Special Servicer
shall, within five (5) Business Days of the establishment thereof, notify the
Master Servicer, the related 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 6.07 Remittances to Primary Servicer.
Any collections received in respect of a Related Mortgage Loan, other
than REO Proceeds, shall be remitted to the related Primary Servicer within
one Business Day of receipt for deposit into the related Primary Collection
Account established and maintained by such Primary Servicer for the duration
of this Agreement pursuant to Section 4.02.
SECTION 6.08 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 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.
SECTION 6.09 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 related
Primary 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 in the form of Exhibit V hereto, 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
related Primary 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 of Exhibit
Z hereto and a report of any other funds or accounts established and
maintained by the Special Servicer under this 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. For purposes of this clause (b), "validate" shall have the
meaning set forth in Section 1.03(b).
(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 and the Trustee 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.
(d) If the Special Servicer receives notice from the Master
Servicer of any reporting inconsistencies pursuant to Section 5.06, 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, any Rating Agency or 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.
SECTION 6.10 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 this
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 this Agreement.
Notwithstanding, any other provision hereof, 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 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 Primary Collection Account an amount equal to the aggregate
unreimbursed Advances with all accrued interest thereon made by such 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 6.11 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:
(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 6.11(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 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) from Liquidation Proceeds, Insurance Proceeds or
Condemnation Proceeds on deposit in the related 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 6.11(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.
(c) Notwithstanding the foregoing, the Special Servicer shall not
take any action pursuant to this Section 6.11 except in connection with the
implementation of an Asset Strategy Report pursuant to Section 6.03(c).
SECTION 6.12 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 related
Primary Servicer and the Trustee in the form of Exhibit W hereto.
(b) Unless the related Primary Servicer and the Special Servicer
with respect to a Related 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 of Exhibit X hereto, 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 6.12, 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 6.02(c) hereof, such Mortgage
Loan shall cease to be a Specially Serviced Mortgage Loan, the Special
Servicer's obligation to service such Related Mortgage Loan shall terminate,
and all duties and obligations of the related Primary Servicer with respect
to such Related Mortgage Loan to the extent set forth herein previously
assumed by the Special Servicer shall be reassumed by the related Primary
Servicer.
SECTION 6.13 Special Servicer Compensation.
The 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 other than the Crown Participation 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. There will be no fee payable to the
Special Servicer in connection with the Crown Participation other than the
fee payable thereto pursuant to the servicing agreement referenced in the
Crown Participation Agreement.
SECTION 6.14 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 6.01. 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 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 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.
SECTION 6.15 Collateral Value Adjustments.
(a) Within 30 days of a Required Appraisal Date for any Mortgage
Loan, the Special Servicer shall obtain an appraisal for the related
Mortgaged Property from an independent MAI appraiser at the expense of
the Trust Fund (except if an appraisal has been conducted within the 12
month period preceding such event).
(b) Until such time as the related Collateral Value Adjustment is
reduced to zero, within 30 days of each anniversary of a Required
Appraisal Date for any Mortgage Loan, the Special Servicer shall order
an update of the prior appraisal for the related Mortgaged Property (the
cost of which will be a Servicing Advance of the Special Servicer).
(c) The Special Servicer shall determine and report to the
Trustee, the Master Servicer and the related Primary Servicer any
appraisal value obtained pursuant to clause (a) or (b) above and will
adjust the amount of the Collateral Value Adjustment in accordance
therewith.
SECTION 6.16 Replacement Special Servicer.
(a) The Directing Certificateholder may at any time and without cause
terminate the Special Servicer and appoint a replacement (a "Replacement
Special Servicer") to perform such duties under substantially the same terms
and conditions as applicable to the Special Servicer. Such holder(s) shall
designate a replacement to so serve by the delivery to the Trustee of a
written notice stating such designation. The Trustee shall, promptly after
receiving any such notice, so notify the Rating Agencies. If the designated
replacement is acceptable to the Trustee on the basis of its financial and
servicing ability, which approval may not be unreasonably withheld, the
designated replacement shall become the Replacement Special Servicer as of
the date the Trustee shall have received: (i) written confirmation from each
Rating Agency stating that if the designated replacement were to serve as
Special Servicer under this Agreement, none of the then-current rating or
ratings of all outstanding classes of the Certificates would be qualified,
downgraded or withdrawn as a result thereof; (ii) a written acceptance of all
obligations of the Replacement Special Servicer, executed by the designated
replacement; and (iii) an opinion of counsel to the effect that the
designation of such replacement to serve as Replacement Special Servicer is
in compliance with this Agreement, that the designated replacement will be
bound by the terms of this Agreement and that this Agreement will be
enforceable against such designated replacement in accordance with its terms.
The Special Servicer shall be deemed to have resigned from its duties
simultaneously with such designated replacement's becoming the Replacement
Special Servicer under this Agreement. Any Replacement Special Servicer may
be similarly so replaced by the Directing Certificateholder.
(b) Notwithstanding the replacement of a Special Servicer pursuant to
clause (a) above, the resigning Special Servicer shall be entitled to receive
the Special Servicing Fee for any Mortgage Loan which became a Specially
Serviced Mortgage Loan and was subsequently returned to a performing status
prior to such resignation; provided that if such Mortgage Loan once again
becomes a Specially Serviced Mortgage Loan, the Replacement Special Servicer
shall thereafter be entitled to such fee. The Replacement Special Servicer
shall be entitled to the Special Servicing Fee for all other Specially
Serviced Mortgage Loans.
(c) The Directing Certificateholder shall be responsible for paying any
costs associated with such replacement.
ARTICLE VII
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 7.01 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 this 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 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 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 and (2) any P&I Advances deposited on or prior to
such Master Remittance Date pursuant to Section 5.05(b).
SECTION 7.02 Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on
deposit in the Certificate Account after payment of the reasonable fees and
expenses of the Extension Advisor pursuant to Section 6.14(h), to the extent
of the Available Distribution Amount, in the following order of priority:
(i) On each Distribution Date, 75% of any Net Prepayment Premium
to the Class X Certificates and 25% of any Net Prepayment
Premium to all other Certificates, in the following order:
Class A1, Class A2, Class A3, Class B, Class C, Class D, Class
E, Class F, Class G and Class NR Certificates through the
Distribution Date on which the related Class Balance thereof
has been reduced to zero;
(ii) subject to clause (iv) 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;
(iii) to distributions of the Principal Distribution Amount to the
Classes of Certificates then outstanding in reduction of their
respective Class Balances in the order set forth below;
(iv) 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 (iii)
above, interest distributions pursuant to clause (ii) 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
(iii) above;
(v) 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;
(vi) 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 (ii) and
(iv) above, is: first, to distributions of interest on the Class A1, Class
A2, Class A3 and Class X Certificates, pro rata, based on their respective
Interest Distribution Amounts; second, to the Class B Certificates; third, to
the Class C Certificates; fourth, to the Class D Certificates; fifth, to the
Class E Certificates; sixth, to the Class F Certificates; seventh, to the
Class G Certificates; and eighth, to the Class NR Certificates up to their
respective Interest Distribution Amounts. The Principal Distribution Amount
for such Distribution Date set forth in Clause (iii) above will be applied to
distributions of principal of the Class A1, Class A2, Class A3, 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.
After reduction of the Class Balances of all the Certificates to zero, any
remaining portion of the Available Distribution Amount will be distributed to
the holders of the Class X Certificates up to an aggregate amount equal to
the sum of all prior Collateral Value Adjustment Reduction Amounts allocated
thereto.
(b) All distributions made with respect to each Class on each
Distribution Date shall be computed by the Trustee based upon information
furnished to the Trustee by the Master Servicer and 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 12.01, 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 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 7.02(c) 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 7.02(c).
SECTION 7.03 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 this Agreement.
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
this Agreement. 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 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 6.03(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 11.04) 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 11.04) 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) 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.
(f) Subject to availability, the Trustee shall, verbally over the
telephone, provide the Pool Factor, for the immediately succeeding
Distribution Date, to each Certificateholder and (subject to Section 7.03(a))
each Certificate Owner requesting such factor. Such request shall be made no
more than two Business Days preceding such Distribution Date by calling the
Trustee at (617) 664-5367.
SECTION 7.04 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 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 10.01 and (b) assume the rights and obligations of the Master
Servicer hereunder in accordance with Section 10.02, 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.
The Trustee shall deposit all funds it receives pursuant to this
Section 7.04 into the Certificate Account.
SECTION 7.05 Allocations of Realized Losses and Collateral Value
Adjustments.
At least four Business Days 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 (or to increase, in
the case of Collateral Value Adjustments) 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 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, Class A2
and Class A3 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.
ARTICLE VIII
THE CERTIFICATES
SECTION 8.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits. The Class A1, Class A2, Class A3, Class B, Class
C, Class D, Class E, Class X, 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 A2, Class A3, Class B, Class C, Class D,
Class E, Class X, 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.
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 8.02(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 8.01 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 8.02 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 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-1
hereto, (ii) if such transfer is purportedly being made in reliance upon
Regulation S under the 1933 Act, a certificate from the prospective
transferee substantially in the form attached as Exhibit D-2 hereto, (iii) if
such transfer is purportedly being made in reliance upon Rule 144 under the
1933 Act, a certificate from the prospective transferee substantially in the
form attached as Exhibit D-3 hereto, and (iv) 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 A2,
Class A3 or Class X Certificates, 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,
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
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 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 8.02(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
8.02(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 8.02(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 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 8.02(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 8.02 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 8.03 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 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 8.04 Persons Deemed Owners.
The Depositor, the Master Servicer, the Special Servicer, any Primary
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 7.02 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.
ARTICLE IX
THE DEPOSITOR
SECTION 9.01 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 9.02 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 9.03 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.
ARTICLE X
DEFAULT
SECTION 10.01 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 the date required
pursuant to the terms of this Agreement; or
(ii) except as set forth in clause (i) above, such Servicer shall
(x) fail to remit to the Master Servicer or deposit in the
Master Collection Account, a Primary Collection Account,
Escrow Account or REO Account any amount required to be so
remitted or deposited under the terms of this Agreement within
one (1) Business Day of the date required pursuant to the
terms of this Agreement or (y) fail to make any Advance
required to be made by such Servicer under this Agreement
within one (1) Business Day of the date required pursuant to
the terms of this Agreement; provided, however, that such
failure shall not be deemed an Event of Default with respect
to a Primary Servicer, if following the occurrence of an act
of God which makes it commercially impracticable for such
Primary Servicer to remit any such amount, the Master Servicer
in its sole reasonable discretion establishes a longer time
period within which such amounts shall be submitted by such
Primary Servicer; or
(iii) such Servicer shall fail to timely deliver to the Trustee or
any other Servicer any report required pursuant to the
provisions of this Agreement and such failure shall continue
unremedied for a period of two (2) Business Days following
receipt by such Servicer of notice from the Trustee or other
Servicer of such failure; provided, however, that such failure
shall not be deemed an Event of Default with respect to a
Primary Servicer, if following the occurrence of an act of God
which makes it commercially impracticable for such Primary
Servicer to deliver any such report, the Master Servicer in
its sole reasonable discretion establishes a longer time
period within which such report shall be delivered by such
Primary Servicer; or
(iv) 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
(v) 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 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
(vi) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against
such Servicer and such decree or order shall have remained in
force undischarged or unstayed for a period of sixty (60)
days; or
(vii) such Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to such
Servicer or of or relating to all or substantially all of its
property; or
(viii) such Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations; or
(ix) such Servicer shall fail to maintain a required license to do
business or service multifamily and commercial mortgage loans
in accordance with Accepted Servicing Practices or Accepted
Special Servicing Practices, as applicable, and as provided in
this Agreement, in any jurisdiction where the Mortgaged
Properties or REO Properties are located and such failure
shall continue unremedied for a period of thirty (30) Business
Days; or
(x) except as otherwise permitted pursuant to the express terms of
this Agreement, such Servicer attempts to assign its right to
servicing compensation hereunder or a Servicer attempts,
without the prior written consent of Trustee, to assign this
Agreement or the servicing responsibilities hereunder or any
portion thereof; or
(xi) any Rating Agency has given written confirmation that with
respect to any Servicer that maintaining the Servicer in such
capacity hereunder will cause a downgrade, qualification or
withdrawal of the ratings then assigned to the Certificates;
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)-(v) hereof, at least 25% of the Voting Rights of any
affected Class of Certificates, in the case of any Event of Default described
in clauses (vi)-(x) hereof, at least 25% of all of the Voting Rights or, in
the case of an Event of Default described in clause (xi) hereof, 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 10.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 10.01, 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 10.01 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 such Trustee is not an approved
Servicer, 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 3.10. Pending appointment of a
successor to the Master Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided.
SECTION 10.03 Notification to Certificateholders.
(a) Upon any such termination pursuant to Section 10.01 above, any
appointment of a successor to the Master Servicer pursuant to Section 10.02,
or any appointment of a Replacement Special Servicer pursuant to Section
6.15, 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 10.04 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) or (ii) of Section 10.01 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 10.01(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 10.04,
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 10.05 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 10.01, 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.
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.01 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 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, shall examine them to determine
whether they conform to the requirements of this Agreement, if applicable.
If any such instrument is found not to conform to the requirements of this
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, the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read
into this 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;
(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 11.02 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 6.03 and 6.11 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 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 6.03(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 11.03 Powers of Attorney.
The Trustee shall execute and deliver any powers of attorney prepared
and delivered to it by the Master Servicer pursuant to Section 5.01(b) or the
Special Servicer pursuant to Section 6.03(b).
SECTION 11.04 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.
SECTION 11.05 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 11.01:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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, 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;
(f) 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;
(g) The Trustee shall not be required to obtain a deficiency
judgment against any Mortgagor;
(h) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default hereunder 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;
(i) 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
(j) 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 11.06 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 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 11.07 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 11.08 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
0.015% 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 11.15,
or as may be covered under Section 10.01); 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
(iii) notwithstanding anything to the contrary in this Section
11.08, 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 11.08 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 11.09 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 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 11.10. 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.
SECTION 11.10 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 11.09 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 11.11.
SECTION 11.11 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 11.10
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, 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 11.09.
(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 11.12 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 11.09 or 11.11, 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 11.13 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 11.13, 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 trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 11.09 hereunder and no
notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 11.11 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 11.13 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 XI. 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 11.13 shall not relieve the Trustee of its duties and
responsibilities hereunder.
SECTION 11.14 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 XI, 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 be qualified to do business in the
jurisdiction in which it holds any Mortgage Loan File and shall not be the
Depositor, the Person who originated or sold to the Depositor or MGT the
related Mortgage Loan or any Affiliate thereof. 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. Any custodian succeeding the initial Custodian shall be required to
have a blanket fidelity bond and an errors and omissions insurance policy in
amounts customary for custodians. 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.
(b) Pursuant to the Custodial Agreement, the Custodian may, from
time to time and as appropriate for the servicing, foreclosure or payoff of
any Mortgage Loan, but subject to the restrictions therein provided, upon
receipt by the Custodian of a Request for Release and Receipt of Documents
provided by any Servicer in the form set forth on Exhibit Y, release to such
Servicer the related Mortgage Loan File or the documents from a Mortgage Loan
File set forth in such request. Each Servicer acknowledges that during all
times that any Mortgage Loan File or any contents thereof are in the physical
possession of such Servicer, or are in transit to such Servicer from the
Custodian, or are in transit from such Servicer to the Custodian, such
Mortgage Loan File and the documents contained therein shall be held by the
Servicer for and on behalf of the Trustee and shall be and remain the sole
and exclusive property of the Trust Fund. For so long as any Mortgage Loan
File or any document taken therefrom is in any Servicer's physical
possession, the same shall be stored in a one and one-half-hour rated fire-
resistant filing cabinet or the equivalent.
(c) Subject to any state law requirement or court order, each
Servicer hereby agrees to return to the Custodian each and every document
previously requested from the Mortgage Loan File when such Servicer's need
therefor in connection with such foreclosure or servicing no longer exists or
upon request of the Trustee, unless the related Mortgage Loan shall be
liquidated or paid in full, in which case, upon receipt of the certification
set forth in the Custodial Agreement from any Servicer, the Trustee shall
authorize the Custodian to release the related Servicer's prior request form,
together with all other documents still retained by the Custodian with
respect to such Mortgage Loan, to such Servicer.
(d) Upon receipt of the payment in full of any Mortgage Loan, or
upon the receipt by the related Primary Servicer or Special Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, such Servicer shall promptly deliver to the Custodian a
Request for Release and Receipt of Documents in the form set forth on Exhibit
Y requesting delivery to such Servicer of the Mortgage Loan File for such
Mortgage Loan. In connection therewith, such Servicer shall deliver to the
Master Servicer, the Trustee and the Custodian a Request for Release and
Receipt of Documents indicating that all amounts received in connection with
such payment that are required to be deposited in the related subaccount of
the Primary Collection Account or Escrow Account or the related REO Account
pursuant to Section 4.02, Section 4.06 or Section 6.06 hereof have been or
will be so deposited.
(e) Each Primary Servicer and the Special Servicer shall forward
to the Custodian original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into by such Servicer
in accordance with this Agreement within ten (10) Business Days of the
execution thereof and the delivery of such instrument to such Servicer;
provided, however, that such Servicer may, in lieu
- -------- -------
thereof, provide the Custodian with a certified true copy of any such
document submitted for recordation within five (5) Business Days of its
execution, in which event such Servicer shall provide the Custodian with the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and
complete copy of the recorded original within five (5) Business Days of
receipt thereof by such Servicer.
(f) Upon any payment in full of a Mortgage Loan, the related
Primary Servicer or Special Servicer may execute an instrument of
satisfaction regarding the related Mortgage and any other related Mortgage
Loan Documents, which instruments of satisfaction shall be recorded by such
Servicer if required by applicable law and shall be delivered to the Person
entitled thereto, it being understood and agreed that all reasonable expenses
incurred by such Servicer in connection with such instruments of satisfaction
shall be deemed a Servicing Advance, which shall be reimbursed pursuant to
the terms of this Agreement. Such Servicer shall notify the Custodian and
the Master Servicer of the execution of an instrument of satisfaction
described above as soon as practicable.
(g) No amendment to the Custodial Agreement which adversely
affects the ability of a Primary Servicer to perform under this Agreement
shall be binding on such Primary Servicer unless it has consented to such
amendment, which consent shall not be unreasonably withheld.
SECTION 11.15 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.
(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 11.16 Massachusetts Filings.
The Trustee shall make all filings required under Massachusetts
General Laws, Chapter 182, Sections 2 and 12.
SECTION 11.17 SEC Filings.
Based upon information furnished to it by the Master Servicer and
the Depositor, the Trustee will prepare and file reports with the Securities
and Exchange Commission on Forms 8-K and 10-K on behalf of the Trust Fund.
ARTICLE XII
TERMINATION
SECTION 12.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 12.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer,
the Primary Servicers, 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 greater of
(a) 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 and (b) the aggregate Class Balance of all
the Certificates plus accrued and unpaid interest thereon and (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 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 7.02 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 7.02.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Primary Servicers (to the extent affected
thereby), 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 Primary Servicers (to the extent affected
thereby), 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 13.01, Certificates registered in the name
of the 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 13.01 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 13.01(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 this Agreement unless the conditions set forth in clause (a) or (b) above
are satisfied with respect to such amendment.
SECTION 13.02 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, 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 13.03 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 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 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 13.04 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 13.05 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 BOMCC, as Master Servicer, Special Servicer or
Primary Servicer, Banc One Management and Consulting Corporation, 1717 Main
Street, 14th 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 AMRESCO
Management, Inc., as Primary Servicer, AMRESCO Management, Inc., 235
Peachtree Street, N.E., Suite 900, Atlanta, Georgia 30303, Attention:
Candace Taylor and Legal Counsel with a copy to AMRESCO, Inc., 700 N. Pearl
Street, Suite 2400, Dallas, Texas 75201, Attention: General Counsel,
telephone number: 214-953-7727, telecopy number: 214-953-7757; (iv) in the
case of GMAC Commercial Mortgage Corporation, as Primary Servicer, GMAC
Commercial Mortgage Corporation, 650 Dresher Road, Horsham, Pennsylvania
19044, Attention: Barry Moore, Executive Vice President, telephone number:
215-682-3806, telecopy number: 215-682-3478, with a copy to GMAC Commercial
Mortgage Corporation, 100 Witmer Road, Horsham, Pennsylvania 19044,
Attention: General Counsel, telephone number: 215-682-1430, telecopy
number: 215-682-1467; (v) 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 (vi) 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, (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, and (C) Moody's Investors
Service, Inc., 99 Church Street, fourth floor, Structured Finance Group, New
York, New York 10007, Attention: Cedric Philipp, Jr., telephone number: 212-
553-1992, telecopy number: 212-553-1350; 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 13.06 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 of the other provisions
of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 13.07 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 Master Collection Account, each Primary
Collection Account and 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 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 13.07 shall constitute notice to the Trustee pursuant to any of the
requirements of the New York Uniform Commercial Code.
SECTION 13.08 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) Pursuant to the terms of Section 8.01, this Agreement shall
not be assigned, pledged or hypothecated by any Servicer to a third party
without the prior written consent of the Trustee; provided, however, that the
Primary Servicer may assign its rights and obligations hereunder to an
Affiliate thereof which (i) is approved by the Master Servicer and (ii) which
satisfies the requirements of Sections 3.10 hereof.
SECTION 13.09 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 13.10 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
this 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 3.02,
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.03,
(iii) the most current rent rolls and financial statements available
from time to time with respect to any Mortgaged Property or
any Mortgagor, and
(iv) other information the Rating Agencies may reasonably request
consistent with the Master Servicer's servicing duties
hereunder.
SECTION 13.11 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: /s/ Lawrence Blume
---------------------------------
Name: Lawrence Blume
Title: Vice President
BANC ONE MANAGEMENT AND CONSULTING
CORPORATION,
Master Servicer, Special Servicer and
Primary Servicer
By: /s/ Edgar Smith, II
-----------------------------------
Name: Edgar Smith, II
Title: Executive V.P.
AMRESCO MANAGEMENT, INC.,
Primary Servicer
By: /s/ Henry B. Garmon
-----------------------------------
Name: Henry B. Garmon
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Primary Servicer
By: /s/ Kathy Marquardt
-----------------------------------
Name: Kathy Marquardt
Title: Senior Vice President
STATE STREET BANK AND TRUST COMPANY,
Trustee and Extension Advisor
By: /s/ Karen Beard
-----------------------------------
Name: Karen Beard
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 6th day of February, 1997 before me, a notary public in
and for said State, personally appeared Lawrence J. Blume known to me to be a
Vice President 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)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 6th day of February, 1997, before me, a notary public in
and for said State, personally appeared Karen Beard known to me to be
Assistant Vice President of State Street Bank and Trust Company, one of the
corporations 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)
STATE OF )
) ss.:
COUNTY OF )
On the 6th day of February, 1997, 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)
EXHIBITS
THE EXHIBITS ARE AVAILABLE UPON REQUEST TO BANC ONE MANAGEMENT AND CONSULTING
CORPORATION.
