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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) September 1, 1997
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J.P. Morgan Commercial Mortgage Finance Corp.
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(Exact Name of Registrant as Specified in Charter)
Delaware 333-31095 13-3789046
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
60 Wall Street
New York, New York 10260
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(Address of Principal Executive
Offices and Zip Code)
Registrant's telephone number, including area code (212) 648-9344
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Item 5. Other Events
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Filing of Pooling and Servicing Agreement.
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On September 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, Midland Loan
Services, L.P., as master servicer and special servicer, LaSalle National
Bank, as trustee, and ABN AMRO Bank N.V., as fiscal agent. The Pooling and
Servicing Agreement is annexed hereto as Exhibit 99.
Item 7. Financial Statements, Pro Forma Financial
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Information and Exhibits.
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(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
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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/ Bianca A. Russo
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Name: Bianca A. Russo
Title: Vice President
Dated: October 13, 1997
Exhibit Index
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Exhibit Page
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99. Pooling and Servicing Agreement 6
EXHIBIT 99
EXECUTION COPY
J. P. MORGAN COMMERCIAL MORTGAGE FINANCE CORP.,
Depositor,
MIDLAND LOAN SERVICES, L.P.,
Master Servicer and Special Servicer,
LASALLE NATIONAL BANK,
Trustee,
and
ABN AMRO BANK N.V.
Fiscal Agent
________________________________
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1997
________________________________
$1,033,747,782
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C5
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms . . . . . . . . . . . . . . . . . . . . 3
Accepted Servicing Practices . . . . . . . . . . . . . . . . . 3
Accepted Special Servicing Practices . . . . . . . . . . . . . 3
Acquisition Date . . . . . . . . . . . . . . . . . . . . . . . 4
Adjusted Available Distribution Amount . . . . . . . . . . . . 4
Adjusted Collateral Value . . . . . . . . . . . . . . . . . . . 4
Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Advance/Delinquency Report . . . . . . . . . . . . . . . . . . 5
Advance Rate . . . . . . . . . . . . . . . . . . . . . . . . . 5
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Allocation Fraction . . . . . . . . . . . . . . . . . . . . . . 5
Asset Strategy Report . . . . . . . . . . . . . . . . . . . . . 5
Assignment of Leases and Rents . . . . . . . . . . . . . . . . 5
Assignment of Mortgage . . . . . . . . . . . . . . . . . . . . 5
Assumed Final Distribution Date . . . . . . . . . . . . . . . . 5
Auction Closing Date . . . . . . . . . . . . . . . . . . . . . 6
Auction Fees . . . . . . . . . . . . . . . . . . . . . . . . . 6
Auction Valuation Date . . . . . . . . . . . . . . . . . . . . 6
Available Distribution Amount . . . . . . . . . . . . . . . . . 6
Balloon Mortgage Loan . . . . . . . . . . . . . . . . . . . . . 6
Balloon Payment . . . . . . . . . . . . . . . . . . . . . . . . 6
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . 6
Book-Entry Certificate . . . . . . . . . . . . . . . . . . . . 6
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . 6
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Certificate Account . . . . . . . . . . . . . . . . . . . . . . 6
Certificate Balance . . . . . . . . . . . . . . . . . . . . . . 7
Certificateholder" or "Holder" . . . . . . . . . . . . . . . . 7
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 . . . . . . . . . . . . . . . . . . . . . . 8
Class D Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Class E Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Class F Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Class G Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Class H Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Class NR-I Certificate . . . . . . . . . . . . . . . . . . . . 8
Class NR-P Certificate . . . . . . . . . . . . . . . . . . . . 8
Class Portion . . . . . . . . . . . . . . . . . . . . . . . . . 8
Class Prepayment Fraction . . . . . . . . . . . . . . . . . . . 8
Class R-I Certificate . . . . . . . . . . . . . . . . . . . . . 8
Class R-II Certificate . . . . . . . . . . . . . . . . . . . . 9
Class R-III Certificate . . . . . . . . . . . . . . . . . . . . 9
Class X Certificate . . . . . . . . . . . . . . . . . . . . . . 9
Class X Component . . . . . . . . . . . . . . . . . . . . . . . 9
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Collateral Value Adjustment . . . . . . . . . . . . . . . . . . 11
Collateral Value Adjustment Capitalization Amount . . . . . . . 11
Collateral Value Adjustment Event . . . . . . . . . . . . . . . 11
Collateral Value Adjustment Reduction Amount . . . . . . . . . 11
Collection Account . . . . . . . . . . . . . . . . . . . . . . 12
Collection Period . . . . . . . . . . . . . . . . . . . . . . . 12
Condemnation Proceeds . . . . . . . . . . . . . . . . . . . . . 12
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . 12
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Cut-off Date . . . . . . . . . . . . . . . . . . . . . . . . . 12
Cut-off Date Balance . . . . . . . . . . . . . . . . . . . . . 12
Defaulted Mortgage Loan . . . . . . . . . . . . . . . . . . . . 12
Deficient Valuation . . . . . . . . . . . . . . . . . . . . . . 13
Definitive Certificate . . . . . . . . . . . . . . . . . . . . 13
Delivery Date . . . . . . . . . . . . . . . . . . . . . . . . . 13
Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Depository Participant . . . . . . . . . . . . . . . . . . . . 13
Detailed Loan Indicative Data File . . . . . . . . . . . . . . 13
Determination Date . . . . . . . . . . . . . . . . . . . . . . 13
Directing Certificateholder . . . . . . . . . . . . . . . . . . 13
Directly Operate . . . . . . . . . . . . . . . . . . . . . . . 14
Disqualified Organization . . . . . . . . . . . . . . . . . . . 14
Distribution Date . . . . . . . . . . . . . . . . . . . . . . . 14
Due Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Eligible Account . . . . . . . . . . . . . . . . . . . . . . . 14
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . 15
Escrow Account . . . . . . . . . . . . . . . . . . . . . . . . 16
Escrow Payments . . . . . . . . . . . . . . . . . . . . . . . . 16
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 16
Excess Condemnation Proceeds . . . . . . . . . . . . . . . . . 16
Excess Insurance Proceeds . . . . . . . . . . . . . . . . . . . 17
FDIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Final Certification . . . . . . . . . . . . . . . . . . . . . . 17
Final Recovery Determination . . . . . . . . . . . . . . . . . 17
Fiscal Agent . . . . . . . . . . . . . . . . . . . . . . . . . 17
Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . 17
Holder or Certificateholder. . . . . . . . . . . . . . . . . . 17
Independent . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Insurance Policy . . . . . . . . . . . . . . . . . . . . . . . 18
Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . 18
Interest Accrual Amount . . . . . . . . . . . . . . . . . . . . 18
Interest Distribution Amount . . . . . . . . . . . . . . . . . 18
Interested Person . . . . . . . . . . . . . . . . . . . . . . . 19
Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Liquidation Event . . . . . . . . . . . . . . . . . . . . . . . 19
Liquidation Proceeds . . . . . . . . . . . . . . . . . . . . . 19
Loan Sale Agreement . . . . . . . . . . . . . . . . . . . . . . 19
Loss Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . 19
Master Remittance Date . . . . . . . . . . . . . . . . . . . . 20
Master Servicer . . . . . . . . . . . . . . . . . . . . . . . . 20
Master Servicing Fee . . . . . . . . . . . . . . . . . . . . . 20
Master Servicing Fee Rate . . . . . . . . . . . . . . . . . . . 20
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . 20
MGT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Minimum Auction Price . . . . . . . . . . . . . . . . . . . . . 20
Modification . . . . . . . . . . . . . . . . . . . . . . . . . 20
Monitoring Certificateholder . . . . . . . . . . . . . . . . . 20
Monitoring Class . . . . . . . . . . . . . . . . . . . . . . . 20
Monthly Payment . . . . . . . . . . . . . . . . . . . . . . . . 20
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . . . 20
Mortgage Loan Documents . . . . . . . . . . . . . . . . . . . . 21
Mortgage Loan File . . . . . . . . . . . . . . . . . . . . . . 21
Mortgage Loan Schedule . . . . . . . . . . . . . . . . . . . . 21
Mortgage Loan Seller . . . . . . . . . . . . . . . . . . . . . 21
Mortgage Note . . . . . . . . . . . . . . . . . . . . . . . . . 21
Mortgage Rate . . . . . . . . . . . . . . . . . . . . . . . . . 21
Mortgaged Property . . . . . . . . . . . . . . . . . . . . . . 21
Mortgagor . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Most Subordinate Class of Certificates . . . . . . . . . . . . 22
Net Prepayment Premium . . . . . . . . . . . . . . . . . . . . 22
Nonrecoverable Advance . . . . . . . . . . . . . . . . . . . . 22
Nonrecoverable Advance Certificate . . . . . . . . . . . . . . 22
Non-United States Person . . . . . . . . . . . . . . . . . . . 22
Non-U.S. Treasury Net Prepayment Premium . . . . . . . . . . . 22
Notional Amount . . . . . . . . . . . . . . . . . . . . . . . . 22
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 22
Operating Statements and Rent Rolls Report . . . . . . . . . . 22
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 23
Original Class Balance . . . . . . . . . . . . . . . . . . . . 23
Ownership Interest . . . . . . . . . . . . . . . . . . . . . . 23
P&I Advance . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Pass-Through Rate . . . . . . . . . . . . . . . . . . . . . . . 23
Payment Reserve . . . . . . . . . . . . . . . . . . . . . . . . 23
Percentage Interest . . . . . . . . . . . . . . . . . . . . . . 23
Permitted Investments . . . . . . . . . . . . . . . . . . . . . 23
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Pool Factor . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Prepayment Assumption . . . . . . . . . . . . . . . . . . . . . 25
Prepayment Interest Excess . . . . . . . . . . . . . . . . . . 25
Prepayment Interest Shortfall . . . . . . . . . . . . . . . . . 25
Prepayment Premium . . . . . . . . . . . . . . . . . . . . . . 25
Primary Seller . . . . . . . . . . . . . . . . . . . . . . . . 25
Prime Rate . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Principal Distribution Amount . . . . . . . . . . . . . . . . . 25
Principal Prepayment . . . . . . . . . . . . . . . . . . . . . 26
Private Certificates . . . . . . . . . . . . . . . . . . . . . 26
Property Improvement Expenses . . . . . . . . . . . . . . . . . 26
Property Inspection Report . . . . . . . . . . . . . . . . . . 26
Property Protection Expenses . . . . . . . . . . . . . . . . . 26
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . 27
Qualified Insurer . . . . . . . . . . . . . . . . . . . . . . . 27
Rating Agency . . . . . . . . . . . . . . . . . . . . . . . . . 28
Realized Loss . . . . . . . . . . . . . . . . . . . . . . . . . 28
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 29
REMIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
REMIC I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
REMIC I Uncertificated Interests . . . . . . . . . . . . . . . 29
REMIC II . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
REMIC II Uncertificated Interests . . . . . . . . . . . . . . . 29
REMIC III . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
REMIC Provisions . . . . . . . . . . . . . . . . . . . . . . . 29
Remittance Period . . . . . . . . . . . . . . . . . . . . . . . 30
Remittance Rate . . . . . . . . . . . . . . . . . . . . . . . . 30
Remittance Report . . . . . . . . . . . . . . . . . . . . . . . 30
Rents from Real Property . . . . . . . . . . . . . . . . . . . 30
REO Account . . . . . . . . . . . . . . . . . . . . . . . . . . 30
REO Acquisition . . . . . . . . . . . . . . . . . . . . . . . . 30
REO Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . 30
REO Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 30
REO Property . . . . . . . . . . . . . . . . . . . . . . . . . 30
REO Status Report . . . . . . . . . . . . . . . . . . . . . . . 31
Repair and Remediation Reserve . . . . . . . . . . . . . . . . 31
Replacement Reserve . . . . . . . . . . . . . . . . . . . . . . 31
Replacement Special Servicer . . . . . . . . . . . . . . . . . 31
Request for Release and Receipt of Documents . . . . . . . . . 31
Required Appraisal Date . . . . . . . . . . . . . . . . . . . . 31
Required Rating . . . . . . . . . . . . . . . . . . . . . . . . 31
Residual Certificate . . . . . . . . . . . . . . . . . . . . . 31
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 32
Scheduled Principal Balance . . . . . . . . . . . . . . . . . . 32
Security Agreement . . . . . . . . . . . . . . . . . . . . . . 32
Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Servicing Advance . . . . . . . . . . . . . . . . . . . . . . . 32
Servicing Fee . . . . . . . . . . . . . . . . . . . . . . . . . 32
Servicing Fee Rate . . . . . . . . . . . . . . . . . . . . . . 32
Servicing Officer . . . . . . . . . . . . . . . . . . . . . . . 32
Servicing Transfer Date . . . . . . . . . . . . . . . . . . . . 32
Servicing Transfer Event . . . . . . . . . . . . . . . . . . . 33
Specially Serviced Mortgage Loan . . . . . . . . . . . . . . . 33
Specially Serviced Mortgage Loan Status Report . . . . . . . . 33
Special Servicer . . . . . . . . . . . . . . . . . . . . . . . 33
Special Servicing Fee . . . . . . . . . . . . . . . . . . . . . 33
Startup Day . . . . . . . . . . . . . . . . . . . . . . . . . . 33
State Tax Laws . . . . . . . . . . . . . . . . . . . . . . . . 33
Stated Principal Balance . . . . . . . . . . . . . . . . . . . 33
Subservicing Fee Rate . . . . . . . . . . . . . . . . . . . . . 34
Tax Matters Person . . . . . . . . . . . . . . . . . . . . . . 34
Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Tenant Improvement and Leasing Commissions Reserve . . . . . . 35
Transfer Date . . . . . . . . . . . . . . . . . . . . . . . . . 35
Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Trustee Fee . . . . . . . . . . . . . . . . . . . . . . . . . . 35
UCC Financing Statement . . . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest I . . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest II . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest III . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest IV . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest V . . . . . . . . . . . . . . . . . . . 36
Uncertificated Interest VI . . . . . . . . . . . . . . . . . . 36
Uncertificated Interest VII . . . . . . . . . . . . . . . . . . 36
Uncertificated Interest VIII . . . . . . . . . . . . . . . . . 36
Uncertificated Interest IX . . . . . . . . . . . . . . . . . . 36
Uncertificated Interest X . . . . . . . . . . . . . . . . . . . 36
Uncertificated Interest XI . . . . . . . . . . . . . . . . . . 36
Underwriter . . . . . . . . . . . . . . . . . . . . . . . . . . 36
United States Person . . . . . . . . . . . . . . . . . . . . . 36
U.S. Treasury Net Prepayment Premium . . . . . . . . . . . . . 36
Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . 37
Weighted Average Remittance Rate . . . . . . . . . . . . . . . 37
SECTION 1.02 Calculations . . . . . . . . . . . . . . . . . . . . 37
SECTION 1.03 Rules of Construction . . . . . . . . . . . . . . . . 37
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans . . . . . . . . . . . . 38
SECTION 2.02 Acceptance by Trustee . . . . . . . . . . . . . . . . 40
SECTION 2.03 Representations and Warranties of the Depositor, the
Master Servicer and the Special Servicer; Assignment
of Rights . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 2.04 Repurchase of Mortgage Loans for Breaches of
Representation and Warranty . . . . . . . . . . . . . 46
SECTION 2.05 Execution of Certificates . . . . . . . . . . . . . . 47
ARTICLE III
GENERAL SERVICING AND ADMINISTRATION
SECTION 3.01 Access to Certain Documentation Regarding the
Mortgage Loans and This Agreement . . . . . . . . . . 48
SECTION 3.02 Annual Statement As to Compliance . . . . . . . . . . 48
SECTION 3.03 Annual Independent Public Accountants' Servicing
Report . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 3.04 Merger or Consolidation of Any Servicer . . . . . . . 49
SECTION 3.05 Limitation on Liability of the Servicers and Others . 49
SECTION 3.06 Resignation of Servicers . . . . . . . . . . . . . . 50
SECTION 3.07 Maintenance of Errors and Omissions and Fidelity
Coverage . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.08 Indemnity . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 3.09 Information Systems . . . . . . . . . . . . . . . . . 53
SECTION 3.10 Successor to a Servicer . . . . . . . . . . . . . . . 53
SECTION 3.11 REMIC Administration . . . . . . . . . . . . . . . . 54
SECTION 3.12 Notices to Mortgagors . . . . . . . . . . . . . . . . 58
SECTION 3.13 Subservicing . . . . . . . . . . . . . . . . . . . . 58
SECTION 3.14 Record Title to Mortgage Loans, Etc. . . . . . . . . 60
SECTION 3.15 Release of Documents and Instruments of
Satisfaction . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE IV
MASTER SERVICING
SECTION 4.01 The Master Servicer . . . . . . . . . . . . . . . . . 62
SECTION 4.02 Collection Account; Collection of Certain Mortgage
Loan Payments . . . . . . . . . . . . . . . . . . . . 64
SECTION 4.03 Permitted Withdrawals from the Collection Account . . 66
SECTION 4.04 Remittances to the Trustee . . . . . . . . . . . . . 68
SECTION 4.05 Master Servicer Advances . . . . . . . . . . . . . . 69
SECTION 4.06 Escrow Accounts . . . . . . . . . . . . . . . . . . . 70
SECTION 4.07 Maintenance of Insurance . . . . . . . . . . . . . . 72
SECTION 4.08 Enforcement of "Due-on-Sale" Clauses; Assumption
Agreements . . . . . . . . . . . . . . . . . . . . . 74
SECTION 4.09 Review of Property Inspections, Operating Statements
and Rent Rolls . . . . . . . . . . . . . . . . . . . 75
SECTION 4.10 Reports of the Master Servicer . . . . . . . . . . . 75
SECTION 4.11 Confirmation of Balloon Payment . . . . . . . . . . . 76
SECTION 4.12 Master Servicer Compensation . . . . . . . . . . . . 76
SECTION 4.13 Adjustment of Master Servicer's Compensation. . . . . 77
SECTION 4.14 Implementation of Operations and Maintenance Plans. . 77
SECTION 4.15 Dissemination of Information . . . . . . . . . . . . 77
ARTICLE V
(RESERVED)
ARTICLE VI
SPECIAL SERVICING
SECTION 6.01 The Special Servicer . . . . . . . . . . . . . . . . 79
SECTION 6.02 Transfer to Special Servicing . . . . . . . . . . . . 79
SECTION 6.03 Servicing of Specially Serviced Mortgage Loans . . . 80
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 Master Servicer. . . . . . . . . . . . . . . . . . . 88
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 . . 93
SECTION 6.13 Special Servicer Compensation. . . . . . . . . . . . 94
SECTION 6.14 (RESERVED) . . . . . . . . . . . . . . . . . . . . . 94
SECTION 6.15 Collateral Value Adjustments . . . . . . . . . . . . 94
SECTION 6.16 Replacement Special Servicer . . . . . . . . . . . . 94
ARTICLE VII
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 7.01 Certificate Account; Remittances to the Trustee . . . 96
SECTION 7.02 Distributions . . . . . . . . . . . . . . . . . . . . 96
SECTION 7.03 Statements to Certificateholders . . . . . . . . . . 100
SECTION 7.04 Distribution of Reports to the Trustee and the
Depositor; Advances by the Master Servicer . . . . . 102
SECTION 7.05 Allocations of Realized Losses and Collateral Value
Adjustments . . . . . . . . . . . . . . . . . . . . . 103
SECTION 7.06 Auction . . . . . . . . . . . . . . . . . . . . . . . 104
ARTICLE VIII
THE CERTIFICATES
SECTION 8.01 The Certificates . . . . . . . . . . . . . . . . . . 106
SECTION 8.02 Registration of Transfer and Exchange of
Certificates . . . . . . . . . . . . . . . . . . . . 107
SECTION 8.03 Mutilated, Destroyed, Lost or Stolen Certificates . . 111
SECTION 8.04 Persons Deemed Owners . . . . . . . . . . . . . . . . 111
ARTICLE IX
THE DEPOSITOR
SECTION 9.01 Liability of the Depositor . . . . . . . . . . . . . 112
SECTION 9.02 Merger, Consolidation or Conversion of the
Depositor . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 9.03 Limitation on Liability of the Depositor and Others . 112
ARTICLE X
DEFAULT
SECTION 10.01 Events of Default . . . . . . . . . . . . . . . . . . 113
SECTION 10.02 Trustee to Act; Appointment of Successor . . . . . . 115
SECTION 10.03 Notification to Certificateholders . . . . . . . . . 116
SECTION 10.04 Waiver of Events of Default . . . . . . . . . . . . . 116
SECTION 10.05 Additional Remedies of Trustee Upon Event of
Default . . . . . . . . . . . . . . . . . . . . . . . 116
ARTICLE XI
CONCERNING THE TRUSTEE AND FISCAL AGENT
SECTION 11.01 Duties of Trustee . . . . . . . . . . . . . . . . . . 118
SECTION 11.02 Monitoring Certificateholders and Directing
Certificateholder . . . . . . . . . . . . . . . . . . 119
SECTION 11.03 Powers of Attorney . . . . . . . . . . . . . . . . . 120
SECTION 11.04 Certification by Certificate Owners . . . . . . . . . 120
SECTION 11.05 Certain Matters Affecting the Trustee . . . . . . . . 121
SECTION 11.06 Trustee Not Liable for Certificates or Mortgage
Loans. . . . . . . . . . . . . . . . . . . . . . . . 122
SECTION 11.07 Trustee and Fiscal Agent May Own Certificates . . . . 123
SECTION 11.08 Fees and Expenses of Trustee; Indemnification of
Trustee . . . . . . . . . . . . . . . . . . . . . . . 123
SECTION 11.09 Eligibility Requirements for Trustee . . . . . . . . 124
SECTION 11.10 Resignation and Removal of the Trustee . . . . . . . 124
SECTION 11.11 Successor Trustee . . . . . . . . . . . . . . . . . . 125
SECTION 11.12 Merger or Consolidation of Trustee . . . . . . . . . 126
SECTION 11.13 Appointment of Co-Trustee or Separate Trustee . . . . 126
SECTION 11.14 Appointment of Custodians . . . . . . . . . . . . . . 127
SECTION 11.15 Representations and Warranties of the Trustee . . . . 129
SECTION 11.16 Representations and Warranties of the Fiscal Agent . 130
SECTION 11.17 The Fiscal Agent . . . . . . . . . . . . . . . . . . 132
SECTION 11.18 SEC Filings. . . . . . . . . . . . . . . . . . . . . 132
SECTION 11.19 Information Systems . . . . . . . . . . . . . . . . . 133
ARTICLE XII
TERMINATION
SECTION 12.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans . . . . . . . . . . . . . . . . . . . 134
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Amendment . . . . . . . . . . . . . . . . . . . . . . 136
SECTION 13.02 Recordation of Agreement; Counterparts . . . . . . . 137
SECTION 13.03 Limitation on Rights of Certificateholders . . . . . 138
SECTION 13.04 Governing Law . . . . . . . . . . . . . . . . . . . . 139
SECTION 13.05 Notices . . . . . . . . . . . . . . . . . . . . . . . 139
SECTION 13.06 Severability of Provisions . . . . . . . . . . . . . 140
SECTION 13.07 Grant of a Security Interest . . . . . . . . . . . . 140
SECTION 13.08 Successors and Assigns . . . . . . . . . . . . . . . 140
SECTION 13.09 Article and Section Headings . . . . . . . . . . . . 141
SECTION 13.10 Notices and Information to Rating Agencies . . . . . 141
SECTION 13.11 Certificateholders' List . . . . . . . . . . . . . . 142
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 144A
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 (RESERVED)
Exhibit I Form of Loan Sale Agreement
Exhibit J Form of Acknowledgment
Exhibit K Form of Reports
Exhibit L Form of Special 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 (RESERVED)
Exhibit R (RESERVED)
Exhibit S Form of Notice Regarding Transfer to Special Servicing Pursuant to
Section 6.02(a)
Exhibit T Form of Special 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 3.15 or Section 11.14(b)
Exhibit Z Form of REO Account Letter Pursuant to Section 6.09(b)
This Pooling and Servicing Agreement, dated and effective as of
September 1, 1997, among J.P. Morgan Commercial Mortgage Finance Corp, a
Delaware corporation, as Depositor, Midland Loan Services, L.P., a Missouri
limited partnership, as Master Servicer and Special Servicer, LaSalle
National Bank, a nationally chartered bank, as Trustee, and ABN AMRO Bank
N.V., a Netherlands banking corporation, as Fiscal Agent.
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." Two hundred and sixty-nine 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. Eleven
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, Class H,
Class NR-I and Class NR-P 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 6.9520% $134,387,000
------
Class A2 7.0690% $305,885,000
------
Class A3 7.0880% $298,856,000
------
Class B 7.1590% $ 51,687,000
------
Class C 7.2385% $ 56,856,000
------
Class D 7.3510% $ 56,856,000
------
Class E 7.6120% $ 15,506,000
------
Class X (1) (2)
Class F 7.5605% $ 51,688,000
------
Class G 7.2500% $ 36,180,000
------
Class H 7.2500% $ 5,168,000
------
Class NR-I 7.2500% (2)
------
Class NR-P 0% $ 20,678,782
-
Class R-I NA NA
Class R-II NA NA
Class R-III NA NA
- ----------------
(1) The Pass-Through Rate for the Class X Certificates will equal, on each
Distribution Date, the excess of the Weighted Average Remittance Rate
for such Distribution Date over the weighted average of the Pass-Through
Rates on all other Classes of Certificates (other than the Class NR-P
Certificates) immediately prior to such Distribution Date weighted on
the basis of the Class Balance of each such Class (other than the Class
NR-I Certificates which shall be weighted on the basis of the Class
Balance of the Class NR-P Certificates) immediately prior to such
Distribution Date.
(2) Based on the Notional Amount.
As of close of business on the Cut-off Date, the Mortgage Loans had
an aggregate Cut-off Date Balance equal to $1,033,747,782.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and Fiscal
Agent 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 follows in the servicing and administration of mortgage loans,
consistent with the higher of (i) the standard of care, skill, prudence and
diligence with which the Master Servicer services and administers mortgage
loans that are held for other portfolios and are similar to the Mortgage
Loans and (ii) the standard of care, skill, prudence and diligence which the
Master Servicer services and administers mortgage loans that are held for its
own portfolio and are similar to the Mortgage Loans, giving due consideration
to customary and usual standards of practice of prudent institutional
multifamily and commercial mortgage lenders, loan servicers and asset
managers but without regard to:
(i) any relationship that the Master Servicer or any Affiliate of the
Master Servicer may have with any Mortgagor or any Affiliate of any
Mortgagor or any other party to this Agreement;
(ii) the Master Servicer's obligations to make Advances with respect to
the Mortgage Loans;
(iii) the adequacy of the Master Servicer's compensation for its services
hereunder or with respect to any particular transaction;
(iv) the ownership, servicing or management for others by the Master
Servicer of any other mortgage loans or property;
(v) the ownership by the Master Servicer of any Certificates or other
securities; or
(vi) the obligation of the Master 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 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 are 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 Special 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 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.
"Allocation Fraction": For any class of Certificates and any
Distribution Date shall equal a fraction (not greater than one and not less
than zero) (x) the numerator of which is the excess of (a) the Pass-Through
Rate of such class of Certificates over (b) the discount rate used to
calculate the related Net Prepayment Premium and (y) the denominator of which
is the excess of (a) the Mortgage Rate on the related Mortgage Loan over (b)
the discount rate referenced in clause (x) above.
"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": The Distribution Date in
September 2029, 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.
"Auction Closing Date": As defined in Section 7.06.
"Auction Fees": As defined in Section 7.06.
"Auction Valuation Date": As defined in Section 7.06.
"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 (other
than distributions on the Certificates) pursuant to this Agreement, plus any
P&I Advances deposited in the Certificate Account with respect to such
Distribution Date.
"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).
"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 Missouri,
Illinois or New York 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 H, Class NR-I, Class NR-P,
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 "LaSalle National Bank, as
Trustee, in trust for registered holders of J.P. Morgan Commercial Mortgage
Finance Corp., Mortgage Pass-Through Certificates, Series 1997-C5."
"Certificate Balance": With respect to any Class A1, Class A2,
Class A3, Class B, Class C, Class D, Class E, Class F, Class G, Class H or
Class NR-P 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.
None of the Class X, Class NR-I or Residual Certificates 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 H Certificate:" Any of the Certificates issued hereunder
and designated as such.
"Class NR-I Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class NR-P Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class Portion": With respect to any Distribution Date and (a) any
Class of Certificates, other than the Class X, Class NR-I and Class NR-P
Certificates, the product of (x) any U.S. Treasury Net Prepayment Premiums
for such Distribution Date, (y) the related Class Prepayment Fraction for
such Distribution Date and (z) the related Allocation Fraction for such
Distribution Date and (b) the Class NR-I Certificates, the amount calculated
pursuant to clause (a) assuming that such Class has a Class Balance equal to
the Class Balance of the Class NR-P Certificates and a Pass-Through Rate
equal to the Pass-Through Rate on the Class NR-I Certificates, and (c) the
Class X Certificates, the excess of any U.S. Treasury Net Prepayment Premiums
for such Distribution Date over the amounts calculated pursuant to clauses
(a) and (b). The Class NR-P Certificates will not have a Class Portion.
"Class Prepayment Fraction": For any class of Certificates and any
Distribution Date shall equal a fraction the numerator of which is the amount
of principal paid to such class in reduction of the Class Balance thereof on
such Distribution Date and the denominator of which is the amount of
principal paid to all classes of Certificates in reduction of their
respective Class Balances on such Distribution Date.
"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 6.9520% 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 7.0690% 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 7.0880% 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 the excess of the Weighted Average
Remittance Rate for such Distribution Date over 7.1590% 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 the excess of the Weighted Average
Remittance Rate for such Distribution Date over 7.2385% 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 the excess of the Weighted Average
Remittance Rate for such Distribution Date over 7.3510% 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 the excess of the Weighted Average
Remittance Rate for such Distribution Date 7.6120% 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 7.5605% 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 7.2500% 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 HX 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 7.2500% per annum
and a notional amount solely for purposes of calculating interest
thereon equal to the Class Balance of the Class H Certificates
immediately prior to such Distribution Date;
(k) 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 7.25% per annum and
a notional amount solely for purposes of calculating interest
thereon equal to the Class Balance of the Class NR-P 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 Section 225.62 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 (to the extent not included in Clause (A)) 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) the date on which a
receiver is appointed in respect of the related Mortgaged Property, (iii) the
date on which the related Mortgaged Property becomes an REO Property or (iv)
the date on which the payment rate, Mortgage Rate, principal balance,
amortization terms or Maturity Date of such Mortgage Loan has been changed or
otherwise materially modified pursuant to and in accordance with the terms
hereof.
"Collateral Value Adjustment Reduction Amount": With respect to
the Class NR-I 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 the class NR-P Certificates.
"Collection Account": The separate accounts, which shall be
Eligible Accounts, created and maintained for the Mortgage Loans pursuant to
Section 4.02 hereof, which shall be entitled (the servicer), for the benefit
of J.P. Morgan Commercial Mortgage Finance Corp. Mortgage Pass-Through
Certificates Series 1997-C5".
"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.
"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 LaSalle National Bank, 135
South LaSalle Street, Chicago, Illinois 60603, Attention: Asset-Backed
Securities Trust Services--J. P. Morgan 1997-C5.
"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 the related Mortgage Loan to the Depositor, the related Mortgagor or
an Affiliate of any of the foregoing. The initial Custodian shall be LaSalle
National Bank, acting in its capacity as custodian for the Trustee.
"Cut-off Date": September 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": September 29, 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 with 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
fourth Business Day preceding the related 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 or the Special Servicer on behalf of the
Trustee) shall not be considered to Directly Operate an REO Property solely
because the Trustee (or the Master Servicer or the Special Servicer on behalf
of the Trustee) establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such REO Property.
"Disqualified Organization": Any of (i) the United States, any
State or political subdivision thereof, any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (ii) any organization (other than a cooperative described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code unless such organization is subject to the tax imposed by Section
511 of the Code, or (iii) any organization described in Section 1381(a)(2)(C)
of the Code. A corporation will not be treated as an instrumentality of the
United States or of any State or any political subdivision thereof if all of
its activities are subject to tax and, with the exception of the Federal Home
Loan Mortgage Corporation (a corporate instrumentality of the United States)
a majority of its board of directors is not selected by a governmental unit.
"Distribution Date": The fifteenth (15th) day (or if any such day
is not a Business Day, the Business Day immediately succeeding such fifteenth
(15th) 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 of 30 days or more, 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 Service, L.P., then Fitch Investors Service, 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; provided that 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 or a U.S. trust company
subject to regulations regarding fiduciary funds on deposit set
forth in or similar to 12 C.F.R. Section 9.10(b) which, in either
case, has corporate trust powers, acting in its fiduciary capacity
and (i)(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 or 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.;
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(v) the Clean Air Act, 42 U.S.C. Section 7401 et seq.; and
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(vi) the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801 et seq.
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"Escrow Account": Each separate account or subaccount, 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
Master Servicer) for the benefit of J.P. Morgan Commercial Mortgage Finance
Corp. Mortgage Pass-Through Certificates, Series 1997-C5, Account No.
_____________."
"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.
"FDIC": The Federal Deposit Insurance Corporation, or any
successor thereto.
"Final Certification": As defined in Section 2.02(b).
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO 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.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking
corporation, or its successor in interest.
"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.
"Holder" or "Certificateholder": 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.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special
Servicer and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of
the Depositor, the Master Servicer, the Special Servicer or any Affiliate
thereof, and (iii) is not connected with the Depositor, the Master Servicer,
the Special Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing
similar functions.
"Insurance Policy": With respect to any Mortgage Loan, any
insurance policy required to be maintained under this Agreement 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 Amount, 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
and such Class (x) reduced by (i) the product of (a) any excess of Prepayment
Interest Shortfalls for such Distribution Date over the sum of (x) Prepayment
Interest Excess, (y) Prepayment Premiums then available and (z) the amounts
available as a result of an adjustment to the Master Servicer's compensation
pursuant to Section 4.13 and the amount otherwise payable to the related
subservicer, if any, based on the Subservicing Fee Rate, in each case
calculated for the related 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 and Class
NR-I Certificates, any Collateral Value Adjustment Capitalization Amount
allocated to such class and (b) with respect to the Class NR-I Certificates,
any Collateral Value Adjustment Reduction Amount and (y) increased by an
undistributed portion of the Interest Distribution
Amount for the prior Distribution Date plus interest thereon at the related
Pass-Through Rate. 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 related Mortgage Loan Seller, the
Depositor, 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
or the Special 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
September 1, 1997, between MGT and the Depositor relating to the transfer and
assignment of the Mortgage Loans, attached hereto as Exhibit I.
"Loss Mortgage Loan": Any Mortgage Loan (a) as to which a
Liquidation Event has occurred, (b) with respect to which the Master Servicer
or (unless advanced by the Master Servicer) the Special Servicer has
determined that an Advance previously made or proposed to be made is 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 Remittance Date": With respect to each Distribution Date,
one Business Day preceding such Distribution Date.
"Master Servicer": Midland Loan Services, L.P., a Missouri limited
partnership, its successor in interest, or any successor servicer appointed
as such as herein provided.
"Master Servicing Fee": As defined in Section 4.12 hereof.
"Master Servicing Fee Rate": With respect to each Mortgage Loan,
the related rate set forth under "Master Servicing Fee" in the Mortgage Loan
Schedule.
"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.
"Minimum Auction Price": As defined in Section 7.06.
"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 transferred and
assigned to the Trustee for the benefit of the Certificateholders 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
estoppel 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 Loan Seller": Any of MGT, Prudential Securities Credit
Corp. or Smith Barney Mortgage Capital Group, Inc.
"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 absent default.
"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 Master Remittance Date and not previously distributed or applied
to reimburse the Master Servicer with respect to its Master Servicing Fee
over (b) the excess of any Prepayment Interest Shortfall allocated prior to
the related Master 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, the Trustee or the Fiscal Agent, as applicable,
in respect of a Mortgage Loan which together with interest thereon, in the
good faith judgment of such Person, will not, or, in the case of a proposed
Advance, would not, be ultimately recoverable by such Person 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.
"Non-U.S. Treasury Net Prepayment Premium": With respect to any
Distribution Date, any Net Prepayment Premiums for such Distribution Date
which are not U.S. Treasury Net Prepayment Premiums.
"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, and with respect to the Class
NR-I Certificates and any Distribution Date, the Class Balance of the Class
NR-P 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 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 and any
Class, other than the Residual Certificates, a per annum rate equal to 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
- -------- -------
(v) if 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) if 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
thereon 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) if
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.
"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 Seller": Each of Prudential Securities Credit Corp. and
Smith Barney Mortgage Capital Group, Inc.
"Prime Rate": As of any day, the per annum rate reported in The
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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 (xx) 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 (e) 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 X, Class F, Class G, Class H,
Class NR-I, Class NR-P, 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, maintain, preserve or
protect 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 (other than Advances with respect to
interest included in clause (i)) 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 authorized and, if required, licensed in such state to
transact the applicable insurance business and to write the
insurance provided; and
(ii) whose claims paying ability is rated not less than the lower
of (x) "A-" or "A3" and (y) one rating category below the
highest rating for the outstanding Certificates, but not less
than "BBB" or "Baa2", as
applicable, by each Rating Agency (or, if not rated by Fitch
Investors Service, L.P., the other Rating Agencies);
(iii) with respect to any insurance required pursuant to Section
6.03(b), duly qualified as such under the laws of the state in
which the related Mortgaged Property is located; 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
Mortgage Loan) 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 Mortgage Loan) 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 (including any REO Mortgage Loan) 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 (including any REO Mortgage
Loan) 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
(including any REO Mortgage Loan) 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.
"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 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 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 two hundred and
sixty-nine interests with a principal balance and interest rate equal to that
of one of the Mortgage Loans.
"REMIC II": A segregated pool of assets consisting of two hundred
and sixty-nine 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, Uncertificated Interest X and Uncertificated
Interest XI.
"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, Uncertificated Interest X and
Uncertificated Interest XI.
"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. 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 Trust Fund 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 6.16.
"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 Asset-Backed Securities Trust Services
Group 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 Monthly Payments 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 on or before the last day
of 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.
"Servicer": The Master 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 Fee": With respect to any Mortgage Loan the sum of the
Master Servicing Fee, the fee payable to the Special Servicer pursuant to
Section 6.13 and the fee payable to the related subservicer, if any.
"Servicing Fee Rate": With respect to any Mortgage Loan, shall
equal the per annum rate set on the Mortgage Loan Schedule under the caption
"Total Fee".
"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 Special
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 Mortgaged Property is transferred and an assumption agreement
pursuant to Section 4.08 cannot be entered into.
"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": Midland Loan Services, L.P., a Missouri
limited partnership, 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, Missouri and
Illinois 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 (provided
that the Trustee shall have no obligation to seek or pay for any such Opinion
of Counsel), 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.
"Subservicing Fee Rate": With respect to any Mortgage Loan subject
to a subservicing agreement pursuant to Section 3.13, the excess of the
related Servicing Fee Rate over the sum of the Master Servicing Fee Rate and
0.0045%.
"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": LaSalle National Bank, a nationally chartered bank or
its successor in interest in its capacity as Trustee hereunder, or any
successor trustee appointed as herein provided.
"Trustee Fee": The fee payable to the Trustee in accordance with
Section 11.08(a).
"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 H Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XI": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class NR-P Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Underwriter": Any of J.P. Morgan Securities Inc., Prudential
Securities Incorporated or Smith Barney 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
(except in the case of a partnership, to the extent provided in regulation
under the Code), or an estate 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, or a trust as defined in Section7701(a)(30) of the
Code.
"U.S. Treasury Net Prepayment Premium": With respect to any
Distribution Date, any Net Prepayment Premiums for such Distribution Date
calculated under the related Mortgage Loan Documents by reference to a U.S.
Treasury rate.
"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, Class G, Class H, Class NR-P Certificates in proportion to the
respective Class Balances (provided that, any Voting Rights so allocated to
the Class NR-P Certificates shall be allocated 50% to the Class NR-P
Certificates and 50% to the Class NR-I Certificates), 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.
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.
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
identified on the Mortgage Loan Schedule (the "Mortgage Loans") and all other
assets included or to be included in the Trust Fund, to be held in trust for
the benefit of the Certificateholders. 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 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: "LaSalle
National Bank, as Trustee for J.P. Morgan Commercial Mortgage
Finance Corp. Mortgage Pass-Through Certificates Series 1997-
C5", in recordable form;
(v) assignments in recordable form 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: "LaSalle National Bank, as
Trustee for J.P. Morgan Commercial Mortgage Finance Corp.
Mortgage Pass-Through Certificates Series 1997-C5";
(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;
(viii) with respect to any Mortgage Loan secured by a leasehold
interest, a certified copy of the related ground lease and any
amendments and modifications thereto;
(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; and
(xi) an escrow, guarantee and environmental liability agreement, if
any.
(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:
"LaSalle National Bank, as Trustee for J.P. Morgan Commercial Mortgage
Finance Corp. Mortgage Pass-Through Certificates Series 1997-C5" prior to
recording. Each such assignment shall reflect that it should be returned by
the public recording office following recording to LaSalle National Bank 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, the
provisions of this Section 2.02 and any exceptions noted on a schedule of
exceptions provided to the Depositor on or prior to the Delivery Date 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, subject to any exceptions identified in an exception report
delivered with the Final Certification. 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 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 and not subject to the servicing terms
hereof. It is understood and agreed that the obligation of the Depositor to
so cure or purchase any Mortgage Loan as to which a material defect in or
omission of a constituent document exists shall constitute the sole remedy
respecting such defect or omission available to Certificateholders or the
Trustee on behalf of the Certificateholders.
SECTION 2.03 Representations and Warranties of the Depositor, the
Master Servicer and the Special Servicer; Assignment of
Rights.
(a) The Depositor hereby represents and warrants to and covenants
with the Trustee, the Fiscal Agent, the Master Servicer, and the Special
Servicer, as of the Delivery Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
(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 Fiscal Agent, the Master Servicer
and the Special Servicer, constitutes a valid, legal and
binding obligation of the Depositor, enforceable against the
Depositor in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, or any of
the provisions of any indenture, mortgage, contract,
instrument, or other document to which such Depositor is a
party or by which it is bound, or result in the creation or
imposition of any lien, charge, or encumbrance upon any of its
property pursuant to the terms of any such indenture,
mortgage, contract, instrument, or other document which
violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either
the ability of the Depositor to perform its obligations under
this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other
than any such approvals as have been obtained, and is not
subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
(vii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor
which, if determined adversely to the Depositor, would
prohibit the Depositor from entering into this Agreement
or, in the Depositor's good faith reasonable judgment, is
likely to materially and adversely affect either the
ability of the 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 Fiscal Agent, 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, will (a) 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 Servicing Fee
-------------
payable to it with respect to each Mortgage Loan is reasonable compensation
for its services hereunder and that the entire Servicing Fee payable to it
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) Subservicing Agreements. The terms of any subservicing
-----------------------
agreement entered into pursuant to Section 3.13 shall be in all material
respects consistent with the terms of this Agreement.
(viii) 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
(ix) Financial Condition. Such Servicer's net worth, determined
-------------------
in accordance with GAAP, is at least equal to fifteen million dollars
($15,000,000) and such Servicer has sufficient liquidity to meet all of its
obligations (including any obligation to make Advances) hereunder;
(c) In addition, Midland Loan Services, L.P., as a condition to
the consummation of the transaction contemplated herein, hereby represents
and warrants to the
Trustee, the Fiscal Agent and the Depositor that as of the Delivery Date, (i)
it is a limited partnership duly organized, validly existing and in good
standing under the laws of the State of Missouri; and (ii) has received a
favorable rating by Standard & 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) The Depositor, as assignee of MGT under the Loan Sale
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.
(e) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall survive the execution and
delivery of this Agreement, and shall inure to the benefit of the Persons for
whose benefit they were made for so long as the Trust Fund remains in
existence. Upon discovery by the Depositor, the Master Servicer, the Special
Servicer or the Trustee of any breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the other parties.
SECTION 2.04 Repurchase of Mortgage Loans for Breaches of 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, 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(d) 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 Trust Fund 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
Trust Fund 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 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,
and the Special Servicer, as applicable, 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 or in the Loan Sale
Agreement.
SECTION 2.05 Execution of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the Loan Sale 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 Trustee, the Fiscal Agent, the other Servicer, 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
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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 Fiscal Agent, the other 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 and the Trustee, 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 and the Trustee 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 agreements 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 the assertion of the
management of such Servicer that it maintained an effective internal control
system over servicing of mortgage loans is fairly stated in all material
respects, based upon established criteria and meets the standards applicable
to accountants' reports intended for general distribution.
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 a limited partnership, an association or
corporation under the laws of the state of its organization except as
permitted in this Section 3.04 and shall obtain and preserve its
qualification to do business 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
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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 nor any general partner 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
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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
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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,
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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
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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.
Except as set forth in 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 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
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. The Master Servicer may resign subject to the requirements set
forth below in this Section 3.06; provided that 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. All costs associated with such
resignation shall be borne by the resigning Servicer and shall not be an
expense of the Trustee.
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 issued by
a Qualified Insurer covering such Servicer's officers and employees 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 Trustee, each
Servicer shall furnish 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 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
Fiscal Agent, the other Servicer and the Trust Fund 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, the failure of such Servicer to perform its duties and to service
the Mortgage Loans in accordance with the terms of this Agreement or actions
taken by such Servicer pursuant to a
power of attorney granted in accordance with Section 4.01(b) or arising out
of the Servicer's willful misfeasance, bad faith or negligence.
(b) Each Servicer and its respective officers, directors,
employees, general partner and agents 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) 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
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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 Trustee
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, the Trustee or the Fiscal Agent. 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 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, Section 6.16 or Section 12.01 hereof shall not affect any claims that
the Trustee, the Fiscal Agent or any Servicer may have against the Trustee,
the Fiscal Agent 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 and (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.
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 two hundred and sixty-nine
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, Class H, Class NR-I and
Class NR-P 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.
This grant of power of attorney is coupled with an interest and is therefore
properly irrevocable.
(e) The Trustee shall prepare or cause to be prepared all of the
Tax Returns that it reasonably determines are required with respect to either
REMIC I, REMIC II or REMIC III created hereunder and shall sign and file such
Tax Returns in a timely manner. The expenses of preparing such returns shall
be borne by the Trustee without any right of reimbursement therefor.
(f) The Trustee shall provide (i) to any Transferor of a Class R-
I, Class R-II or Class R-III Certificate such information as is necessary for
the application of any tax relating to the transfer of a Class R-I, Class R-
II and Class R-III Certificate to any Person who is not a Permitted
Transferee, (ii) to the Certificateholders such information or reports as are
required by the Code, the REMIC Provisions or State Tax Laws including
reports relating to interest, original issue discount and market discount or
premium (using the Prepayment Assumption) and (iii) to the Internal Revenue
Service the name, title, address and telephone number of the person who will
serve as the representative of each of REMIC I, REMIC II and REMIC III.
(g) The Trustee shall take such actions and shall cause each of
REMIC I, REMIC II and REMIC III created hereunder to take such actions as are
reasonably within the Trustee's control and the scope of its duties more
specifically set forth herein as shall be necessary to maintain the status
thereof as REMICs under the REMIC Provisions (and the Master Servicer shall
assist the Trustee, to the extent reasonably requested by the Trustee to do
so). None of the Master Servicer, the Special Servicer or the Trustee shall
knowingly or
intentionally take any action, cause either of REMIC I, REMIC II or REMIC III
to take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of either REMIC I, REMIC II or
REMIC III as a REMIC or (ii) result in the imposition of a tax under the
REMIC Provisions 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
860G(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 the
Distribution Date in September 2029, 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 Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for REMIC I, REMIC II and REMIC III.
(n) None of the Trustee, the Master Servicer or the Special
Servicer shall sell or dispose of any of the Mortgage Loans (except in
connection with (i) the default, imminent default or foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgage Property acquired by deed in lieu of foreclosure, (ii) the
bankruptcy of REMIC I, REMIC II and REMIC III, (iii) the termination of REMIC
I, REMIC II and REMIC III pursuant to Article XI of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II of this agreement) nor
acquire any assets for REMIC I, REMIC II and REMIC III, nor sell or dispose
of any investments in the Collection 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.
SECTION 3.12 Notices to Mortgagors.
The Master Servicer shall, within five (5) Business Days of the
Delivery Date for any Mortgage Loan, send by first class mail or by hand
delivery written notice to the related Mortgagor that the Master Servicer has
been engaged to service such Mortgage Loan, which notice shall direct such
Mortgagor to make further payments and to send all future notices with
respect to such Mortgage Loan directly to the Master Servicer.
Notwithstanding the foregoing, the Master Servicer shall not be required to
send such notice with respect to any given Mortgage Loan if the Master
Servicer was the servicer of such Mortgage Loan prior to the Delivery Date or
if the Mortgage Loans shall be subserviced pursuant to Section 3.13 by a
subservicer which was the servicer of such Mortgage prior to the Delivery
Date, and there is no change in where the Mortgagor is required to send
payments under the Mortgage Loan.
SECTION 3.13 Subservicing.
The Master Servicer and the Special Servicer may enter into
subservicing agreements with one or more subservicers (including subsidiaries
or affiliates of the Servicer or the Depositor) for the servicing and
administration of the Mortgage Loans. Any such subservicer shall be entitled
to a subservicing fee calculated based on the Subservicing Fee Rate.
References in this Agreement to actions taken or to be taken by the Master
Servicer or the Special Servicer in servicing the Mortgage Loans include
actions taken or to be taken by a subservicer on behalf of such Master
Servicer or Special Servicer.
Notwithstanding any subservicing agreement, any of the provisions
of this Agreement relating to agreements or arrangements between either
Servicer and a subservicer or reference to actions taken through such Persons
or otherwise, such Servicer shall remain obligated and liable to the Trustee,
the Fiscal Agent and Certificateholders for the servicing and administering
of the Mortgage Loans in accordance with the provisions of this Agreement
without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements, or by virtue of indemnification from
a subservicer, and to the same extent and under the same terms and conditions
as if such Servicer alone were servicing
and administering the Mortgage Loans. Each Servicer shall be entitled to
enter into any agreement with a subservicer for indemnification of such
Servicer and nothing contained in this Agreement shall be deemed to limit or
modify such indemnification.
Any subservicing agreement that may be entered into and any other
transactions or servicing arrangements relating to the Mortgage Loans
involving a subservicer shall be deemed to be between the subservicer and the
related Servicer, and none of the Trustee, the Fiscal Agent the
Certificateholders nor the Depositor shall be deemed parties thereto and none
of such Persons shall have claims or rights (except as specified below), nor
obligations, duties or liabilities with respect to the subservicer; provided,
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that the Trustee and the Certificateholders may rely upon the representations
and warranties of the subservicer contained therein and each of the Trustee
and the Depositor shall be a third party beneficiary of the covenants and
other provisions setting forth obligations of the subservicer therein.
If the Trustee or any successor Servicer assumes the obligations of
the Master Servicer or the Special Servicer, as applicable, in accordance
with this Agreement, the Trustee or such successor Servicer may, at its
option, (i) terminate any subservicing agreement entered into by the Master
Servicer or Special Servicer pursuant to this Section 3.13 or (ii) succeed to
all of the rights and obligations of the Master Servicer or Special Servicer
under any subservicing agreement, and any such subservicing agreement shall
provide such right of termination or succession to the Trustee or such
successor Servicer. Notwithstanding the foregoing, neither the Trustee nor a
successor Servicer may terminate any such subservicing agreement, unless
otherwise permitted thereunder, unless it shall have been determined that the
related subservicer is not acceptable to the Rating Agencies or the
Depositor. In such event, the Trustee or such successor Servicer shall be
deemed to have assumed all of the interest of the Master Servicer or Special
Servicer therein (but not any liabilities or obligations in respect of acts
or omissions of the Master Servicer or Special Servicer prior to such deemed
assumption) and to have replaced the Master Servicer or the Special Servicer,
as applicable, as a party to such subservicing agreement to the same extent
as if such subservicing agreement had been assigned to the Trustee or such
successor Servicer, except that the Master Servicer or the Special Servicer
shall not thereby be relieved of any liability or obligations under such
subservicing agreement that accrued prior to the assumption of duties
hereunder by the Trustee or such successor Servicer.
No subservicer may modify the terms of a Mortgage Loan or initiate
foreclosure proceedings with respect to any Mortgaged Property without the
approval of the Special Servicer. In the event that the Trustee or any
successor Servicer assumes the servicing obligations of the Master Servicer
or the Special Servicer, as applicable, upon request of the Trustee or such
successor Servicer, the Master Servicer or Special Servicer shall, at its own
expense, promptly deliver to the Trustee or such successor Servicer all
documents and records relating to any subservicing agreement and the Mortgage
Loans then being serviced thereunder, and the Servicer will otherwise use its
best efforts to effect the orderly and efficient transfer of any subservicing
agreement to the Trustee or such successor Servicer.
SECTION 3.14 Record Title to Mortgage Loans, Etc.
No Servicer shall hold record title to any Mortgage or any Mortgage
Note.
SECTION 3.15 Release of Documents and Instruments of Satisfaction.
The Trustee may, subject to the terms hereof, upon receipt of a
Request for Release and Receipt of Documents provided by any Servicer
substantially 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, such Mortgage Loan File and the documents contained therein
shall be held by the Servicer in trust for the benefit of the
Certificateholders.
Subject to any state law requirement or court order, each Servicer
hereby agrees to return to the Trustee 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, unless the
related Mortgage Loan shall be liquidated or paid in full, in which case,
upon receipt of the Request for Release and Receipt of Documents from either
Servicer, the Trustee may release the related Servicer's prior request form,
together with all other documents still retained by the Trustee with respect
to such Mortgage Loan, to such Servicer.
Upon receipt of the payment in full of any Mortgage Loan, or upon
the receipt by the Master 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 Trustee a Request for Release and
Receipt of Documents in the form set forth on Exhibit S requesting delivery
to such Servicer of the Mortgage Loan File for such Mortgage Loan and
indicating that all amounts received in connection with such payment that are
required to be deposited in the Collection Account pursuant to Section 4.02
hereof have been or will be so deposited.
The Master Servicer and the Special Servicer shall forward to the
Trustee 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
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Trustee 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 Trustee 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.
Upon any payment in full of a Mortgage Loan, the Master 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 Trustee of an instrument of
satisfaction described above as soon as practicable.
ARTICLE IV
MASTER SERVICING
SECTION 4.01 The Master Servicer.
(a) The Master Servicer shall service and administer each Mortgage
Loan (except as such obligations may be assigned to the Special Servicer
pursuant to Article VI hereof) on behalf of the Trust Fund and in the best
interests of and for the benefit of the Certificateholders in accordance with
the terms of this Agreement, the terms of the respective Mortgage Loans and
Accepted Servicing Practices.
(b) Subject to Accepted Servicing Practices and the terms of this
Agreement and of each Mortgage Loan, the Master 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 Mortgage Loan which is
not a Specially Serviced Mortgage Loan. Without limiting the generality of
the foregoing, the Master Servicer shall, and is hereby authorized and
empowered with respect to each 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. The Master Servicer shall service and administer
each 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, the Master Servicer shall
service and administer each 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. The Master Servicer may from time to time
obtain from the Trustee any powers of attorney and other documents necessary
or appropriate to enable such Master Servicer to carry out its servicing and
administrative duties hereunder. 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 (other than the
portion thereof relating to Escrow Payments), the related Maturity Date, the
related Mortgage interest rate or the related amortization schedule. The
Master Servicer shall prepare for signature by the Trustee 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) The Master Servicer assumes, with respect to each Mortgage
Loan (except as otherwise set forth in Article VI and this Section 4.01(c)),
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 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 Mortgage Loans (provided that such expenses are
reasonable);
(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 Master 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 the Master Servicer determines that any such payments have not been made
by the related Mortgagor, the Master Servicer shall make a Servicing Advance
to effect timely payment of all such expenses (in the case of those set forth
in clause (ii) above, before they become delinquent) if the Master 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, the Master 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. The Master Servicer shall make
such Servicing Advances with respect to Mortgage Loans from its own funds to
effect such payments only 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, the Master Servicer shall be entitled to reimbursement of such costs
as Servicing Advances only to the extent expressly provided in this
Agreement. If the Master Servicer determines with respect to any 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
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,
the Master 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
Mortgage Loan.
(d) Upon the occurrence of a Servicing Transfer Event with respect
to a Mortgage Loan, the Master Servicer shall effect the timely and efficient
transfer of its servicing responsibilities to the Special Servicer.
(e) Unless the Master 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 Special 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 the Master Servicer.
(f) The Master Servicer shall, have no responsibility for the
performance by the Special Servicer of its duties hereunder, provided that
the Master Servicer shall continue certain servicing and reporting functions
with respect to Specially Serviced Mortgage Loans as set forth in this
Agreement.
SECTION 4.02 Collection Account; Collection of Certain Mortgage Loan
Payments.
(a) Subject to Article VI, from the date hereof until the
principal and interest on the Mortgage Loans are paid in full, the Master
Servicer shall proceed diligently to collect all payments called for under
the terms and provisions of the Mortgage Loans, and shall follow such
collection procedures as it would follow with respect to mortgage loans
comparable to the Mortgage Loans and held for other portfolios, except that
to the extent that the Master Servicer does not service and administer
similar mortgage loans for others, then the Master 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, and as necessary thereafter,
the Master Servicer shall establish, and hereby agrees to maintain for the
duration of this Agreement, the Collection Account. The Collection Account
shall be an Eligible Account. The Collection Account shall relate solely to
collections with respect to Mortgage Loans, and funds in the 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 deposit, within one Business Day following receipt, all
collections with respect to the Mortgage Loans received by it into the
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. The Master Servicer shall, within five (5) Business Days of
the establishment
thereof, notify the Trustee and the Special Servicer in writing of the
location and account number thereof and shall give the Trustee and the
Special Servicer written notice of any change of such location or account
number on or prior to the date of such change. Funds in the Collection
Account may be invested by, at the risk of, and for the benefit of, the
Master 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 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
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 Master Remittance
Date after the occurrence of such loss.
(c) The Master Servicer shall deposit the following amounts,
without duplication, into the Collection Account:
(i) all payments on account of principal, including amounts
required to be deposited therein pursuant to Section 2.04 or
Section 4.06(c)(iii) hereof, and Principal Prepayments, on the
Mortgage Loans;
(ii) all payments on account of interest (including default
interest) on the Mortgage Loans (including amounts required to
be deposited therein pursuant to Section 2.04 or Section
4.06(c)(iii) hereof);
(iii) all Liquidation Proceeds, Excess Condemnation Proceeds
and Excess Insurance Proceeds with respect to the
Mortgaged Properties;
(iv) out of such Master Servicer's own funds, an amount
representing net losses realized on Permitted Investments with
respect to funds in such Collection Account pursuant to
Section 4.02(b);
(v) any amounts representing Prepayment Premiums paid by the
Mortgagors;
(vi) any amounts received from the Special Servicer pursuant to
Section 6.10(b);
(vii) any other amounts received from the Mortgagors with
respect to the Mortgage Loans; and
(viii) any amounts received from the Special Servicer under
Section 6.08 hereof;
but excluding (1) REO Proceeds (except as provided in clause (viii)), (2)
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amounts representing fees or late charge penalties or modification fees,
assumption fees, extension fees, NSF check charges and similar fees and
charges payable by Mortgagors with respect to the Mortgage Loans which are
not Specially Serviced Mortgage Loans or REO Mortgage Loans, which may be
retained by such Master Servicer as additional servicing compensation
hereunder, (3) any amounts received from a Mortgagor to reimburse such Master
Servicer, pursuant to the terms of the Mortgage Loan, for costs incurred in
connection with the preparation of a Property Inspection Report, (4) Escrow
Payments and (5) any fees payable to the related subservicer at the related
Subservicing Fee Rate.
(d) All funds deposited by the Master Servicer in the related
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 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) The Master 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 Collection Account or
any related Escrow Account.
SECTION 4.03 Permitted Withdrawals from the Collection Account.
(a) The Master Servicer may make withdrawals from the 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 the Collection Account and
not required to be deposited therein;
(ii) on each Master Remittance Date, from amounts on deposit in the
Collection Account representing payments by a Mortgagor of
interest or principal or Liquidation Proceeds, Excess
Insurance Proceeds and Excess Condemnation Proceeds and REO
Proceeds with respect to a Mortgage Loan and proceeds from the
repurchase of a Mortgage Loan pursuant to the terms hereof, to
pay to itself the Master Servicing Fee and to pay the Special
Servicer the Special Servicing Fee, if applicable;
(iii) to reimburse the Fiscal Agent, the Trustee, itself and
the Special Servicer, in that order, for previously
unreimbursed P&I Advances from any amounts on deposit in
such account, together with accrued and unpaid interest
at the Advance Rate pursuant to Sections 4.05(c) and
6.10, respectively, the right to withdraw amounts
pursuant to this
subclause (iii) being limited to amounts on deposit in the
Collection Account in respect of Liquidation Proceeds, Excess
Insurance Proceeds, REO Proceeds and Excess Condemnation
Proceeds with respect to the Mortgage Loan and proceeds from
the repurchase of a Mortgage Loan pursuant to the terms hereof
with respect to the Mortgage Loan with respect to which such
P&I Advance was made or the related Mortgaged Property, and
any other amounts received on such 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 or the
REO Account pursuant to Section 6.10 hereof, to reimburse the
Fiscal Agent, the Trustee, itself 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 in accordance with the
provisions of Section 4.10 hereof) together with accrued and
unpaid interest at the Advance Rate pursuant to Sections
4.05(c) and 6.10, respectively, the right to withdraw amounts
pursuant to this subclause (iv) being limited to amounts on
deposit in the Collection Account in respect of Liquidation
Proceeds, Excess Insurance Proceeds, REO Proceeds and Excess
Condemnation Proceeds with respect to such Mortgaged Property
or proceeds from the repurchase of a Mortgage Loan pursuant to
the terms hereof with respect to such Mortgaged Property, and
any other amounts received with respect to the Mortgage Loan
including late recoveries of payments with respect to which
such Servicing Advances were made;
(v) to reimburse the Fiscal Agent, the Trustee and itself, in that
order, from amounts received from the Special Servicer
pursuant to Section 6.10(b) for any Advances, together with
accrued and unpaid interest at the Advance Rate pursuant to
Section 4.05, with respect to any Specially Serviced Mortgage
Loan which remain unreimbursed;
(vi) on each Master Remittance Date, to pay the Fiscal Agent, the
Trustee, 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 Mortgage Loan
from any amounts on deposit in the Collection Account, to the
extent not otherwise offset by default interest collected on
the Mortgage Loan;
(vii) on each Master Remittance Date, to reimburse the Fiscal
Agent, the Trustee, itself and the Special Servicer, in
that order, from any
amounts on deposit in the 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
Mortgagors under the terms of the related Mortgage Loan
Documents, in each case, together with interest at the Advance
Rate pursuant to Sections 4.05(c) and 6.10, respectively, made
with respect to the Mortgage Loans;
(viii) on each Master Remittance Date, to pay itself any
reinvestment income on amounts on deposit in the
Collection Account to which it is entitled pursuant to
Section 4.02(b);
(ix) on each Master Remittance Date, to make remittances to the
Trustee pursuant to Section 4.04 hereof; and
(x) to clear and terminate the 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 Collection Account and determining any
shortfall or overpayment of any amounts due from or on behalf of any
Mortgagor or Mortgaged Property.
SECTION 4.04 Remittances to the Trustee.
(a) On each Master Remittance Date, the Master Servicer shall (1)
withdraw from the Collection Account and remit to the Trustee for deposit
into the Certificate Account, by wire transfer of immediately available
funds, all amounts on deposit in the Collection Account as of the related
Determination Date minus:
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(i) any permitted charges against or withdrawals from the
Collection Account pursuant to clauses (i) through (viii) of
Section 4.03(a) hereof; and
(ii) any amounts on deposit in the Collection Account representing
a Monthly Payment due on a Due Date following the Collection
Period for such Master Remittance 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, other than
those representing Escrow Payments, shall be remitted pursuant
to this Agreement on the Master Remittance Date immediately
following the Collection Period in which such Monthly Payment
was due),
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 4.05(a). If the Trustee
fails to receive by 2:00 p.m., Chicago time on the Master Remittance Date any
or all of the amounts required by this clause (a), the Trustee shall
immediately notify the Master Servicer of such failure.
(b) With respect to any Master Servicer remittance received by the
Trustee after the Master Remittance Date, the Master Servicer shall pay to
the Trustee interest on such amount until paid at the Advance Rate. Such
interest shall be deposited into the Certificate Account by the Master
Servicer on the date such late payment is made and shall cover the period
commencing with the day following the Master Remittance Date and ending with
the Business Day on which such payment is made, both inclusive. The payment
by the Master Servicer of any such interest shall not be deemed an extension
of time for payment or a waiver of any Event of Default.
(c) The Master Servicer shall provide any beneficial owner of a
Certificate information requested thereby with respect to the calculation of
any Prepayment Premium on a prepaying Mortgage Loan.
SECTION 4.05 Master 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
Mortgage Loan other than a Specially Serviced Mortgage Loan has not been
received by the Master Servicer, the Master Servicer shall remit to the
Trustee on the Master Remittance Date, for deposit into the Certificate
Account, a P&I Advance in an amount equal to the excess of such Monthly
Payment net of any Escrow Payment component and net of an amount
corresponding to the related Servicing Fee over the amount received;
provided, however, that the Master Servicer shall not be required to make a
Nonrecoverable Advance and, provided further, that the Master Servicer shall
not be required to make more than two consecutive P&I Advances which have not
been reimbursed for any Mortgage Loan and the Master 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 the Master
Servicer determines that a P&I Advance is required, it shall on such Master
Remittance Date remit to the Trustee for deposit in the Certificate 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) before deduction for
reductions in P&I Advances pursuant to this Section 4.05. Any funds being
held in the Collection Account for future distribution and so used shall be
replaced by the Master Servicer from its own funds (or from receipts on
Mortgage Loans against which such P&I Advance was made) by deposit in such
Collection Account on or before any future
Master Remittance Date to the extent that funds in such Collection Account on
such Master Remittance Date shall be less than payments to the Trustee
required to be made on such date. If the Master 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 Trustee a Nonrecoverable Advance Certificate.
(b) The Master Servicer shall determine on each Business Day
whether amounts are available in the Collection Account or Escrow Account to
reimburse any Servicer for unreimbursed Advances made pursuant to this
Agreement. Subject to Section 6.02(f), the Master 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), and shall
reimburse the Fiscal Agent, the Trustee, itself and the Special Servicer, in
that order, on each Business Day.
(c) The Fiscal Agent, the Trustee and 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 Person
making such Advance is reimbursed for such Advance as provided in this
Agreement.
SECTION 4.06 Escrow Accounts.
(a) On or before the Delivery Date, the Master 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 Mortgage Loans, and funds in
each such subaccount in the Escrow Account shall be held by such Master
Servicer for the benefit of the Certificateholders and the related Mortgagors
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 and the Special Servicer in writing of the location and account
number of each subaccount in the Escrow Account and shall give the Trustee
and the Special Servicer written notice of any change of such location or
account number on or prior to the date of such change. The Master 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 Mortgage
Loan and (ii) any related Insurance Proceeds or Condemnation Proceeds. In
addition, if the amounts in any subaccount of the Escrow Account are invested
for the benefit of the Master Servicer, such Master 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, the
Master 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 Master 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 the 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 Master Servicer or the
Special Servicer, to reimburse 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(c) and 6.10(d), 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 Master 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 the Master Servicer shall not be required to make a Nonrecoverable
Advance.
(e) The Master 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. The Master 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.
The Master Servicer shall make such Servicing Advances until a Mortgage Loan
becomes a Specially Serviced Mortgage Loan and shall be entitled to
reimbursement therefore pursuant to Section 4.03(a) or Section 4.06(c).
SECTION 4.07 Maintenance of Insurance.
(a) The Master Servicer shall cause to be maintained for each
related Mortgaged Property all insurance required by the terms of the related
Mortgage Loan Documents; provided, that insurance in the amount required
above is available at a commercially reasonable cost. 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 lesser of (a) the replacement
cost of the improvements which are a part of such property and (b) the unpaid
principal balance on such Mortgage Loan. 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 Master
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 Master 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 Master 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.
The Master 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 Master 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.
(c) With respect to any insurance required to be maintained
pursuant to this Section 4.07, each Master 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 Master 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 Mortgage Loan contains an enforceable
"due-on-sale" or "due-on-encumbrance" clause, the Master Servicer shall
enforce, and shall not waive, such clause. If the Master Servicer is unable
to enforce any such "due-on-sale" clause or if no "due-on-sale" clause is
applicable, the Master 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. The Master 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 Mortgage Loan.
(b) To the extent any 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 Master 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
Master 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.
The Master 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 Mortgage Loan.
(c) The Master 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 Master Servicer shall
forward to the Custodian the original substitution or assumption agreement
and shall forward to the Trustee a copy of such substitution or assumption
agreement.
(e) Notwithstanding the foregoing or any other provision of this
Agreement, the Master 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
Mortgage Loan by operation of Law that the Master Servicer in good faith
determines it may be restricted by Law from preventing. The Master Servicer
shall deliver prompt written notice to the Trustee of any such determination
or assumption.
(f) The Master Servicer shall notify each Rating Agency if it
shall have actual knowledge that such assumption results in any Mortgagor
representing more than 5% of the Mortgagors by outstanding principal balance
of the Mortgage Loans.
SECTION 4.09 Review of Property Inspections, Operating Statements and
Rent Rolls.
(a) The Master 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 Trustee at
such times and in such manner as are consistent with Accepted Servicing
Practices; provided that (i) each Mortgaged Property securing a Mortgage Loan
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with an outstanding principal balance in excess of $2,000,000 and each
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 Mortgage Loan shall be inspected and a Property Inspection Report
shall be delivered at least once every two years.
(b) The Master 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
Mortgage Loan for compliance with any covenants contained in the related
Mortgage Loan Documents.
SECTION 4.10 Reports of the Master Servicer.
(a) The Master Servicer shall prepare, or cause to be prepared,
and deliver to the Trustee and Special Servicer (with respect to Specially
Serviced Mortgage Loans), in an electronic format reasonably acceptable to
the Trustee, consistent with Accepted Servicing Practices and convertible to
EDGAR format, not later than (i) the third (3rd) Business Day immediately
preceding each Distribution Date, a copy of a report specifying the total
amount to be remitted by the Master Servicer on the related Master Remittance
Date and identifying the amounts thereof and (ii) the second (2nd) Business
Day immediately preceding each Distribution Date, a copy of a Remittance
Report in the form of Exhibit O hereto, (including
the information required pursuant to Section 7.04) and a copy of a Detailed
Loan Indicative Data File in the form of Exhibit P 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.
(b) The Master Servicer shall upon the Trustee's reasonable
request, provide such other customary information as is necessary for the
Certificateholders to prepare their federal, state and local income tax
returns.
(c) The Master Servicer shall prepare and distribute all
information statements relating to payments on the Mortgage Loans in
accordance with all applicable federal and state laws and regulations. Upon
prior written request of the Trustee, the Master Servicer shall prepare such
other reports as may be reasonably requested in writing by the Trustee. The
Master Servicer shall be entitled to charge a reasonable fee reflecting the
internal and external costs to such Master Servicer of preparing such other
reports and such fee shall be reimbursable to such Master Servicer as a
Servicing Advance and shall be reimbursed as provided in this Agreement.
SECTION 4.11 Confirmation of Balloon Payment.
The Master Servicer shall send a letter by first class mail to each
related Mortgagor on a Balloon Mortgage Loan not earlier than twelve (12)
months and at least six (6) months prior to the related Maturity Date
reminding such Mortgagor of such Maturity Date and requesting that not later
than ninety (90) 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.
SECTION 4.12 Master Servicer Compensation.
The Master Servicer shall be entitled to a fee (the "Master
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Servicing Fee"), with respect to each Mortgage Loan that shall be equal to
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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. 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 4.03(a)(ii) hereof. The Master 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.
SECTION 4.13 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 the sum of any Prepayment Interest Excess
and any Prepayment Premiums available 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 4.03(a)(ix).
SECTION 4.14 Implementation of Operations and Maintenance Plans.
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 use reasonable efforts to enforce
any such plans in accordance with the terms of the Mortgage Loan Documents.
SECTION 4.15 Dissemination of Information.
The Master Servicer may disseminate the information provided under
Section 7.03(a).
ARTICLE V
(RESERVED)
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 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 Master 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 Master Servicer shall notify the Trustee, the Depositor
and the Special Servicer as promptly as practicable by telephone and in an
electronic format reasonably acceptable to the Trustee after it becomes aware
of (i) any facts or circumstances that might result in any 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 Master Servicer shall provide to the
Trustee, the Depositor and the Special Servicer as promptly as practicable
after request any additional information reasonably requested thereby with
respect to such Mortgage Loan.
(b) Unless the Master 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 Special
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 Master 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 Master 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 Mortgage Loan with respect to which notice
is required to be delivered pursuant to clause (a) above. The
Master 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 and prior to the
restoration of the related Mortgage Loan pursuant to Section 6.12 to standard
servicing, the Master Servicer shall not have any further dealings or
communications with the related Mortgagor except as administrator of the
Collection Account and Escrow Account. The Master Servicer shall maintain
up-to-date information on each Mortgage Loan which becomes a Specially
Serviced Mortgage Loan in order to properly administer the 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 hereof. The Special Servicer shall
promptly provide to the Master Servicer all information available to the
Special Servicer and not available to such Master 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 Mortgage Loan, the Master
Servicer shall not withdraw any amounts on deposit in the 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 the Master 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 not
extend the scheduled maturity date of any Specially Serviced Mortgage Loan to
a date later than three years prior to the Assumed Final Distribution Date
provided that if such Mortgage is secured by a leasehold interest, the
related scheduled maturity date may not be extended to a date later than ten
years prior to the expiration of the related ground lease; and provided,
further, that if such Mortgage Loan is a Balloon Mortgage Loan, the related
scheduled maturity date may not be extended to a date later than the
amortization term thereof absent the related Balloon Payment.
Notwithstanding the foregoing, no such extension may be effected unless the
Special Servicer shall deliver to the Trustee an Officer's Certificate
certifying that in the judgment of such Special Servicer such extension is
expected to increase the recovery value of the related Mortgage Loan on a net
present value basis; provided that such certificate shall not represent any
assurances that any such recovery will actually be realized. 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 Master
Servicer with respect to a Mortgage Loan set forth in Sections 4.01(c), 4.05,
4.08 and 4.09 (but not any liabilities incurred by the Master Servicer prior
to the related Servicing Transfer Date) with respect to any Specially
Serviced Mortgage Loan and any REO Properties, and Section 4.07 with respect
to any REO Properties and, to the extent it receives a certificate from a
Master 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 the Master Servicer not assumed
by the Special Servicer pursuant to Section 6.02(d), the Master Servicer
shall not have any such duty or obligation with respect to a 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
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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 Master 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 any such action is not contrary to applicable Law, the terms of
the applicable Mortgage Loan Documents or Accepted Special Servicing
Practices. 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 or Class E
Certificate, the Trustee shall have obtained an acknowledgment in the form of
Exhibit J from the recipient thereof that U.S. securities law may restrict
the use of the information in the Asset Strategy Report.
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, 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 set forth 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 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, 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 Master Servicer.
Any collections received by the Special Servicer in respect of any
Mortgage Loan, other than REO Proceeds, shall be remitted to the Master
Servicer within one Business Day of receipt for deposit into the Collection
Account pursuant to Section 4.02.
SECTION 6.08 Remittances to Master Servicer.
On each Master 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 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 the
Trustee and consistent with Accepted Special Servicing Practices) not later
than the third (3rd) 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 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 third (3rd) 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 second (2nd) Business Day immediately preceding each
Distribution Date, the Special Servicer shall 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 Master Remittance Date through the immediately preceding Master
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.
(c) Within sixty (60) days following the end of each calendar
year, the Special Servicer shall prepare, or cause to be prepared, and
deliver to the Master Servicer, the Trustee and each Rating Agency such
customary information with respect to each REO Mortgage Loan as the Special
Servicer deems necessary or desirable for each Certificateholder to prepare
its federal, state and local income tax returns. Such obligation of the
Special Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by it pursuant to any
requirements of the Code.
(d) If the Special Servicer receives notice from the Master
Servicer of any reporting inconsistencies pursuant to Section 4.06, 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 Special
Servicer, the Special Servicer shall remit to the Master Servicer on the
Master Remittance Date for deposit into the related 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 Master Servicer from its own funds for deposit into the
Collection Account an amount equal to the aggregate unreimbursed Advances
with all accrued interest thereon made by the Master 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 within the prior twelve months
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 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, and the
Trustee in the form of Exhibit W hereto.
(b) Unless the Master Servicer and the Special Servicer with
respect to a Mortgage Loan are the same Person, not later than two (2)
Business Days after notice has been given pursuant to subsection (a) above,
the Special Servicer shall send a letter by first class mail in the form of
Exhibit X hereto, with a copy to the Master 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 Master 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 Master 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 Master
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 Mortgage Loan shall terminate, and all duties and obligations
of the Master Servicer with respect to such Mortgage Loan to the extent set
forth herein previously assumed by the Special Servicer shall be reassumed by
the Master 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 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 outstanding principal balance of such Mortgage Loan is reduced to
zero.
SECTION 6.14 (RESERVED)
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
and the Master 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. 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 Collection Account and remit to the Trustee, by wire
transfer of immediately available funds to the Certificate Account, all
amounts on deposit in the Collection Account as of the close of business on
the Master Remittance Date required to be remitted to the Trustee pursuant to
Section 4.04.
SECTION 7.02 Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on
deposit in the Certificate Account (which shall remain uninvested) first to
payment of the Trustee Fee and reimbursable expenses of the Trustee not
previously reimbursed pursuant to Section 11.08 and then, to the extent of
the Available Distribution Amount, in the following order of priority:
(i) On each Distribution Date, (x) the related Class Portion of
any U.S. Treasury Net Prepayment Premiums to Class of
Certificates other than the Class NR-P Certificates and (y)
any Non-U.S. Treasury Net Prepayment Premium, to the Class X
Certificates;
(ii) to distributions of the Interest Distribution Amounts for such
Distribution Date on the Class A1, Class A2, Class A3 and
Class X Certificates, pro rata, based on their respective
Interest Distribution Amounts;
(iii) to distributions of the Principal Distribution Amount for
such Distribution Date to Class A1 Certificates until the
Class Balance thereof is reduced to zero;
(iv) to distributions of the Principal Distribution Amount (or the
portion thereof remaining after the distribution thereof to
the Class A1 Certificates in reduction of the Class Balance
thereof to zero) for such Distribution Date on the Class A2
Certificates, until the Class Balance thereof is reduced to
zero;
(v) to distributions of the Principal Distribution Amount (or the
portion thereof remaining after the distribution thereof to
the Class A2 Certificates in reduction of the Class Balance
thereof to zero) for such Distribution Date on the Class A3
Certificates, until the Class Balance thereof is reduced to
zero;
(vi) to distributions of the Interest Distribution Amount for such
Distribution Date on the Class B Certificates;
(vii) to distribution of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class A3 Certificates in reduction of the
Class Balance thereof is reduced to zero) for such
Distribution Date on the Class B Certificates, until the
Class Balance thereof is reduced to zero;
(viii) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class C Certificates;
(ix) to distributions of the Principal Distribution Amount (or the
portion thereof remaining after the distribution thereof to
the Class B Certificates in reduction of the Class Balance
thereof to zero) for such Distribution Date on the Class C
Certificates until the Class Balance thereof is reduced to
zero;
(x) to distributions of the Interest Distribution Amount for such
Distribution Date on the Class D Certificates;
(xi) to distributions of the Principal Distribution Amount (or the
portion thereof remaining after the distribution thereof to
the Class C Certificates in reduction of the Class Balance
thereof is reduced to zero) for such Distribution Date on the
Class D Certificates, until the Class Balance thereof is
reduced to zero;
(xii) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class E Certificates;
(xiii) to distributions of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class D
Certificates in reduction of the Class Balance thereof to
zero) for such Distribution Date on the Class E Certificates,
until the Class Balance thereof is reduced to zero;
(xiv) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class F Certificates;
(xv) to distributions of the Principal Distribution Amount (or the
portion thereof remaining after the distribution thereof to
the Class E Certificates in reduction of the Class Balance
thereof to zero) for such Distribution Date on the Class F
Certificates, until the Class balance thereof is reduced to
zero;
(xvi) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class G Certificates;
(xvii) to distributions of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class F Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class G Certificates, until the Class Balance
thereof is reduced to zero;
(xviii) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class H Certificates;
(xix) to distributions of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class G Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class H Certificates, until the Class Balance
thereof is reduced to zero;
(xx) to distributions of the Interest Distribution Amount for such
Distribution Date on the Class NR-I Certificates;
(xxi) to distributions of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class H Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class NR-P Certificates, until the Class Balance
thereof is reduced to zero;
(xxii) sequentially to the Classes of Certificates in the order
set forth for distribution of principal any amounts
recovered representing Realized Losses previously
allocated to such Class in reduction of its Class
Balance; and
(xxiii) to distributions to the Class R-I Certificateholders, in
an amount equal to the remaining balance in the
Certificate Account, if any.
To the extent the Class Balances of the Class B, Class C, Class D,
Class E, Class F, Class G, Class H and Class NR-P Certificates have been
reduced to zero on any Distribution Date, the Adjusted Available Distribution
Amount remaining after application pursuant to Clause (a)(ii) above shall be
applied to distribution of the Principal Distribution Amount for such
Distribution Date and each subsequent Distribution Date to the Class A1,
Class A2 and Class A3 Certificates pro rata based on their respective Class
Balances.
(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), 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). If, within two years after
the second notice, any such Certificates shall not have been surrendered for
cancellation, then Trustee shall pay to the Holders of the Class R-I
Certificates any amounts so held by the Trustee.
SECTION 7.03 Statements to Certificateholders.
(a) On each Distribution Date, the Trustee shall forward by mail
to each Holder, MGT, each Primary Seller 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 make
available to each Rating Agency and each Underwriter in an electronic format
each statement received prior to such Distribution Date prepared by the
Master Servicer pursuant to this Agreement.
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 X, Class F, Class
G, Class H, Class NR-I, Class NR-P, 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 to the extent received from the
Master Servicer or the Special Servicer. "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 or
Special Servicer of any request by a Certificateholder and shall consult with
the Master Servicer or Special 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 and the Special 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 as requested by the
Directing Certificateholder.
(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 (312) 904-7807.
SECTION 7.04 Distribution of Reports to the Trustee and the Depositor;
Advances by the Master Servicer.
On or prior to the second Business Day prior to each Distribution
Date, the Master Servicer shall furnish a written statement (and an
electronic data file) to the Trustee pursuant to Section 4.10 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 Master 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., Chicago time, on such Business Day,
specifying the portion of such amount that it will be unable to deposit. Not
later than close of business on such Master Remittance Date the Trustee
shall, unless 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, (b)
assume the rights and obligations of the Master Servicer hereunder in
accordance with Section 10.02, and (c) immediately notify the Fiscal Agent by
telephone promptly confirmed in writing. If the Trustee fails to make any
P&I Advance required to be made under this Section 7.04, the Fiscal Agent
shall make such P&I Advance not later than 12:00 noon, Chicago time, on the
related Distribution Date and, thereby, the Trustee shall not be in default
under this Agreement.
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 shall be allocated by the Trustee
as follows in reduction of the related Class Balance: first, to the Class
NR-P Certificates until the Class Balance thereof has been reduced to zero;
second, to the Class H Certificates until the Class Balance thereof has been
reduced to zero; third, to the Class G Certificates until the Class Balance
thereof has been reduced to zero; fourth, to the Class F Certificates until
the Class Balance thereof has been reduced to zero; fifth, to the Class E
Certificates until the Class Balance thereof has been reduced to zero; sixth,
to the Class D Certificates until the Class Balance thereof has been reduced
to zero; seventh, to the Class C Certificates until the Class Balance thereof
has been reduced to zero; eighth, to the Class B Certificates until the Class
Balance thereof has been reduced to zero, and the remainder of such Realized
Losses to the Class A1, Class A2 and Class A3 Certificates, pro rata, until
their respective Class Balances have been reduced to zero. All Collateral
Value Adjustments shall be allocated by the Trustee in the same order set
forth above with respect to the allocation of Realized Losses up to the
excess of the related Class
Balance, after giving effect to all reductions thereof on or prior to the
related Distribution Date, over the aggregate of all Collateral Value
Adjustments previously allocated to the related Class or Certificates. To
the extent a Collateral Value Adjustment is reversed, such reversed amount
shall be allocated by the Trustee to the Classes the Interest Distribution
Amount of which at the time of such allocation is calculated by reference to
a Class Balance adjusted by a Collateral Value Adjustment in alphabetic
order. The allocation of a Collateral Value Adjustment to a Class of
Certificates shall reduce such Class' Class Balance for purposes of
determining Voting Rights.
SECTION 7.06 Auction.
On each of (i) the Distribution Date occurring in November of each
year from and including November 2017 and (ii) any date after the
Distribution Date occurring in November 2017 on which the Trustee receives an
unsolicited bona fide offer to purchase all (but not less than all) of the
Mortgage Loans (each, an "Auction Valuation Date"), the Trustee shall request
that four independent financial advisory or investment banking or investment
brokerage firms nationally recognized in the field of real estate analysis
and reasonably acceptable to the Master Servicer provide the Trustee (at the
expense of the Trust Fund) with an estimated value at which the Mortgage
Loans and all other property acquired in respect of any Mortgage Loan in the
Trust Fund could be sold pursuant to an auction. If the average of the three
highest such estimates received equals or exceeds the aggregate amount of the
Certificate Balances of all Certificates outstanding on the Auction Valuation
Date, plus unpaid interest thereon, the anticipated Auction Fees, unpaid
servicing compensation, unreimbursed Advances (together with interest thereon
at the Advance Rate) and unpaid Trust Fund expenses, including accrued but
unpaid Trustee Fees, the Trustee shall conduct an auction of the Mortgage
Loans. The Trustee shall, in such case, appoint an auction agent to solicit
offers from prospective purchasers, who must meet certain requirements
described in this Agreement, to purchase all (but not less than all) of the
Mortgage Loans and such property, for a price not less than an amount equal
to the aggregate amount of the Certificate Balances of all Certificates
outstanding as of the close of business on the closing date (the "Auction
Closing Date"), plus unpaid interest thereon, the Auction Fees, unpaid
servicing compensation, unreimbursed Advances (together with interest thereon
at the Advance Rate) and unpaid Trust Fund expenses including accrued but
unpaid Trustee Fees (the "Minimum Auction Price"). The Auction Closing Date
shall be no earlier than the Distribution Date in February 2018. In
determining the aggregate Certificate Balances of all Certificates, all
Certificates owned by or on behalf of the Depositor, a property manager, the
Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, a
borrower or any affiliate thereof shall be included. The Trustee shall have
no liability for actions of any auction agent appointed hereunder.
If the Trustee receives no bids that are qualified pursuant to the
terms of this Section, the Trust Fund shall not be terminated pursuant to
these auction procedures. If the Trustee receives qualified bids, the
Trustee shall accept the highest of such bids, notify the Depositor, the
Master Servicer and the Special Servicer of the adoption of a plan of
complete
liquidation and shall sell the Mortgage Loans and such property to the
successful bidder on or before the Remittance Date immediately preceding the
third Distribution Date following the Auction Valuation Date (or such later
Distribution Date determined by the auction agent appointed in accordance
with the immediately preceding paragraph), but, in either event, no later
than the Distribution Date which immediately precedes the date which is 90
days following the date of adoption of a plan of complete liquidation by the
Trustee; provided, however, that no such sale shall be consummated unless the
Trustee has received an Opinion of Counsel, obtained at the expense of the
Trust Fund, to the effect that the resulting termination shall be a
"qualified liquidation" under section 860F(a)(4) of the Code with respect to
REMICs I, II and III. Such sale shall effect a termination of the Trust Fund
and an early retirement of the then outstanding Certificates. The Trustee
shall be entitled to be reimbursed from the Collection Account for expenses
that it or any auction agent incurs in connection with an auction, including
all fees and reasonable expenses of legal counsel and other professionals
("Auction Fees").
Any auction shall be conducted in accordance with auction
procedures to be developed by the auction agent in connection with such
auction, provided that such procedures shall include at a minimum provisions
substantially to the effect that: (i) no due diligence of the Master
Servicer's, the Special Servicer's, the Trustee's or the Fiscal Agent's
records with respect to the Mortgage Loans may be conducted by any bidder
prior to being notified that it has submitted the highest bid; (ii) the
auction agent is entitled to require that the highest bidder provide a non-
refundable good faith deposit sufficient to reimburse the Trustee and the
auction agent for all expenses in connection with the evaluation of such bid
and in connection with such highest bidder's due diligence; (iii) each bidder
may be required to enter into a confidentiality agreement with the Master
Servicer, the Special Servicer, the auction agent, the Trustee and the Fiscal
Agent prior to being permitted to conduct due diligence; (iv) borrowers on
any of the Mortgage Loans shall be prohibited from submitting bids; and (v)
in the event that the highest bidder withdraws, the next highest bidder shall
be permitted to conduct due diligence of the Master Servicer's, the Special
Servicer's, the Trustee's or the Fiscal Agent's records with respect to the
Mortgage Loans as if it were the highest bidder.
ARTICLE VIII
THE CERTIFICATES
SECTION 8.01 The Certificates.
(a) The Certificates will be substantially in the form annexed
hereto as Exhibit A. The Class A1, Class A2, Class A3, Class B, Class C,
Class D, Class E, Class X, Class F, Class G, Class H, Class NR-I and Class
NR-P 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 $25,000, 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, Class H, Class NR-I and Class NR-P
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 X, Class F, Class G, Class H, Class NR-I or
Class NR-P 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 X, Class F, Class G, Class H, Class
NR-I, Class NR-P, 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 X, Class
F, Class G, Class H, Class NR-I, Class NR-P, 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 X, Class F, Class G, Class H, Class NR-I, Class NR-P, Class R-I,
Class R-II and Class R-III Certificate without registration or qualification.
Any Class X, Class F, Class G, Class H, Class NR-I, Class NR-P, 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 H, Class NR-I, Class NR-P, 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, 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
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facie, is properly executed and submitted by any Person respecting any
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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 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
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; 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; 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, (a) 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, (b) in the case of any Event of Default
described in clauses (ix) or (x) hereof, at least 25% of all of the Voting
Rights or, (c) 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, or upon the occurrence of an Event of Default
described in clauses (vi)-(viii) hereof, all authority and power of 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 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. Any expenses incurred by the Trustee in connection with the
transfer of servicing functions shall be paid by the terminated Servicer and
shall not be an expense of the Trustee.
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, however, 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 66 2/3% 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
6.16, 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), (ii) or (xi) 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 and the Fiscal Agent have been reimbursed in full for all
Advances which they 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 AND FISCAL AGENT
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 1.75% by Class Balance
(adjusted for Collateral Value Adjustments) 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 1.75% by Class Balance (adjusted for Collateral Value
Adjustments) 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
4.01(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 certification of such Person, in
form acceptable to the Trustee, 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 and Fiscal Agent May Own Certificates.
The Trustee, in its individual or any other capacity, and Fiscal
Agent 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 from the Master Servicer from amounts remitted thereby to 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 0.0045% per annum,
calculated on the same basis as interest on the Certificates.
(b) The Trustee, the Fiscal Agent and any director, officer,
employee or agent of the Trustee or the Fiscal Agent shall be entitled to
indemnification out of the Certificate Account from time to time 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 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, in the case of Standard & Poor's
Ratings Services and Fitch Investors Service, L.P., and "Aa2", in the case of
Moody's Investors Service, Inc., 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; provided, however, that the
Trustee shall not cease to be eligible to serve as such based on its failure
to satisfy such rating requirements so long as there is a Fiscal Agent that
satisfies such rating requirements. 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 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 a 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 a 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 Master 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 Trustee and 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 and indicating that all amounts received in
connection with such payment that are required to be deposited in the related
subaccount of the 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) 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
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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 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.
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 national banking association duly organized,
validly existing and in good standing under the laws of the
United States of America.
(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; no license, consent,
approval, authorization or order of any court or governmental
agency is required for the execution, delivery and performance
by the Trustee of this Agreement, except as have been
previously obtained.
(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 Representations and Warranties of the Fiscal Agent.
(a) The Fiscal Agent hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Delivery Date, that:
(i) The Fiscal Agent is a foreign banking corporation duly organized,
validly existing and in good standing under the laws governing its
creation.
(ii) The execution and delivery of this Agreement by the Fiscal Agent,
and the performance and compliance with the terms of this Agreement
by the Fiscal Agent, will not violate the Fiscal Agent's
organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in a material breach of, any material
agreement or other instrument to which it is a party or by which it
is bound.
(iii) The Fiscal Agent 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 each of the other parties hereto, constitutes a valid, legal and
binding obligation of the Fiscal Agent, enforceable against the
Fiscal Agent 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 Fiscal Agent 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 Fiscal Agent's good
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Fiscal Agent to perform its
obligations under this Agreement or the financial condition of the
Fiscal Agent.
(vi) No litigation is pending or, to the best of the Fiscal Agent's
knowledge, threatened against the Fiscal Agent that, if determined
adversely to the Fiscal Agent, would prohibit the Fiscal Agent from
entering into this Agreement or that, in the Fiscal Agent's good
faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Fiscal Agent to perform
its obligations under this Agreement or the financial condition of
the Fiscal Agent.
(vii) No consent or approval is required for the execution, delivery and
performance by the Fiscal Agent of this Agreement which has not
been heretofore obtained.
(b) The representations and warranties of the Fiscal Agent set
forth in Section 11.16 (a) 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 any party hereto 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 hereto.
(c) Any successor Fiscal Agent shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set
forth in Section 11.16(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 11.16(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 11.17 The Fiscal Agent.
(a) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as a successor Servicer
or otherwise, and has failed to do so in accordance with the terms hereof,
the Fiscal Agent shall make such Advance when and as required by the terms of
this Agreement on behalf of the Trustee as if the Fiscal Agent were the
Trustee hereunder. To the extent that the Fiscal Agent makes an Advance
pursuant to this Section 11.17 or otherwise pursuant to the Agreement, the
obligations of the Trustee under this Agreement in respect of such Advance
shall be satisfied. Notwithstanding anything contained in this Agreement to
the contrary, the Fiscal Agent shall be entitled to all limitations on
liability, rights of reimbursement and indemnities that the Trustee is
entitled to hereunder as if it were the Trustee.
(b) All fees and expenses of the Fiscal Agent (other than interest
owed to the Fiscal Agent in respect of unreimbursed Advances) incurred by the
Fiscal Agent in connection with the transactions contemplated by this
Agreement shall be borne by the Trustee, and neither the Trustee nor the
Fiscal Agent shall be entitled to reimbursement therefor from any of the
Trust Fund, the Depositor, the Master Servicer or the Special Servicer.
(c) The obligations of the initial Fiscal Agent set forth in this
Section 11.17 shall exist for so long as the initial Trustee shall act as
Trustee hereunder. The obligations of the initial Fiscal Agent set forth in
this Section 11.17 or otherwise pursuant to the Agreement shall cease to
exist to the extent that the initial Trustee is no longer acting as Trustee
hereunder. The responsibility for appointing a successor Fiscal Agent shall
belong to the successor Trustee insofar as such appointment is necessary for
such successor Trustee to satisfy the eligibility requirements of Section
11.09. Any successor Fiscal Agent so appointed shall be required to execute
and deliver to the other parties hereto a written agreement to assume and
perform the duties of the Fiscal Agent set forth in this Agreement; provided
that no such successor shall become Fiscal Agent hereunder unless the
successor Trustee shall have received written confirmation from each Rating
Agency that the succession of such proposed successor Fiscal Agent would not,
in and of itself, result in a qualification, downgrading or withdrawal of the
then current ratings on the Certificates.
SECTION 11.18 SEC Filings.
Based upon information furnished to it by the Master Servicer and
the Depositor, the Trustee will prepare and file with the Securities and
Exchange Commission on Forms 8-K and 10-K on behalf of the Trust Fund the
reports distributed to the Certificateholders pursuant to the first paragraph
of Section 7.03(a). The Trustee shall have no responsibility to file any
items other than those specified in this Section 11.18. Prior to January 2,
1998 (and each anniversary thereafter until directed otherwise by the
Depositor) the Trustee shall hire counsel selected by the Depositor to file
Form 10-K's on behalf of the Trust Fund for the preceding fiscal year. Any
expenses incurred by the Trustee in
connection with this Section 11.18 (including reasonable attorneys' fees)
shall be reimbursed to it by the Depositor.
SECTION 11.19 Information Systems.
The Trustee shall maintain a data storage and retrieval system and
an electronic bulletin board.
ARTICLE XII
TERMINATION
SECTION 12.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
The respective obligations and responsibilities under this
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than the obligations of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth and any indemnification
provision) shall terminate upon payment to the Certificateholders and the
deposit of all amounts held by or on behalf of the Master Servicer and the
Trustee and required hereunder to be so paid or deposited on the Distribution
Date following the earlier to occur of (i) the purchase by the Master
Servicer, the Special Servicer, any holder of a Class R-I Certificate, the
holder of an aggregate Percentage Interest in excess of 50% of the Most
Subordinate Class of Certificates at a price equal to the greater of (a) the
aggregate fair market value 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) the aggregate Class Balance of all the Certificates plus accrued and
unpaid interest thereon, (ii) the purchase of Mortgage Loans pursuant to
Section 7.06, and (iii) 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 1% of
the aggregate Cut-off Date Balance of the Mortgage Loans. Any Person which
shall make the election described in the previous sentence shall also provide
to the Trustee an opinion of independent counsel, addressed to the Trustee,
to the effect that the resulting termination will be a "qualified
liquidation" under Section 860F(a)(4) of the Code with respect to REMIC I,
REMIC II, and REMIC III.
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 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
downgrade, qualify, lower or withdraw its then current rating on the
Certificates as a result of such amendment.
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates affected thereby entitled to at least
51% of the Voting Rights for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate without the consent of the
Holder of such Certificate, (ii) adversely affect in any material respect the
interests of the Holders of any Class of Certificates in a manner other than
as described in (i) without the consent of the Holders of all Certificates of
such Class, or (iii) reduce the aforesaid percentages of Certificates the
Holders of which are required to consent to any such amendment without the
consent of the Holders of all Certificates then outstanding. Notwithstanding
any other provision of this Agreement, for purposes of the giving or
withholding of consents pursuant to this Section
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 REMIC I,
REMIC II or REMIC III 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 prepared by the Person requesting such
amendment 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 Midland Loan Service, L.P., as Master Servicer or
Special Servicer, Midland Loan Services, L.P., 2001 Shawnee Mission Parkway,
Shawnee Mission, Kansas 66205, Attention: Alan L. Atterbury, telephone
number: 913-677-5300, telecopy number: 913-384-0413; (iii) in the case of
the Trustee, LaSalle National Bank, 135 South LaSalle Street, Chicago,
Illinois 60603, Attention: Asset-Backed Securities Trust Services Group--
J.P. Morgan, 1997-C5, telephone number: 312-904-7807, telecopy number:
(312) 904-2084; (iv) in the case of the Fiscal Agent, ABN AMRO Bank N.V., 135
South LaSalle Street, Chicago, Illinois 60603, Attention: Asset-Backed
Securities Trust Services Group--J.P. Morgan, 1997-C5, telephone number:(312)
904-7807, telecopy number: (312) 904-2084; and (v) in the case of the Rating
Agencies, (A) 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,
(B) Moody's Investors Service, Inc., 99 Church Street, New York, New York
10004, Attention: Commercial Mortgage Surveillance Group, telephone number:
212-553-0300, telecopy number: 212-208-0597, and (C) Standard & Poor's
Ratings Services, 25 Broadway, New York, New York 10004, Attention:
Commercial Mortgage Surveillance Group, telephone number: 212-208-8000,
telecopy number 212-208-0597; 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 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 a Servicer may assign its
rights and obligations pursuant to Section 3.13.
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 J. Blume
--------------------------------------------
Name: Lawrence J. Blume
---------------------------------------
Title: Vice President
---------------------------------------
MIDLAND LOAN SERVICES, L.P.,
Master Servicer and Special Servicer
By: MIDLAND DATA SYSTEMS, INC.,
General Partner
By: /s/ Leon E. Bergman
--------------------------------------------
Name: Leon E. Bergman
---------------------------------------
Title: Executive Vice President
---------------------------------------
LASALLE NATIONAL BANK,
Trustee
By: /s/ Brian D. Ames
--------------------------------------------
Name: Brian D. Ames
---------------------------------------
Title: Trust Officer
---------------------------------------
ABN AMRO BANK N.V.,
Fiscal Agent
By: /s/ Irene Pazik
--------------------------------------------
Name: Irene Pazik
---------------------------------------
Title: Vice President
---------------------------------------
By: /s/ Robert C. Smolka
--------------------------------------------
Name: Robert C. Smolka
---------------------------------------
Title: Group Vice President
---------------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of September, 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.
/s/ James M. Wulffleff
______________________________
Notary Public
(Notarial Seal)
STATE OF MISSOURI )
) ss.:
COUNTY OF JACKSON )
On the 29th day of September, 1997 before me, a notary public in
and for said State, personally appeared Leon E. Bergman known to me to be a
Executive Vice President of Midland Data Systems, Inc., as general partner of
Midland Loan Services, L.P., the limited partnership that executed the within
instrument, and also known to me to be the person who executed it on behalf
of said limited partnership, and acknowledged to me that such limited
partnership 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.
/s/ Debra Baier Gilbert
______________________________
Notary Public
(Notarial Seal)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of September, 1997, before me, a notary public in
and for said State, personally appeared Brian D. Ames known to me to be a
Trust Officer of LaSalle National Bank, the nationally chartered bank that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said nationally chartered bank, and acknowledged to
me that such nationally chartered bank 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.
/s/ James M. Wulffleff
_______________________________
Notary Public
(Notarial Seal)
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 25th day of September, 1997, before me, Jeanette Karfis, a
notary public in and for said State, personally appeared Irene Pazic, Vice
President, and Robert C. Smolka, Group Vice President of ABN AMRO Bank N.V.,
one of the corporations that executed the within instrument, and also known
to me to be the persons 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.
/s/ Jeanette Karfis
_______________________________
Notary Public
(Notarial Seal)
EXHIBIT A
FORM OF CERTIFICATE
(UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.)
(SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").)
(SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").)
(THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING
THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE DELIVERY DATE OF THIS CERTIFICATE IS __________, 199_.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED
SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL
TO A CONSTANT PREPAYMENT RATE OF __%, (THE "PREPAYMENT ASSUMPTION"), THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID PER $1,000 OF
INITIAL CERTIFICATE BALANCE. THE YIELD TO MATURITY IS ______% PER ANNUM. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON
THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.)
(TRANSFER OF THIS CLASS ( ) CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH HEREIN. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER OF THIS CLASS ( )
CERTIFICATE TO A DISQUALIFIED ORGANIZATION (AS DEFINED HEREIN) OR AN AGENT OF
A DISQUALIFIED ORGANIZATION OR TO A NON-UNITED STATES PERSON (AS DEFINED
HEREIN), SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR
ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON
THIS CERTIFICATE.)
(THIS CLASS ( ) CERTIFICATE IS SUBORDINATE TO THE CLASS ( ) CERTIFICATE OF
THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.)
(THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933 (THE "1933 ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 8.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.)
(NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF,
AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.)
CLASS ( ) MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of a pool of fixed rate mortgage loans formed and sold by
J.P. MORGAN COMMERCIAL MORTGAGE FINANCE CORP., SERIES 1997-C5
(Original Class
Balance / Initial Aggregate
Notional Amount): $__________
Date of Pooling and Servicing (Initial Certificate
Agreement: September 1, 1997 Balance / Initial Notional Amount)
of this Class ( ) Certificate as
of the Delivery Date: $________
Cut-off Date: September 1, 1997
Delivery Date: _______________ Percentage Interest: ____%
First Distribution Date: October 15, 1997 Pass-Through Rate: ____%
Master Servicer: Midland Loan Services, L.P. Trustee: LaSalle National
Bank
No. ___
Cusip No.: 617059 ___
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN J.P.
MORGAN COMMERCIAL MORTGAGE FINANCE CORP. OR ANY OF ITS AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, A PORTION OF THE INTEREST
ACCRUED IN RESPECT OF THIS CERTIFICATE FROM TIME TO TIME MAY NOT BE PAYABLE
CURRENTLY BUT MAY INSTEAD BE ADDED TO THE CERTIFICATE BALANCE HEREOF AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that (Cede & Co./J.P. Morgan Securities Inc.) is the
registered owner of the Percentage Interest evidenced by this Class ( )
Certificate (obtained by dividing the initial Certificate Balance of this
Class ( ) Certificate as of the Delivery Date by the initial Class Balance of
the Class ( ) Certificates) in that certain beneficial ownership interest
evidenced by all the Class ( ) Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as of September 1, 1997
(the "Agreement"), among J.P. Morgan Commercial Mortgage Finance Corp., as
depositor (hereinafter called the "Depositor", which term includes any
successor entity under the Agreement), Midland Loan Services, L.P., as master
servicer and special servicer (in such capacity, the "Master Servicer" or
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle National Bank, as trustee (in such capacity, the
"Trustee", which term includes any successor entity under the Agreement), and
ABN AMRO Bank N.V. as fiscal agent (in such capacity, the "Fiscal Agent",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
the Holders of the Class ( ) Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on a
Class ( ) Certificate will be made by the Trustee pursuant to the Agreement.
Any distribution to the Holder of this Certificate (in reduction of
the Certificate Balance hereof) is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such distribution is made upon this Certificate.
The Class ( ) Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class ( ) Certificates are exchangeable for new Class ( ) Certificates
in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Certificates of the
same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
(No transfer of any Class ( ) Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration or qualification and in connection with the transfer or issuance
of a Definitive Certificate, then the Certificate Registrar shall require, in
order to assure compliance with such laws, receipt of: (a) if such transfer
is of a Class ( ) Certificate and is purportedly made in reliance on Rule
144A under the 1933 Act, a certificate from the transferee desiring to effect
such transfer substantially in the form of Exhibit D-1 to the Agreement; (b)
if such transfer is of a Class ( ) Certificate and is purportedly made in
reliance on Regulation S under the 1933 Act, a certificate from the
transferee desiring to effect such transfer substantially in the form of
Exhibit D-2 to the Agreement; (c) if such transfer is of a Class ( )
Certificate and is purportedly made in reliance on Rule 144 under the 1933
Act, a certificate from the transferee desiring to effect such transfer
substantially in the form of Exhibit D-3 to the Agreement; and (d) in all
other cases, (i) except as otherwise set forth in the Agreement, an Opinion
of Counsel satisfactory to the Certificate Registrar to the effect that such
transfer may be made without such registration or qualification (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form of Exhibit C to the Agreement and (iii) a
certificate from such Certificateholder's prospective transferee substantial-
ly in the form of Exhibit E to the Agreement. None of the Depositor, the
Trustee or the Certificate Registrar is obligated to register or qualify the
Class ( ) Certificates under the 1933 Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
transfer of any Class ( ) Certificate without registration or qualification.
Any Class ( ) Certificateholder desiring to effect such a transfer shall, and
does hereby agree to, indemnify the Trustee, the Certificate Registrar and
the Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.)
(No transfer of any Class R-( ) Certificate shall be made to a
Non-United States Person. Notwithstanding anything to the contrary contained
herein, prior to registration of any transfer, sale or other disposition of a
Class R-( ) Certificate, the Certificate Registrar shall have received (i) an
affidavit from the proposed transferee substantially in the form of Exhibit
F-1 to the Agreement, to the effect that, among other things, (A) such
transferee is not a Disqualified Organization or an agent (including a
broker, nominee or middleman) of a Disqualified Organization, (B) such
transferee is not a Non-United States Person, (C) such transferee has no
present knowledge or expectation that it will become insolvent or subject to
a bankruptcy proceeding for so long as the Class R-( ) Certificate remains
outstanding, and (D) no purpose of such proposed transfer, sale or other
disposition of the Class R-( ) 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 of Exhibit F-2 to the Agreement, to the
effect that, among other things, no purpose of such proposed transfer, sale
or other disposition of the Class R-( ) Certificate is or will be to impede
the assessment or collection of any tax. Notwithstanding the registration in
the Certificate Register of any transfer, sale or other disposition of a
Class R-( ) Certificate to a Disqualified Organization or an agent (including
a broker, nominee or middleman) of a Disqualified Organization or to a
Non-United States Person, such registration shall be deemed to be of no legal
force or effect whatsoever and such Person shall not be deemed to be a
Certificateholder for any purpose hereunder, including, but not limited to,
the receipt of distributions in respect of such Class R-( ) Certificate. If
any purported transfer of a Class R-( ) Certificate shall be in violation of
the provisions of Section 8.02(d) of the Agreement, as described in this
paragraph, then the prior Holder of the Class R-( ) Certificate purportedly
transferred shall, upon discovery that the transfer of such Class R-( )
Certificate was not in fact permitted by Section 8.02(d) of the Agreement, 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 Class R-( ) Certificate that is not
permitted by Section 8.02(d) of the Agreement or for making payments due on
such Class R-( ) Certificate to the purported Holder thereof or taking any
other action with respect to such purported Holder under the provisions of
the Agreement. The prior Holder shall be entitled to recover from any
purported Holder of a Class R-( ) Certificate that was in fact not a
permitted transferee under Section 8.02(d) of the Agreement at the time it
became a Holder all payments made on such Class R-( ) Certificate. The
Holder of a Class R-( ) Certificate, by its acceptance thereof, shall be
deemed for all purposes to have consented to the provisions of Section 8.02
of the Agreement and to any amendment of the Agreement deemed necessary by
counsel of the Depositor to ensure that the transfer of a Class R-( )
Certificate to a Disqualified Organization or any other Person will not cause
the Trust Fund to cease to qualify as a REMIC or cause the imposition of a
tax upon the Trust Fund.
A Disqualified Organization is any of (i) the United States, any
State or political subdivision thereof, any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (ii) any organization (other than a cooperative described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code unless such organization is subject to the tax imposed by Section
511 of the Code, or (iii) any organization described in Section 1381(a)(2)(C)
of the Code. A corporation will not be treated as an instrumentality of the
United States or of any State or any political subdivision thereof if all of
its activities are subject to tax and, with the exception of FHLMC, a
majority of its board of directors is not selected by a governmental unit. A
Non-United States Person is a Person other than a citizen or resident of the
United States, a corporation, partnership or other entity created or
organized in, or under the laws of, the United States or any political
subdivision thereof, or an estate or trust whose income from sources without
the United States is includible in gross income for United States federal
income tax purposes regardless of its connection with the conduct of a trade
or business within the United States.)
(No transfer of a Class ( ) Certificate or any interest therein
shall be made to (A) any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh
plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code
(each, a "Plan") or (B) any Person who is directly or indirectly purchasing
the Class ( ) Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, unless the prospective
transferee provides the Certificate Registrar with a certification of facts
and an Opinion of Counsel which establishes to the satisfaction of the
Certificate Registrar that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or cause the Master Servicer
or Trustee to be deemed a fiduciary of such Plan or result in the imposition
of an excise tax under Section 4975 of the Code. In the absence of its
having received the certification and Opinion of Counsel contemplated by the
preceding sentence, the Certificate Registrar shall require the prospective
transferee of any Class ( ) Certificate to certify that it is neither (A) a
Plan nor (B) a Person who is directly or indirectly purchasing such Class ( )
Certificate on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan.)
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar nor
any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon distribution (or provision for distribution) to
the Certificateholders of all amounts held by or on behalf of the Master
Servicer or the Trustee and required to be distributed to them pursuant to
the Agreement following the earlier of (i) the 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 at a price equal to the greater of (a) the
aggregate fair market value 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) the aggregate Class Balance of all the Certificates plus accrued and
unpaid interest thereon, (ii) the purchase of the Mortgage Loans pursuant to
Section 7.06 of the Agreement, and (iii) 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 thereby 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Loans at the time of purchase being
less than 1% of the aggregate Cut-off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances,
including any amendment necessary to maintain the status of the Trust Fund as
a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
Dated: _______________
LASALLE NATIONAL BANK,
as Trustee
By:
-------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class ( ) Certificates referred to in the
within-mentioned Agreement.
LASALLE NATIONAL BANK,
as Certificate Registrar
By:
-------------------------
Authorized Signatory
EXHIBIT B
FORM OF ASSET STRATEGY REPORT
ASSET STRATEGY REPORT
TABLE OF CONTENTS
XX (Name of Servicer)
XX (Pool Title)
XX MORTGAGOR
Page
---
Executive Summary XX
Report Memorandum XX
EXHIBIT A - XX XX
EXHIBIT B - XX XX
EXHIBIT C - XX XX
EXHIBIT D - XX XX
EXHIBIT E - XX XX
EXHIBIT F - XX XX
EXHIBIT G - XX XX
XX MORTGAGOR
EXECUTIVE SUMMARY
Loan Balance: $_____ Current Appraised Value: $______
Capitalized terms used herein shall bear the meaning ascribed to them in the
Servicing Agreement dated as of _______ , Series 19__ ("S.A.") unless
otherwise defined in the Asset Strategy Report.
_ XX
_ XX
_ XX
* XX
* XX
(The following sentence should follow the paragraph dealing with the S.A. and
where that proposal is outlined in the S.A.).
* The requested action is not in violation of the applicable
agreement.
<TABLE>
APPROVALS
<CAPTION>
ASST MANAGER SIGNATURE SYSTEM SIGNATURE SYSTEM CREDIT RELATED OWNER
PORTFOLIO MANAGER CONTRACT MANAGER COMMITTEE APPROVAL
- ------------- ----------------- ---------------- ------------ -------------
<S> <C> <C> <C>
___ Approve XX ___ Approve XX ___ Approve XX ___ Approve XX ___ Approve XX
___ Decline ___ Decline ___ Decline ___ Decline ___ Decline
___ No Action ___ No Action ___ No Action ___ No Action ___ No Action
DATE: DATE: DATE: DATE: DATE:
COMMITTEE CONDITIONS AND/OR COMMENTS:_________________________________________________
_____________________________
Approval Expiration Date:
</TABLE>
XX MORTGAGOR
REPORT MEMORANDUM
Loan Balance: $_____ Current Appraised Value: $_______
Capitalized terms used herein shall bear the meaning ascribed to them in the
Servicing Agreement dated as of __________, 19__,- ("S.A.") unless otherwise
defined in the Asset Strategy Report.
SECTION I/ RECOMMENDATION:
- --------------------------
* XX
* XX
* Does an exception to policy exist? ___ Yes ___ No If yes,
please state exception and provide the reason and
substantiation:__________________________.
SECTION II/ LOAN DETAIL:
- ------------------------
Primary Loan ID No.: XX
Related Owner Loan ID No.: XX
Pool No.: XX
Mortgagor Entity: XX
Mortgagor Name: XX
Mortgagor Address, City, State, Zip: XX
Name of Mortgaged Property: XX
Mortgaged Property Address, City, State, Zip: XX
Date of Note: XX
Original Loan Balance: XX
Transfer Loan Balance: XX
Current Loan Balance: XX
Past Due Interest: XX
Net Loan Collection Expenses to Date: XX
Current P&I Payment: XX
Interest Paid to Date: XX
Number of Days Past Due: XX
Last Amount Received: XX
Maturity Date: XX
Mortgage Interest Rate: XX
Group Number (Sub-Pool Number): XX
Servicing Transfer Date: XX
Servicing Transfer Type: XX
Performing/Non-Performing Status: XX
Recourse: XX
SECTION III/ DESCRIPTION OF COLLATERAL:
- ---------------------------------------
Collateral: XX
Location: XX
Occupancy as of Most Recent Rent Roll: XX
Current LTV Ratio: XX
Value/Method/Source/Date: XX
Debt Service Coverage Ratio (NOI/DS): XX
Other Liens: XX
Market Data: XX
Additional Collateral: XX
Inspections: XX
SECTION IV/ PROBLEM (Including Legal Issues):
- ---------------------------------------------
XX
SECTION V/ FURTHER DESCRIPTION OF NOTE, LOAN DOCUMENTS AND COLLATERAL:
- ----------------------------------------------------------------------
XX
SECTION VI/ APPRAISAL DISCUSSION:
- ---------------------------------
<TABLE>
SUMMARY OF APPRAISAL DATA
<CAPTION>
PROPERTY NAME VALUE DATE SERVICER CONCURRENCE YES OR NO,
if no explanation
- ------------------------ -------------------- ----------------- ------------------------------------
<S> <C> <C> <C>
XX XX XX XX
</TABLE>
X
XX
SALES COMPARISON APPROACH:
- --------------------------
<TABLE>
<CAPTION>
Size Adjusted Price
Comparables Date Range Range/SF Price Range/PSF Range/PSF Indicated Value
----------- ---------- -------- --------------- -------------- ---------------
<S> <C> <C> <C> <C> <C>
XX XX-XX XX-XX $XX-$XX $XX-$XX $XX
</TABLE>
INCOME APPROACH:
- ----------------
<TABLE>
<CAPTION>
Rental Est. Market Est. Oper. Indicated
Comparables Range/PSF Rent/PSF Exp/PSF NOI Cap Rate Value
----------- --------- ----------- ---------- --- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
XX $XX-$XX $XX $XX $XX XX% $XX
</TABLE>
XX
SECTION VII/ ENVIRONMENTAL SITE ASSESSMENT ("ESA") (if applicable):
- -------------------------------------------------------------------
Phase 1 Performed/Ordered: XX Inspection Firm/Date: XX
Result: XX
Phase 2 Performed/Ordered: XX Inspection Firm/Date: XX
Result: XX
Asbestos Survey Performed/Ordered: XX Inspection Firm/Date: XX
Result: XX
SECTION VIII/ INSURANCE/TAXES:
- ------------------------------
XX
SECTION IX/ OPERATING INFORMATION (Financial Performance of Collateral.
- ------------------------------------------------------------------------
Please refer to Class Exhibit X for a Comparative Analysis of Net Operating
- ---------------------------------------------------------------------
Income):
- --------
XX
SECTION X/ FINANCIAL SUMMARY OF OBLIGORS AND ANALYSIS:
- ------------------------------------------------------
<TABLE>
<CAPTION>
BRIEF FINANCIAL SUMMARY OR UPDATE (COMPARE MOST RECENT INTERIM STATEMENTS TO LATEST FYE STATEMENTS)
BUSINESS CURRENT F/S DATE PRIOR F/S DATE INDIVIDUAL CURRENT F/S DATE PRIOR F/S DATE
XX NAV NAV XX NAV NAV
RELATIONSHIP TO Mortgagor RELATIONSHIP TO Mortgagor
XX XX
- -------------------------- ---------------- ---------------- ------------------------ ---------------- --------------
<S> <C> <C> <C> <C> <C>
TOTAL ASSETS NAV NAV TOTAL ASSETS NAV NAV
TOTAL LIABILITIES NAV NAV TOTAL LIABILITIES NAV NAV
NET WORTH (NW) NAV NAV NET WORTH (NW) NAV NAV
CA/CL NAV NAV NW LESS HOMESTEAD NAV NAV
WORKING CAPITAL NAV NAV TOTAL LIQUID ASSETS NAV NAV
LTD NAV NAV LEVERAGE RATIO NAV NAV
CMLTD NAV NAV UNSECURED DEBT NAV NAV
NET INCOME NAV NAV CONTINGENT LIABILITIES NAV NAV
CASH FLOW FROM OPS NAV NAV TOTAL SOURCES OF INCOME NAV NAV
CF AVAIL FOR DEBT SRVC NAV NAV CF AFTER DEBT SERVICE NAV NAV
</TABLE>
SECTION XI/ BRIEF BACKGROUND/NEGOTIATIONS/SIGNIFICANT EVENTS (in
- ----------------------------------------------------------------
chronological order):
- ---------------------
XX
SECTION XII/ REAL ESTATE MORTGAGE INVESTMENT CONDUIT ("REMIC"):
- ---------------------------------------------------------------
XX
SECTION XIII/ ALTERNATIVES-NPV ANALYSIS:
- ----------------------------------------
* The possible range of alternatives considered for the Mortgage Loan and
the Net Present Values for each of the scenarios are provided in the
following table with the respective discount rates:
Two modification scenarios:
NET PRESENT VALUE DISCOUNT RATE
----------------- -------------
SCENARIO 1A: $XX XX%
SCENARIO 1B: $XX XX%
* XX
* XX
Two foreclosure scenarios:
NET PRESENT VALUE DISCOUNT RATE
----------------- -------------
SCENARIO 2A: $XX XX%
SCENARIO 2B: $XX XX%
Two modification scenarios have been prepared and have the following
assumptions:
1A: XX
1B: XX
Two foreclosure scenarios have been prepared and have the following
assumptions:
2A: XX
2B: XX
SECTION XIV/ STRATEGY AND TIMETABLE FOR RESOLUTION OF ASSET:
- ------------------------------------------------------------
Summary of NPV Analysis of Alternatives as compared to the Proposal:
XX
SECTION XV/ SUBSTANTIATION:
- ---------------------------
XX
* XX
* XX
Outline for Asset Strategy Report Format Presentation
-----------------------------------------------------
I. WHAT IS AN ASSET STRATEGY REPORT (ASP), ITS PURPOSE AND WHAT IS IT
COMPRISED OF:
A. A package of information to recommend and support a proposal
for the resolution of an asset.
B. Components:
* Table of Contents
* Executive Summary
* Case Memorandum
* Exhibits
II. THE TABLE OF CONTENTS
* reference to specific pool
* reference to exhibits A...Z
* include page #s
III. EXECUTIVE SUMMARY
* phone # - include area code
* reference to S.A. & specific pool
* THE EXECUTIVE SUMMARY SHOULD BE LIMITED TO ONE PAGE AND
CONTAIN ONLY A SYNOPSIS OF THE MOST IMPORTANT FACTS OR HIGH
POINTS IN THE REPORT MEMORANDUM. IT SHOULD ANSWER THESE
QUESTIONS IN THIS ORDER:
* WHAT IS THE RECOMMENDATION?
* WHO IS THE BORROWER/WHAT IS THE COLLATERAL?
* WHY IS THE RECOMMENDATION SUBSTANTIATED?
* reference case memorandum & date
* reference Servicing Agreement ("S.A.") (always state a brief
explanation of sections being quoted from S.A., as opposed to
just listing the section.
* approval box - changes/inclusion of expiration date/this is
the location of any "subject to's" / all signatures / initials
/ approval stamps are on this box
IV. REPORT MEMORANDUM
* the top of this form is similar to Executive Summary
SECTION I/ RECOMMENDATION:
- --------------------------
* List in a bullet format the specific actions for which
----
approval is requested. It is important to list every action and to specify a
deadline.
* STATE THE APPLICABLE SECTION OF THE SERVICING AGREEMENT AND
SUMMARIZE THE PROPOSAL; eg. Pursuant to Section 6.05(a) of
the Servicing Agreement, we propose to modify the monthly
payments to interest only at a rate of 5% per annum for a
period of 12 months. The reduction will result in debt
service coverage of 1.10x, and the borrower will utilize the
additional cash flow to perform certain property repairs that
should benefit the property OR; borrower will be required to
pay $60,000 to bring the loan current prior to modification
and will be required to provide monthly cash flow statements.
* Some examples:
* Request acceptance of $ settlement.
* Request approval to accept % of principal and
interest(as alternative could state minimum $
amount)
* Request release of lien on
* Approval of litigation budget
* Waiver of competitive bid
* can be in more detail than Executive Summary
* bullet format/avoid verbiage that is not part of proposal
* answer exception to policy question
SECTION II/ LOAN DETAIL:
- ------------------------
* same as before w/a few additions/rearrangements (i.e. current
loan balance/interest due/net collection expenses to
date/listed together for the readers benefit)
* examples: occupancy versus vacancy
performing/non-performing status
SECTION III/ DESCRIPTION OF COLLATERAL:
- ---------------------------------------
COLLATERAL: PROVIDE A BRIEF DESCRIPTION OF THE LIEN
POSITION AND THE COLLATERAL; ie. neighborhood
shopping center with 100,000 sf and anchored by
supermarket, or 100 garden apartment units with
clubhouse and pool. Also state source in
information where our knowledge was obtained.
(i.e. Deed of Trust/Mortgage)
LOCATION: PROVIDE PROPERTY LOCATION AND RELATED AREA; ie.
Overland Park, Kansas, suburb of Kansas City
SMSA.
OCCUPANCY: 80% of retail space equalling 20,000 sf, or 80%
of units equalling 20 apartment units.
CURRENT LTV RATIO: State the current loan to value ratio.
VALUE/METHOD/SOURCE/DATE: Estimate current market value of property and a
per unit amount.
DSCR (NOI/DS): PROVIDE CURRENT NOI AND DEBT SERVICE COVERAGE;
ie. or $100,000 NOI covers debt service 0.90
times or NOI of $100,000 supports debt service
of $111,111 (.90 times).
OTHER LIENS: IDENTIFY ANY SECOND LIENS OR, IF THIS IS A
SECOND MORTGAGE, GIVE DETAILS OF SENIOR DEBT;
ie. loan balance, monthly payment, interest
rate, maturity date, last payment date and
combined debt service coverage. SUBORDINATE
LIEN HOLDERS SHOULD NOT RECEIVE PAYMENT UNTIL
THE TRUST IS MADE WHOLE.
MARKET DATA: Compare property rental rates and vacancy level
to market comparables; ie. current apartment
rental rates are $10-$50 higher than
competitors but subject units are larger in
size. Vacancies at competitive properties are
lower than subject property (currently 10% -
15% vacancies).
INSPECTIONS: SPECIFY DATE OF SERVICER INSPECTION AND GENERAL
CONDITION OF PROPERTY; ie. property was
inspected by Servicer on May 24, 1993, and we
verified vacancies and identified deferred
maintenance estimated to cost $50,000. State
who inspected and general condition (Exhibit ___
attached).
* same categories/wording changes
* value/method/source/date (include a per unit value)
* DSCR = debt service coverage ratio (is the calculation of NOI
over Debt Service) - (should be relative to our lien position
only/other info is useful for informational purposes only, but
state the source)
SECTION IV/ PROBLEM (Including Legal Issues):
- ---------------------------------------------
GIVE A CONCISE DESCRIPTION OF THE FACTORS CREATING OR CONTRIBUTING TO
THE PROBLEM; ie. area has experienced over building of retail properties
which has resulted in higher vacancy rates and lower rental rates.
Borrower appears to be in a weak competitive condition as debt service
level restricts property upkeep and ability to offer leasing concessions
prevalent in marketplace OR; borrower is funding shortfall to the extent
of $20,000 per month and cannot continue to pay at the note rate.
* includes any legal issues
SECTION V/ FURTHER DESCRIPTION OF NOTE, LOAN DOCUMENTS AND COLLATERAL:
- ----------------------------------------------------------------------
* further is the key word - do not repeat Section III.
SECTION VI/ APPRAISAL DISCUSSION:
- ---------------------------------
<TABLE>
SUMMARY OF APPRAISAL DATA
<CAPTION>
PROPERTY NAME VALUE DATE SERVICER CONCURRENCE YES OR NO,
if no explanation
- ------------------------ -------------------- ----------------- ------------------------------------
<S> <C> <C> <C>
XX XX XX XX
</TABLE>
* table allows reader to easily refer to data
* continue summarizing & discussing merits of the appraisal
SECTION VII/ ENVIRONMENTAL SITE ASSESSMENT ("ESA") (if applicable):
- -------------------------------------------------------------------
Phase 1 Performed/Ordered: XX Inspection Firm/Date: XX
Result: XX
Phase 2 Performed/Ordered: XX Inspection Firm/Date: XX
Result: XX
Asbestos Survey Performed/Ordered: XX Inspection Firm/Date: XX
Result: XX
* when applicable also include narrative regarding the Executive
Summary provided by the Environmental firm (i.e.
low/moderate/high risk; whether additional work is required).
SECTION VIII/ INSURANCE/TAXES:
- ------------------------------
* continue including pertinent data with regard to payment and
coverage of insurance and taxes.
SECTION IX/ OPERATING INFORMATION (Financial Performance of Collateral.
- ------------------------------------------------------------------------
Please refer to Exhibit X for a Comparative Analysis of Net Operating
- ---------------------------------------------------------------------
Income):
- --------
* highlight critical data regarding the revenues & expenses of
the collateral property
* business services exhibit examples:
* rent roll analysis (may have exhibit)
* comparative analysis of NOI (may have exhibit)
SECTION X/ FINANCIAL SUMMARY OF OBLIGORS AND ANALYSIS:
- ------------------------------------------------------
<TABLE>
<CAPTION>
BRIEF FINANCIAL SUMMARY OR UPDATE (COMPARE MOST RECENT INTERIM STATEMENTS TO LATEST FYE STATEMENTS)
BUSINESS CURRENT F/S DATE PRIOR F/S DATE INDIVIDUAL CURRENT F/S DATE PRIOR F/S DATE
XX NAV NAV XX NAV NAV
RELATIONSHIP TO Mortgagor RELATIONSHIP TO Mortgagor
XX XX
- -------------------------- ---------------- ---------------- ------------------------ ---------------- --------------
<S> <C> <C> <C> <C> <C>
TOTAL ASSETS NAV NAV TOTAL ASSETS NAV NAV
TOTAL LIABILITIES NAV NAV TOTAL LIABILITIES NAV NAV
NET WORTH (NW) NAV NAV NET WORTH (NW) NAV NAV
CA/CL NAV NAV NW LESS HOMESTEAD NAV NAV
WORKING CAPITAL NAV NAV TOTAL LIQUID ASSETS NAV NAV
LTD NAV NAV LEVERAGE RATIO NAV NAV
CMLTD NAV NAV UNSECURED DEBT NAV NAV
NET INCOME NAV NAV CONTINGENT LIABILITIES NAV NAV
CASH FLOW FROM OPS NAV NAV TOTAL SOURCES OF INCOME NAV NAV
CF AVAIL FOR DEBT SRVC NAV NAV CF AFTER DEBT SERVICE NAV NAV
</TABLE>
* NAV, then input data that is applicable
* Block & copy for additional financial statements
* narrative might include:
* steps taken to verify items/values on the statements
* nature of the business, background & trends
* steps taken to verify the items on the statements
* personal information on the principals
* products produced and/or services rendered
* contingencies
* annualizing data is appropriate for comparison purposes, but
so footnote
SECTION XI/ BRIEF BACKGROUND/NEGOTIATIONS/SIGNIFICANT EVENTS (in
- ----------------------------------------------------------------
chronological order):
- ---------------------
* State events leading to current proposal, including the
history of negotiations with amounts of various offers and
counter-offers. The entire history is probably not needed
------
unless it is relevant to making a decision on the proposed
action or if the account has been specially serviced for
six months or greater.
* include here statements by Borrowers of unsuccessful attempts
to refinance.
* collection actions such as phone calls, letters, proposals,
valuations, etc. should be listed as appropriate.
SECTION XII/ REAL ESTATE MORTGAGE INVESTMENT CONDUIT ("REMIC") (post
- --------------------------------------------------------------------
securitization):
- ----------------
* state how REMIC is not violated
* refer to opinion letter (include "no opinion letter" when
applicable).
SECTION XIII/ ALTERNATIVES-NPV ANALYSIS:
- ----------------------------------------
DISCUSS BRIEFLY THE ALTERNATIVES TO THE PROPOSAL; ie. the borrower has
indicated they would file for bankruptcy protection if the modification
is not approved OR; the foreclosure process will foster further
deterioration of the collateral.
* Then list-- including the proposal-- possible alternatives which
could include:
* Accelerate
* Sale of company
* Sale of assets-- efforts to sell property-- give specifics as
to attempts made, reasons why not sold.
* Refinancing
* Litigation-- include attorney's analysis of time, expense,
chances of winning.
* Bankruptcy and/or liquidation-- likelihood and impact (i.e.,
whether we are likely to get any payments in bankruptcy,
expected outcome).
* Foreclosure
* Pursuit of guarantors-- likelihood of bankruptcy, likely time
involved.
* Sell note-- stand alone or bulk sale.
* Give points that support or devalue each alternative such as:
* Appraised value of collateral
* Estimated NPV, % recovery
* Why settlement offer is largest achievable offer (e.g., repair
expenses prospective buyer will incur).
* To justify a settlement, estimate likely amount of collection
from borrower/guarantors (refer to affidavits and asset
searches).
* For each applicable alternative, describe time necessary (e.g.,
sale dates) estimate collection, operating and capital expenses
(list detailed assumptions on NPV model), and net present value --
refer to supporting exhibits.
SECTION XIV/ STRATEGY AND TIMETABLE FOR RESOLUTION OF ASSET:
- ------------------------------------------------------------
* establish goal for completion
* document time & steps necessary to resolve asset
* summarize NPV of alternatives as compared to Recommendation
* document time and steps necessary to resolve asset.
SECTION XV/ SUBSTANTIATION:
- ---------------------------
* bullet format
* hit the high points
V. EXHIBITS
* The exhibits are for amplification and should be referred to and
explained in the Report Memorandum. The reader should refer to the
attachments for detail only and not for part of the decision making
process.
* The exhibits would typically be included in an order which
complements the decision making process; and therefore should also
logically follow the order as presented in the case memorandum. An
exception would be the Present Value Analysis which is referenced
in Section XIII of the Report Memorandum, but is included as an
Exhibit.
* Examples of some exhibits are:
* Present Value Analysis
* Location Map
* Operating Data (on the Collateral Property)
* Appraisal Valuation
* Financial Information on the Borrower/Guarantors/Assuming
Party
* Settlement Agreement with Attachments
* Title Report
* Bankruptcy Discharge
* Photos
* Inspection
* Environmental Site Assessment Executive Summary
* Foreclosure/Deed-in-Lieu/Bid Price Worksheet
* Proposal Letter from Borrower
* REMIC Opinions (post securitization)
* Any prior approvals by "Servicer" (include Executive Summary
only)
VII. OTHER IDEAS/COMMENTS
* Use bullet format as often as possible
* "economy of words"; simplify sentences
* footnote information sources (for financial data and other
general statements) (i.e. the Borrower indicated...)
VI. EXAMPLES OF ASSET STRATEGY REPORTS/RECOMMENDATIONS
* Extension of Maturity
* Extension of Maturity with Modification of Terms (i.e. must
restructure terms due to weaknesses in credit)
* Assumption/Assumption with Release of Originating Party
* Modification/Restructure, but not due to Maturity.
* Partial Release of Collateral/Obligor due to change in
situation with Borrower (can include many issues)
* Foreclosure
* Litigation for Collection due to default
* Bankruptcy Plan Approval (could relate to or incorporate
previous examples)
* Discounted Settlement
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
(Date)
(Certificate Registrar Name and Address)
Re: J.P. Morgan Commercial Mortgage Finance Corp.,
Mortgage Pass-Through Certificates,
Series 1997-5, Class ( )
----------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
---
(the "Transferor") to
- ----------------------
(the "Transferee") of a Certificate
- ---------------------------------------
evidencing a % Percentage Interest in the captioned Class of Certificates
---
(the "Certificate"), pursuant to Section 8.02 of the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
September 1, 1997, among J.P. Morgan Commercial Mortgage Finance Corp., as
depositor, Midland Loan Services, L.P., as master servicer and special
servicer, LaSalle National Bank, as trustee, and ABN AMRO Bank N.V., as
fiscal agent. All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferor
hereby certifies, represents and warrants to you, as Certificate Registrar,
that:
1. The Transferor is the lawful owner of the Certificate with the
full right to transfer the Certificate free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Certificate, any interest in the Certificate or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Certificate, any interest in the Certificate
or any other similar security from, or otherwise approached or
negotiated with respect to the Certificate, any interest in the
Certificate or any other similar security with, any person by means of
any form of general solicitation or general advertising, including but
not limited to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar news medium or broadcast
over television or radio, or any seminar or meeting whose attendees have
been invited by any general solicitation or advertising, or in any
manner which would constitute a distribution under the Securities Act of
1933 (the "1933 Act") or which would render the disposition of the
Certificate a violation of Section 5 of the 1933 Act or require
registration pursuant thereto.
------------------------------
(Transferor)
By:
--------------------------
Name:
-----------------------
Title:
----------------------
EXHIBIT D-1
FORM OF INVESTMENT LETTER --
QUALIFIED INSTITUTIONAL BUYER
(Date)
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
(collectively, as Initial Purchasers
in connection with the Private
Placement Memorandum referred to below)
(Trustee Name and Address)
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 1997-C5, Class X, Class F, Class G, Class H, Class NR-I,
Class NR-P, Class R-I, Class R-II and Class R-III (the "Certificates") of
J.P. Morgan Commercial Mortgage Finance Corp. (the "Depositor"), we confirm
that:
1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated September 25, 1997, relating
to the Certificates and such other information as we deem necessary in
order to make our investment decision. We understand that the Private
Placement Memorandum speaks only as of its date and that the information
contained therein may not be correct or complete as of any time
subsequent to such date.
2. We understand that the Certificates have not been, and will
not be registered under the Securities Act of 1933, as amended (the
"Act") and may not be sold except as permitted by the restrictions and
conditions set forth in the Pooling and Servicing Agreement dated as of
September 1, 1997 relating to the Certificates and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer
the Certificates except in compliance with, such restrictions and
conditions and the Act. We understand that on any proposed resale of
any Certificates, we will be required to furnish to the Trustee such
certifications, legal opinions and other information as it may require
to confirm that the proposed sale is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements
of the Act. We further understand that the Certificates will bear a
legend to the foregoing effect.
3. We are a "qualified institutional buyer" (within the meaning
of Rule 144A under the Act) (a "QIB") and we are acquiring the
Certificates for our own account or for the account of a QIB for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Act, and have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each
able to bear the economic risk of our or their investment. We
acknowledge that the sale of the Certificates to us is being made in
reliance on Rule 144A.
4. We are acquiring each of the Certificates purchased by us for
our own account or for a single account (which is a QIB and from which
no resale, pledge or other transfer may be made except to another QIB)
as to each of which we exercise sole investment discretion.
5. We are not an employee benefit plan (a "Plan") subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") or a person acting on behalf of such a Plan or
using the assets of such a Plan to acquire the Certificates.
You are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
-----------------------------
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
EXHIBIT D-2
FORM OF INVESTMENT LETTER -
REGULATION S
(Date)
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
(collectively, as Initial Purchasers
in connection with the Private
Placement Memorandum referred to below)
(Trustee Name and Address)
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 1997-C5, Class X, Class F, Class G, Class H, Class NR-I,
Class NR-P, Class R-I, Class R-II and Class R-III (the "Certificates") of
J.P. Morgan Commercial Mortgage Finance Corp. (the "Depositor"), we confirm
that:
1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated September 25, 1997, relating
to the Certificates and such other information as we deem necessary in
order to make our investment decision. We understand that the Private
Placement Memorandum speaks only as of its date and that the information
contained therein may not be correct or complete as of any time
subsequent to such date.
2. We understand that the Certificates have not been, and will
not be registered under the Securities Act of 1933, as amended (the
"Act") and may not be sold except as permitted by the restrictions and
conditions set forth in the Pooling and Servicing Agreement dated as of
September 1, 1997 relating to the Certificates and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer
the Certificates except in compliance with, such restrictions and
conditions and the Act. We understand that on any proposed resale of
any Certificates, we will be required to furnish to the Trustee such
certifications, legal opinions and other information as it may require
to confirm that the proposed sale is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements
of the Act. We further understand that the Certificates will bear a
legend to the foregoing effect.
3. We are a "qualified institutional buyer" (within the meaning
of Rule 144A under the Act) (a "QIB") and we are acquiring the
Certificates for our own account or for the account of a QIB for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Act, and have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each
able to bear the economic risk of our or their investment. We
acknowledge that the sale of the Certificates to us is being made in
reliance on Rule 144A.
4. We are aware that the purchase of such Certificates is being
made in reliance on the exemption from registration provided by
Regulation S and understand that the Certificates offered in reliance on
Regulation S will bear the appropriate legend set forth in the Pooling
and Servicing Agreement, and be represented by one or more Regulation S
Global Certificates. The Certificates so represented may not at any
time be held by or on behalf of U.S. Persons as defined in Regulation S
under the Securities Act. Neither we nor any beneficial owner of the
Certificates that we may hold is not, and will not be, a U.S. Person as
defined in Regulation S under the Securities Act. Before any interest
in a Regulation S Global Certificate may be offered, resold, pledged or
otherwise transferred to a person who takes delivery in the form of an
interest in a Physical Certificate, the transferee will be required to
provide the Trustee with a written certification as to compliance with
the transfer restrictions.
5. We are not an employee benefit plan (a "Plan") subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") or a person acting on behalf of such a Plan or
using the assets of such a Plan to acquire the Certificates.
You are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
-----------------------------
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
EXHIBIT D-3
FORM OF INVESTMENT LETTER -
RULE 144A
(Date)
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
(collectively, as Initial Purchasers
in connection with the Private
Placement Memorandum referred to below)
(Trustee Name and Address)
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 1997-C5, Class X, Class F, Class G, Class H, Class NR-I,
Class NR-P, Class R-I, Class R-II and Class R-III (the "Certificates") of
J.P. Morgan Commercial Mortgage Finance Corp. (the "Depositor"), we confirm
that:
1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated September 25, 1997, relating
to the Certificates and such other information as we deem necessary in
order to make our investment decision. We understand that the Private
Placement Memorandum speaks only as of its date and that the information
contained therein may not be correct or complete as of any time
subsequent to such date.
2. We understand that the Certificates have not been, and will
not be registered under the Securities Act of 1933, as amended (the
"Act") and may not be sold except as permitted by the restrictions and
conditions set forth in the Pooling and Servicing Agreement dated as of
September 1, 1997 relating to the Certificates and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer
the Certificates except in compliance with, such restrictions and
conditions and the Act. We understand that on any proposed resale of
any Certificates, we will be required to furnish to the Trustee such
certifications, legal opinions and other information as it may require
to confirm that the proposed sale is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements
of the Act. We further understand that the Certificates will bear a
legend to the foregoing effect.
3. We are a "qualified institutional buyer" (within the meaning
of Rule 144A under the Act) (a "QIB") and we are acquiring the
Certificates for our own account or for the account of a QIB for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Act, and have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each
able to bear the economic risk of our or their investment. We
acknowledge that the sale of the Certificates to us is being made in
reliance on Rule 144A.
4. We are acquiring each of the Certificates purchased by us
pursuant to an exemption from registration provided by Rule 144 under
the Securities Act.
5. We are not an employee benefit plan (a "Plan") subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") or a person acting on behalf of such a Plan or
using the assets of such a Plan to acquire the Certificates.
You are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
-----------------------------
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
EXHIBIT E
FORM OF INVESTMENT LETTER --
ACCREDITED INVESTOR
(Date)
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
(collectively, as Initial Purchasers
in connection with the Private
Placement Memorandum referred to below)
(Trustee Name and Address)
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 1997-C5, Class X, Class F, Class G, Class H, Class NR-I,
Class NR-P, Class R-I, Class R-II and Class R-III (the "Certificates") of
J.P. Morgan Commercial Mortgage Finance Corp. (the "Depositor"), we confirm
that:
1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated September 25, 1997, relating
to the Certificates and such other information as we deem necessary in
order to make our investment decision. We understand that the Private
Placement Memorandum speaks only as of its date and that the information
contained therein may not be correct or complete as of any time
subsequent to such date.
2. We understand that the Certificates have not been, and will
not be registered under the Securities Act of 1933, as amended (the
"Act") and may not be sold except as permitted by the restrictions and
conditions set forth in the Pooling and Servicing Agreement dated as of
September 1, 1997 relating to the Certificates and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer
the Certificates except in compliance with, such restrictions and
conditions and the Act. We understand that on any proposed resale of
any Certificates, we will be required to furnish to the Trustee such
certifications, legal opinions and other information as it may require
to confirm that the proposed sale is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements
of the Act. We further understand that the Certificates will bear a
legend to the foregoing effect.
3. We are an "accredited investor" (as defined in Rule 501(a)(1),
(2), (3), or (7) under the Act) and we are acquiring the Certificates
for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Act, and have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each
able to bear the economic risk of our or their investment.
4. We are acquiring each of the Certificates purchased by us for
our own account or for a single account (each of which is an "accredited
investor" and from which no resale, pledge or other transfer may be made
except to another "accredited investor") as to which we exercise sole
investment discretion.
5. We are not an employee benefit plan (a "Plan") subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") or a person acting on behalf of such a Plan or
using the assets of such a Plan to acquire the Certificates.
You are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
------------------------------
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
EXHIBIT F-1
FORM OF TRANSFER AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
(NAME OF OFFICER), being first duly sworn, deposes and says that:
1. He is the (Title of Officer) of (Name of Owner) (the record or
beneficial owner (the "Owner") of J.P. Morgan Commercial Mortgage Finance
Corp., Mortgage Pass-Through Certificate, Series 1997-C5, Class ( ), No.
---
(the "Class ( ) Certificate")), a duly organized and
--------------------
existing under the laws of (the State of ) (the United States),
-------------
on behalf of which he makes this affidavit. Capitalized terms used but not
defined herein have the respective meanings assigned thereto in the Pooling
and Servicing Agreement pursuant to which the Class ( ) Certificate was
issued.
2. The Owner (i) is and will be a "Permitted Transferee" as of (date
of transfer) and (ii) is acquiring the Class ( ) Certificate for its own
account or for the account of another Owner from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any person other than a "disqualified organization" or a
possession of the United States. (For this purpose, a "disqualified
organization" means the United States, any state or political subdivision
thereof, any agency or instrumentality of any of the foregoing (other than an
instrumentality all of the activities of which are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by any such governmental entity) or any foreign
government, international organization or any agency or instrumentality of
such foreign government or organization, any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives)
that is generally exempt from federal income tax unless such organization is
subject to the tax on unrelated business taxable income.
3. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class ( ) Certificate to disqualified organizations under
the Internal Revenue Code of 1986, as amended, that applies to all transfers
of the Class ( ) Certificate after March 31, 1988; (ii) that such tax would
be on the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a non-Permitted Transferee, on
the agent; (iii) that the person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such person
an affidavit that the transferee is a Permitted Transferee and, at the time
of transfer, such person does not have actual knowledge that the affidavit is
false.
4. The Owner is aware of the tax imposed on a "pass-through entity"
holding the Class ( ) Certificate if at any time during the taxable year of
the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes
a regulated investment company, a real estate investment trust or common
trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Owner is aware that it cannot transfer the Class
( ) Certificate unless the transferee, or the transferee's agent, delivers to
the Certificate Registrar, among other things, an affidavit in substantially
the same form as this affidavit.
6. The Owner consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a
reasonable arrangement to ensure that the Class ( ) Certificate will only be
owned, directly or indirectly, by an Owner that is a Permitted Transferee.
7. The Owner's taxpayer identification number is
.
- -------------------------
8. No purpose of the Owner relating to its purchase of a Class ( )
Certificate is or will be to impede the assessment or collection of any tax.
9. The Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as the Class ( )
Certificate remains outstanding.
10. The Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as the
Class ( ) Certificate remains outstanding.
11. No purpose of the Owner relating to any sale of any Class ( )
Certificate will be to impede the assessment or collection of any tax.
12. The Owner is not a Non-United States Person.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, pursuant to the authority of its Board of Directors, by its
(Title of Officer) and its Corporate Seal to be hereunto attached, attested
by its (Assistant) Secretary, this day of , 199_.
---- ----------------
(NAME OF OWNER)
By:
-----------------------------
(Name of Officer)
(Title of Officer)
(Corporate Seal)
ATTEST:
- ----------------------
(Assistant) Secretary
Personally appeared before me the above-named (Name of Officer), known or
proved to me to be the same Person who executed the foregoing instrument and
to be the (Title of Officer) of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
Subscribed and Sworn before me this ____ day of 199_.
----------------------------------
NOTARY PUBLIC
COUNTY OF
------------------------
STATE OF
-------------------------
My Commission expires the
day of , 19__.
---- ---------------
EXHIBIT F-2
FORM OF TRANSFEROR CERTIFICATE
(Date)
(Certificate Registrar Name and Address)
Re: J.P. Morgan Commercial Mortgage Finance Corp.,
Mortgage Pass-Through Certificates, Series
1997-C5, Class ( )
----------------------------------------------
Dear Sirs::
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class ( ) Certificate, we have no knowledge the Transferee is not a
Permitted Transferee.
Very truly yours,
___________________________
(Transferor)
By:
--------------------------
Name:
Title:
EXHIBIT G
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Loan Property
Number Property Name Property Address Property City State
- ------ ------------------------------------------ --------------------------------------------- ------------------ --------
<S> <C> <C> <C> <C>
1 The Spectrum at Reston Town Center Reston Parkway Reston VA
2 79 Madison Avenue 79 Madison Avenue New York NY
3 Capital Office Park VI 6406 Ivy Lane Greenbelt MD
4 I-90 Preston Industrial Park 8110-8180 304th Ave. S.E. Preston WA
5 Los Colobos Shopping Center Los Colobos Avenue Carolina PR
6 Old Salem Village Apartments 3306 Culmore Court Falls Church VA
7 Southgate Square 24-690 Southpark Boulevard Colonial Heights VA
8 Hoboken Portfolio Various Hoboken NJ
9 Miramar Metroplex-Phase II 7380-7480 Miramar Road and 7630 Carroll Road San Diego CA
10 The Rotunda 711 West 40th Street Baltimore MD
11 Starks Office Building 455 South Fourth Avenue Louisville KY
12 The Exchange 116-126 North Maryland Avenue & 134-210 East Wil Glendale CA
13 Crosstown Plaza Shopping Center WC N. MIlitary Trail & CommunityDrive West Palm Beach FL
14 Club Pacifica RSD 12191 Cuyamaca College Drive Rancho San Diego CA
15 Terra Nova Shopping Center 300 - 386 East H Street Chula Vista CA
16 Point Richmond Technology Center 1001 & 1003 West Cutting Blvd. Point Richmond CA
17 Palm Springs Hilton 400 E. Tahquitz Canyon Way Palm Springs CA
18 Palomar Oaks Technology Park 6349 & 6359 Paseo DelLago & 1939, 1945, 1949 & 1 Carlsbad CA
19 Mesa Verde Apartments 14-19 90th Street Jackson Heights NY
20 Hilton Hotel and Resort 17120 Gulf Boulevard North Reddington Beach FL
21 Bay View Mobile Home Community 5100 Coe Ave. Seaside CA
22 Rego Park Nursing Home 111-26 Corona Ave. Flushing NY
23 Brentwood Plaza Shopping Ctr. 1595-1659 Route 23 South Wayne NJ
24 Cary Village Square Maynard Rd. and Cary Towne Blvd. Cary NC
25 BrandsMart, USA 4320 NW 167th St. Miami FL
26 Salina Meadows Office Park 220 Salina Meadows & 301 Plainfield Salina NY
27 Cress Creek Square Shopping Center 790 Royal St. George Drive Naperville IL
28 Miramar Metroplex - Phase III 7310 Miramar Rd. San Diego CA
29 Fountain Village Apartments 135 South Kolb Tucson AZ
30 Best Buy 21601 Victory Boulevard Canoga Park CA
31 Park Vista at Morningside Health Care Ctr 2525 & 2527 N. Brea Boulevard Fullerton CA
32 Sunset Lake Apartments 1610 Sunset Avenue Waukegan IL
33 American Financial Center No. 5 2400 Louisiana Blvd. NE Albuquerque NM
34 Springs at North Mesa 262 East Brown Road Mesa AZ
35 Hawthorne Suites Hotel 10 Westminster Way Road Lincolnshire IL
36 Aspen Place Apartments 2700 Indian Creek Blvd. Oklahoma City OK
37 Professional Hospital Supply Building Zevo Drive and Diaz Road Temecula CA
38 Holiday Gardens Apartments 2502 Independence Lane Madison WI
39 Clark Industrial Park 10-25 Walker Way Colonie NY
40 Broadway-Webster Medical Plaza, Ltd.,L.P. 3300 Webster Street Oakland CA
41 Riverpark Apartments 7803 South Wheeling Avenue Tulsa OK
42 Liberty Commons Nursing Home 390 Orleans Road North Chatham MA
43 Autumn Breeze Apartments 1679 South Highway 121 Lewisville TX
44 Riverview Mall 2350 Miracle Mile Road Bullhead City AZ
45 Westminster Tower Apartments 112th Street South & Park Avenue Tacoma WA
46 Gateway Square Shopping Center 4801-4899 Hopyard Road Pleasanton CA
47 West Oaks Village Shopping Center 14017 Westheimer Road Houston TX
48 In The Pines Apartments 205 S.E. 16th Avenue Gainesville FL
49 Woodlands of Arlington 2800 Lynnwood Drive Arlington TX
50 The Tiffany Buildings 393 & 401 Fifth Avenue New York NY
51 The Willows Apartments 3511 Roma Lane Middleton WI
52 Quality Inn - Holland Tunnel 180 12th Street Jersey City NJ
53 Pillsbury Manor, North, South & Gazebo 1530 Williston Rd. & 20 Harbor Rd. South Burlington VT
54 Brookstone Apartments 1401 North Lamb Boulevard Las Vegas NV
55 I-10 Gessner Place Shopping Center 1003- 1037 N Gessner Houston TX
56 The McCallum Glen Apartments 7740 McCallum Blvd. Dallas TX
57 Carriage Park Shopping Center 535 - 650 N. Carriage Pkwy. Wichita KS
58 2400 Stevens Center 2400 Stevens Blvd Richland WA
59 DuPont Building 6200 Hillcrest Drive Valley View OH
60 Home Base 1050 Old Alturas Road Redding CA
61 Timbercreek Apartments 6816 South 137th Plaza Omaha NE
62 Creekwood Apartments 2600 Camp Creek Parkway College Park GA
63 Heritage Park Apartments 3045 N. Alton Indianapolis IN
64 Belmont Warehousing Complex 217 S. Belmont Avenue Indianapolis IN
65 The Lodges Apartments 8307 Meadow Road Dallas TX
66 The LAM Research Corporation 4540 Cushing Prwy Fremont CA
67 Silvergate San Marcos Retirement Residence 1550 Security Place San Marcos CA
68 Hillside Shopping Center 7253 E. Silver Spring Blvd Ocala FL
69 Beechwood Manor 24600 Greater Mack St. Clair Shores MI
70 Villa Pacifica Apartments 18400 Lemon Drive Yorba Linda CA
71 Sunrise Heights Apartments 5405 Century Avenue Middleton WI
72 Chestnut Ridge Plaza 102 Chestnut Ridge Road Montvale NJ
73 Best Western 2261 East Irlo Bronson Highway Kissimmee FL
74 Mallow Mall Shopping Center 1050 Mall Road Covington VA
75 Stillwater Marketplace Shopping Center 1980 - 2080 Market Drive Stillwater MN
76 500 Maryland Avenue 500 Maryland Avenue Fort Washington PA
77 The Palms of Lake Worth 4905 Lantana Road Lake Worth FL
78 Chase Terrace Apartments 21450 Chase Street Canoga Park CA
79 Stanley Station Shopping Ctr. U.S. 69 & 151st Street Overland Park KS
80 Elden Plaza 150 Elden Streeet Herndon VA
81 Palisade Nursing Center 6819 JFK Memorial Blvd. East Guttenberg NJ
82 Miramar Metroplex - Phase I 8909, 8949, 8969 Kenamar Drive San Diego CA
83 Days Inn - East 11639 East Colonial Drive Orlando FL
84 Bally's Scandinavian Health Club 501 Village Boulevard West Palm Beach FL
85 Honey Creek Village Shopping Center Highway 20 & Honey Creek Road Conyers GA
86 Cedars of Liberty 200 West Ruth Ewing Road Liberty MO
87 Raintree Village Apartments 8 Raintree Circle Brockton MA
88 Willow Springs Apartments 3240 S.W. Doyle Place Aloha OR
89 Sullivan's Lumber Yard NE Corner of Oracle & Pastime Rd. Tucson AZ
90 The Sunset in Green Valley Shopping Center 4451 East Sunset Road Henderson NV
91 Creekwood Apartments 301 North 70th Terrace Kansas City KS
92 Harvey Oaks Plaza 14410-141632 West Center Road Omaha NE
93 Federal East Plaza Shopping Center 12008 I-10 East Houston TX
94 Villa Santini Plaza 7205 Estero Blvd. Fort Myers FL
95 Montecito Apartments 4341 N. 24th St. Phoenix AZ
96 The Willo-Wick Gardens 6880 West Fairfield Drive Pensacola FL
97 JumboSports 7848 County Line Rd. Littleton CO
98 Clopper II Research & Development 2 & 8 Metropolitan Court Gaithersburg MD
99 Leffingwell Manor 11410 Santa Gertrudes Avenue Whittier CA
100 JumboSports 7500 South Priest Drive Tempe AZ
101 Holiday Inn Express 5455 Winward Parkway West Alpharetta GA
102 Best Western Midway Hotel 780 Packer Dr. Ashwaubenon WI
103 Eastern Parkway Apartments 276-336 Eastern Parkway Irvington NJ
104 Arlington Farms Apartments 1800 Primrose Waco TX
105 Midtown Promenade, Phase II 931 Monroe Drive, NE Atlanta GA
106 Roseville Professional Center 2233 N. Hamline Avenue Roseville MN
107 Shady Grove Industrial Park - Bldgs. A,B,&D8501, 8517, 8705 Grovemont Circle Gaithersburg MD
108 Holiday Inn Express - Mesa, AZ 5750 East Main Street Mesa AZ
109 Cisco Systems Building 225 Baypoint Parkway San Jose CA
110 Bally's Scandinavian Health Club 21069 Military Trail Boca Raton FL
111 Airport Plaza 1755 East Plumb Lane Reno NV
112 Harrington Place 1700 Alma Drive Plano TX
113 Orange Commons Industrial 50 South Center Street Orange NJ
114 Summerset at International Crossing 5900 Cass Del Rey Circle Orlando FL
115 Independence Tower Building 4801 E. Independence Blvd. Charlotte NC
116 21021 Vanowen Street 21021 Vanowen Street Canoga Park CA
117 Woodbridge Court Apartments 7050 Pecos Street Westminster CO
118 Sacramento Center Phase II 8790 - 8796 Sacramento Drive Alexandria VA
119 The Oaks Apartments 305 Hobbs Road League City TX
120 Temple Terrace Shopping Center 8805-8825 N. 56th Street Temple Terrace FL
121 Plaza Del Lago 3400 - 3480 Del Lago Boulevard Escondido CA
122 Huntington Park Apartments 1027 21st Avenue NE Hickory NC
123 Southlake Tech Center #7 11227 Lakeview Lenexa KS
124 Northbridge Plaza 5700-5800 Frantz Road Dublin OH
125 Villa La Paloma Apartments 7722 Reseda Boulevard Reseda CA
126 Holiday Inn-Las Cruces 201 E. University Avenue Las Cruces NM
127 Appletree Townhome Apartments 2328 Cambellton Road SW Atlanta GA
128 Newberry Building 19 -27 Congress Street Portsmouth NH
129 Best Western - Cedar Point US 6 Highway, 1530 Cleveland Rd. Sandusky OH
130 Empire Park Shopping Center 108th and "Q" Street Omaha NE
131 The Corporate Apartments 2805 N.E. Expressway Access RD. Atlanta GA
132 Knights Inn 7475 W. Irlo Bronson Memorial Kissimmee FL
133 Portec Building 3200 Como Avenue Minneapolis MN
134 123 - 127 Lafayette Street 123 Lafayette Street New York NY
135 Security Shopping Center Northwest Corner of Main Street and Security Bou Colorado Springs CO
136 Cedar Creek Townhomes 5650 Bellaire Drive Benbrook TX
137 Nakoma Heights Apartments 4929 Chalet Gardens Road Madison WI
138 Hills Plaza 2400- 2412 Seneca Street Buffalo NY
139 Days Inn Monroeville 2727 Mosside Boulevard Monroeville PA
140 JumboSports 6635 Northeast Loop 820 North Richland Hills TX
141 Alhambra Apartments 101 Alhambra Place Madison WI
142 Arriba En Blanco Apartments 5200 Blanco Road San Antonio TX
143 Matley Plaza 961 Matley Lane Reno NV
144 Holiday Inn 3499 Street Road Bensalem PA
145 Town Line Center 664-666 Main Avenue Norwalk CT
146 Cloverly Village Center 15410-40 New Hampshire Avenue Cloverly MD
147 77 Moonachie Avenue 77 Moonachie Avenue Moonachie NJ
148 Villa Cascade Nursing Home 350 S. Eighth Street Lebanon OR
149 9021 Snowden Square Drive 9021 Snowden Square Drive Columbia MD
150 Glendale Retail Center 130 - 144 North Central Avenue Glendale CA
151 Westgate Shopping Center 2250 Highland Avenue Enterprise AL
152 Rancho Temecula Center 27713 - 27725 Jefferson Ave. Temecula CA
153 JumboSports 11100 North Central Expressway Dallas TX
154 Comfort Suites Hotel 1558 N. Main St. Altavista VA
155 Battenkill Plaza Route 7A Manchester VT
156 Valencia - Y Shopping Center 2510-2540 Main Street Los Lunas NM
157 Ranch Auto Center 9550 N. 90th Street Scottsdale AZ
158 International Common Market 771 Bell Rd. Nashville TN
159 Prince Georgetown Apartments 6201-6399 67th Court Riverdale MD
160 Sunrise Village Shopping Center 5420-5500St. Barnabas Road Oxon Hill MD
161 2316 Surf Avenue 2316 Surf Avenue Brooklyn NY
162 John Hanson Business Center 339 Busch's Frontage Road Annapolis MD
163 The Villas at Countryside 3771 Tampa Road Oldsmar FL
164 Park Clayton Apartments 6605-25 Clayton Avenue St. Louis MO
165 Atlantic Plaza Shopping Center 271 - 289 S. Atlantic Blvd. E. Los Angeles CA
166 Oakland Palm Apartments 4051-81 North Dixie Highway Oakland Park FL
167 A&F Service Center 3275-3309 Chamblee Dunwoody Rd Chamblee GA
168 Quality Inn and Suites 701 North Marine Blvd. Jacksonville NC
169 Emerson Ave. Revco 7915-7935 Emerson Ave. Indianapolis IN
170 Canyon Pass Apartments 7020 Grand Canyon Drive Austin TX
171 Dixieline Lumber 3607 Avacado Blvd La Mesa CA
172 Whitehall Apartments 2008 - 2103 Tynewood Drive Clarksville TN
173 Sacramento Center Phase I 8790 - 8796 Sacramento Drive Alexandria VA
174 Poore Brothers NWC of El Sol & La Cometa Dr. Goodyear AZ
175 Whitney Estates 89 - 33 Whitney Avenue Elmhurst NY
176 Stoneybrook of Raytown 9805 East 61st Street Raytown MO
177 Waldorf Manor 1211-1217-1219 Ocean Front Walk Los Angeles CA
178 165 - 167 First Avenue 165 - 167 First Avenue New York NY
179 Trailridge Shopping Center 75th at Neiman Road Shawnee KS
180 Shopper's Village 2434 Catasauqua Road Bethlehem PA
181 Willowcrest Apartments 2600 Nonesuch Road Abilene TX
182 JumboSports 5000 North 27th Street Lincoln NE
183 Northgate Shopping Center SWC of 7th St. & 11th St. NW Rochester MN
184 President's Square Shopping Center 8725 Marbach Road San Antonio TX
185 Colonial Arms Apartments 966 Silas Deane Highway Wethersfield CT
186 Santa Fe Professional Plaza 9755 North 90th Street Scottsdale AZ
187 Devonshire Apartments 902 - 953 Gribbin Lane Toledo OH
188 Lakes at 610 Service Center 2525 West Bellfort Avenue Houston TX
189 Days Inn Lewisville 1401 South Stemmons Freeway Lewisville TX
190 JumboSports 9350 Hickman Road Clive IA
191 Days Inn - Orangeburg 3691 St. Matthews Road Orangeburg SC
192 Best Western Midway Hotel 3033 W. College Ave. Grand Chute WI
193 Plummer Street 19900 Plummer Street Chatsworth CA
194 Artist Loft Building 900 East First Street Los Angeles CA
195 Best Western-Town House 730 N. Santa Fe Pueblo CO
196 Brookside Mobile Estates 3121 Highway 35 Hazlet NJ
197 Quality Inn - Colony 309 Page Street Williamsburg VA
198 Medlock Place Office Park 5380 & 5390 Peachtree Ind. Blvd. Norcross GA
199 Franklin Commons AutoCare Center 4211 S. Carothers Road Franklin TN
200 Angleton Manor Apartments 2100 Buchta Road Angleton TX
201 Ryan Manor/Bradford Arms Apts. 2450 Hartel Ave. Philadelphia PA
202 80 University Place 80 University Place New York NY
203 The Concord Apartments 2200 Wirt Road Houston TX
204 Everett Court Apartments 6500 Large Street Philadelphia PA
205 Ramada Limited Hotel 5625 Major Boulevard Orlando FL
206 Lafayette Rd. Revco 2927 Lafayette Rd. Indianapolis IN
207 The Baywood Square Apartments 1700 Baywood Drive Bay City TX
208 Northport Village 14275 Tamiami Trail (US 41) North Port FL
209 3939 South Karlov Avenue 3939 South Karlov Avenue Chicago IL
210 Harundale Professional Bldg 791-795 Aquahart Road Glen Burnie MD
211 Utah Central Self Storage 6380 S. 350 West / 7210 S. Redwood St Murray/West Jordan UT
212 Sherman Dr. Revco 3808 E. Washington St. Indianapolis IN
213 320 West Commercial 320 West Commercial Avenue Moonachie NJ
214 Pompano West Properties 4300 North Powerline Road Pompano Beach FL
215 Van Horn Holiday Inn Express 1905 Southwest Frontage Road Van Horn TX
216 Fleming Foods Warehouse 60 Industrial Parkway Cheektowaga NY
217 JumboSports 3814 Ambassador Caffery Parkway Lafayette LA
218 InnerSpace Mini Storage 2950 N. 73rd Street Scottsdale AZ
219 Sesqui Station 9600 Two Notch Road Columbia SC
220 74 Green Pond Road 74 Green Pond Road Rockaway NJ
221 Liberty Park 12th Street & Liberty Street Allentown PA
222 Horizon Building 1820 Midpark Lane Knoxville TN
223 Willow Walk Apartments 3808 N Ann Arvor Ave Oklahoma City OK
224 Broadway Shopping Center 500 - 508 W. Broadway Glendale CA
225 Highland Park West 4300 MacArthur Avenue Highland Park TX
226 Cedar Hills Apartments 4625 Tinker Diagonal Del City OK
227 Seronala Pines Apartments 3406 SW 31st Street Gainesville FL
228 JumboSports 8551 Rivers Ave North Charleston SC
229 JumboSports 7207 S. Interstate 35 Service Rd. Oklahoma City OK
230 Econo Lodge 3013 North Highway, 123 Bypass Seguin TX
231 411 East 118th Street 411 E. 118 Street New York NY
232 Temecula Plaza 41915-41925 Motor Car Parkway Temecula CA
233 Boulevard Plaza Shopping Center 2800-2828 El Cajon Blvd. San Diego CA
234 JumboSports 6959 East 21st Street Wichita KS
235 5450 Riggins Court 5450 Riggins Court Reno NV
236 Sun Plaza 3501 N. Federal Highway Boca Raton FL
237 Shady Grove Industrial Park-Building C 8571 Grovemont Circle Gaithersburg MD
238 Quail Oaks Apartments 12721 Quail Drive Balch Springs TX
239 Jefferson Triad Apartments 210-212 Jefferson Street Hoboken NJ
240 The Business Park of Santa Teresa 5290 McNutt Road Santa Teresa NM
241 Gainsford Center 7951 Gainsford Court Bristow VA
242 Savannah Professional Building 1250-1260 Morena Blvd. San Diego CA
243 8255-8265 Broadway 8255 -8265Broadway Elmhurst, Queens NY
244 The Shoppes at Knightdale 7110 U.S. Highway 64 East Knightdale NC
245 JumboSports 6301 S. University Little Rock AR
246 JumboSports 2323 Lakeland Drive Flowood MS
247 Autumn Park Apartments 16602 N. 25th Street Phoenix AZ
248 4 Taft Road 4 Taft Road Totowa NJ
249 Bally's Health & Fitness - Clearwater 28270 US Highway 19, North Clearwater FL
250 Crittenden Manor Apartments 801-23 Vernon Road Philadelphia PA
251 United Plaza Shopping Center 6121 Hillcroft Houston TX
252 Pendleton Revco 6336 Oaklandon Rd. Indianapolis IN
253 Casa Adobe Apartments 3617 Marion Drive Colorado Springs CO
254 Neighborhood Self Storage - Highland Dr 6075 S Highland Dr. Salt Lake City UT
255 1040 East Herndon Office Building 1040 East Herndon Avenue Fresno CA
256 Econo Lodge 2400 Stadium Road Lynchburg VA
257 Tidewater Crane & Rigging Co. 500 Newtown Road Virginia Beach VA
258 Alpine Village M H P 2959 Alpine Boulevard Bay City MI
259 Coastal Auto Service Center 1050 - 1098 East Thompson Blvd. Ventura CA
260 8300-8320 Central Park Drive 8300-8320 Central Park Drive Waco TX
261 Gallery Apartments 3950 Gallery Road Colorado Springs CO
262 770 Riverview Boulevard 770 Riverview Boulevard Tonawanda NY
263 North Bluff Shopping Center 6801 IH-35 Austin TX
264 The Stratford Apartments 1300 Nashville Parkway Gallatin TN
265 The Kiesub Center 3185 South Highland Drive Las Vegas NV
266 Hearth and Home Building 10305 Guilford Road Jessup MD
267 Broadmoor Place 28120 Front Street Temecula CA
268 The Professional Building 1831 Chestnut Street Philadelphia PA
269 Hearth and Home 11850 Canon Boulevard Newport News VA
</TABLE>
(table continued)
<TABLE>
<CAPTION>
Primary Master
Loan Original Cut Off Servicing Servicing
Number Zip Code Balance Balance Fee Fee Source
------ ---------- ------------- ------------- ----------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
1 20194 27,400,000 27,238,845 0.05000 0.01450 JPM
2 10016 19,430,000 19,374,593 0.11450 MCF
3 20770 16,100,000 16,071,543 0.05000 0.01450 JPM
4 98050 15,853,000 15,784,607 0.11450 MCF
5 00625 14,742,581 14,500,863 0.06450 SB
6 22041 14,200,000 14,164,385 0.05000 0.01450 JPM
7 23834 14,180,000 14,153,623 0.11450 MCF
8 07030 13,900,000 13,900,000 0.06450 SB
9 92126 13,800,000 13,759,336 0.11450 MCF
10 21211 13,500,000 13,470,486 0.05000 0.01450 JPM
11 40202 13,450,000 13,411,266 0.11450 MCF
12 91206 13,200,000 13,163,034 0.11450 MCF
13 33401 12,000,000 11,936,911 0.05000 0.01450 JPM
14 92020 11,600,000 11,578,638 0.11450 MCF
15 91910 11,100,000 11,060,410 0.11450 MCF
16 94804 11,000,000 10,954,995 0.05000 0.01450 JPM
17 92262 10,850,000 10,772,445 0.05000 0.01450 JPM
18 92009 10,300,000 10,252,204 0.11450 MCF
19 11372 10,000,000 9,954,728 0.05000 0.01450 JPM
20 33708 10,000,000 9,911,441 0.06450 SB
21 93955 9,750,000 9,690,070 0.05000 0.01450 JPM
22 11368 9,500,000 9,472,196 0.05000 0.01450 JPM
23 07470 9,500,000 9,471,915 0.06450 SB
24 27511 9,400,000 9,357,584 0.11450 MCF
25 33054 9,300,000 9,282,586 0.05000 0.01450 JPM
26 13212 9,000,000 8,969,103 0.05000 0.01450 JPM
27 60532 8,400,000 8,363,981 0.05000 0.01450 JPM
28 92121 8,100,000 8,076,520 0.11450 MCF
29 85710 8,200,000 8,002,577 0.05000 0.01450 JPM
30 91303 8,000,000 7,970,508 0.11450 MCF
31 92635 8,000,000 7,934,872 0.05000 0.01450 JPM
32 60087 8,000,000 7,810,028 0.05000 0.01450 JPM
33 87110 7,850,000 7,787,621 0.11450 MCF
34 85301 7,750,000 7,705,609 0.11450 MCF
35 60069 7,600,000 7,577,483 0.06450 SB
36 73120 7,500,000 7,482,078 0.11450 MCF
37 92590 7,500,000 7,436,586 0.11450 MCF
38 53704 7,217,000 7,187,412 0.06450 SB
39 12205 7,177,000 7,144,293 0.06450 SB
40 94609 7,200,000 7,137,459 0.05000 0.01450 JPM
41 74136 7,000,000 6,987,056 0.11450 MCF
42 02650 6,500,000 6,469,837 0.05000 0.01450 JPM
43 75067 6,400,000 6,373,854 0.11450 MCF
44 86442 6,300,000 6,281,345 0.11450 MCF
45 98444 6,200,000 6,200,000 0.11450 MCF
46 94588 6,100,000 6,086,934 0.05000 0.01450 JPM
47 77077 6,100,000 6,072,656 0.11450 MCF
48 32601 6,000,000 5,904,179 0.05000 0.01450 JPM
49 76013 5,750,000 5,727,528 0.11450 MCF
50 10016 5,700,000 5,689,760 0.06450 SB
51 53562 5,600,000 5,577,042 0.06450 SB
52 07302 5,600,000 5,572,457 0.06450 SB
53 05403 5,600,000 5,553,894 0.05000 0.01450 JPM
54 89110 5,500,000 5,493,778 0.05000 0.01450 JPM
55 77055 5,500,000 5,457,413 0.11450 MCF
56 75252 5,225,000 5,185,501 0.11450 MCF
57 67208 5,000,000 4,995,367 0.11450 MCF
58 99352 5,000,000 4,954,630 0.05000 0.01450 JPM
59 44125 4,900,000 4,891,603 0.11450 MCF
60 96003 4,900,000 4,886,685 0.06450 SB
61 68137 5,000,000 4,883,519 0.11450 MCF
62 30337 4,650,000 4,618,000 0.05000 0.01450 JPM
63 46222 4,700,000 4,588,997 0.05000 0.01450 JPM
64 46222 4,600,000 4,587,329 0.05000 0.01450 JPM
65 75231 4,650,000 4,586,361 0.05000 0.01450 JPM
66 94538 4,522,000 4,481,036 0.11450 MCF
67 92069 4,475,000 4,448,519 0.11450 MCF
68 34474 4,200,000 4,184,208 0.05000 0.01450 JPM
69 48080 4,200,000 4,171,831 0.05000 0.01450 JPM
70 92886 4,087,500 4,075,748 0.11450 MCF
71 53562 4,030,000 4,013,478 0.06450 SB
72 07645 3,975,000 3,962,107 0.06450 SB
73 34744 3,965,000 3,938,284 0.06450 SB
74 24426 3,825,000 3,814,815 0.06450 SB
75 55082 3,800,000 3,778,762 0.11450 MCF
76 19034 3,750,000 3,724,726 0.11450 MCF
77 33463 3,725,000 3,715,398 0.05000 0.01450 JPM
78 91304 3,700,000 3,695,524 0.12500 0.01450 SB
79 66211 3,675,000 3,671,262 0.06450 SB
80 22070 3,650,000 3,622,192 0.05000 0.01450 JPM
81 07093 3,600,000 3,593,980 0.06450 SB
82 92121 3,600,000 3,589,129 0.11450 MCF
83 32826 3,600,000 3,586,253 0.06450 SB
84 33401 3,600,000 3,555,785 0.05000 0.01450 JPM
85 30208 3,550,000 3,521,099 0.05000 0.01450 JPM
86 64068 3,520,000 3,514,025 0.06450 SB
87 02402 3,500,000 3,496,524 0.06450 SB
88 97007 3,500,000 3,494,051 0.11450 MCF
89 85705 3,500,000 3,493,500 0.05000 0.01450 JPM
90 89014 3,500,000 3,490,948 0.11450 MCF
91 66112 3,382,236 3,372,404 0.06450 SB
92 68144 3,350,000 3,350,000 0.06450 SB
93 77029 3,350,000 3,324,060 0.11450 MCF
94 33931 3,325,000 3,306,689 0.06450 SB
95 85016 3,300,000 3,294,667 0.05000 0.01450 JPM
96 32506 3,300,000 3,288,346 0.11450 MCF
97 80124 3,296,000 3,268,688 0.11450 MCF
98 20878 3,250,000 3,223,484 0.05000 0.01450 JPM
99 90604 3,215,000 3,212,258 0.06450 SB
100 85283 3,227,000 3,200,260 0.11450 MCF
101 30201 3,200,000 3,200,000 0.06450 SB
102 54304 3,200,000 3,194,047 0.05000 0.01450 JPM
103 07103 3,200,000 3,193,908 0.05000 0.01450 JPM
104 76706 3,200,000 3,192,447 0.11450 MCF
105 30308 3,200,000 3,180,472 0.05000 0.01450 JPM
106 55133 3,175,000 3,155,860 0.05000 0.01450 JPM
107 20877 3,170,000 3,144,137 0.05000 0.01450 JPM
108 85205 3,150,000 3,117,881 0.05000 0.01450 JPM
109 95110 3,100,000 3,086,218 0.05000 0.01450 JPM
110 33432 3,125,000 3,085,656 0.05000 0.01450 JPM
111 89509 3,100,000 3,073,110 0.05000 0.01450 JPM
112 75075 3,030,000 3,007,803 0.06450 SB
113 07050 3,000,000 3,000,000 0.06450 SB
114 32809 3,000,000 2,990,239 0.05000 0.01450 JPM
115 28212 3,000,000 2,973,941 0.05000 0.01450 JPM
116 91303 2,985,000 2,969,370 0.05000 0.01450 JPM
117 80221 3,000,000 2,964,333 0.05000 0.01450 JPM
118 22309 2,953,000 2,949,380 0.11450 MCF
119 77573 2,950,000 2,941,711 0.11450 MCF
120 33619 2,950,000 2,921,003 0.06450 SB
121 92029 2,900,000 2,897,560 0.11450 MCF
122 28601 2,900,000 2,896,510 0.05000 0.01450 JPM
123 66219 2,900,000 2,895,287 0.11450 MCF
124 43017 2,850,000 2,844,880 0.11450 MCF
125 91135 2,800,000 2,796,613 0.12500 0.01450 SB
126 88011 2,800,000 2,784,775 0.05000 0.01450 JPM
127 30311 2,800,000 2,776,272 0.05000 0.01450 JPM
128 03801 2,740,000 2,731,143 0.06450 SB
129 44870 2,800,000 2,728,684 0.05000 0.01450 JPM
130 68137 2,650,000 2,650,000 0.06450 SB
131 30345 2,650,000 2,645,255 0.05000 0.01450 JPM
132 34746 2,665,000 2,639,065 0.06450 SB
133 55440 2,650,000 2,629,613 0.05000 0.01450 JPM
134 10013 2,625,000 2,611,467 0.06450 SB
135 80911 2,600,000 2,588,293 0.11450 MCF
136 76109 2,570,000 2,565,296 0.11450 MCF
137 53711 2,550,000 2,539,546 0.06450 SB
138 14220 2,600,000 2,537,526 0.11450 MCF
139 15146 2,550,000 2,536,727 0.06450 SB
140 76180 2,500,000 2,493,249 0.11450 MCF
141 53713 2,500,000 2,491,247 0.06450 SB
142 78216 2,500,000 2,487,227 0.05000 0.01450 JPM
143 89502 2,500,000 2,476,972 0.11450 MCF
144 19020 2,490,000 2,472,898 0.06450 SB
145 06851 2,490,000 2,471,818 0.06450 SB
146 20904 2,450,000 2,450,000 0.11450 MCF
147 07074 2,425,000 2,420,519 0.11450 MCF
148 97355 2,450,000 2,418,810 0.05000 0.01450 JPM
149 21046 2,400,000 2,396,211 0.11450 MCF
150 91203 2,400,000 2,395,616 0.06450 SB
151 35205 2,400,000 2,395,476 0.05000 0.01450 JPM
152 92390 2,400,000 2,393,936 0.11450 MCF
153 75243 2,400,000 2,393,519 0.11450 MCF
154 24517 2,400,000 2,369,647 0.05000 0.01450 JPM
155 05255 2,350,000 2,345,693 0.11450 MCF
156 87058 2,325,000 2,317,023 0.11450 MCF
157 85258 2,300,000 2,289,565 0.05000 0.01450 JPM
158 37013 2,300,000 2,285,384 0.11450 MCF
159 20737 2,300,000 2,281,124 0.05000 0.01450 JPM
160 20744 2,625,000 2,243,498 0.05000 0.01450 JPM
161 11224 2,200,000 2,178,227 0.11450 MCF
162 21401 2,150,000 2,144,318 0.05000 0.01450 JPM
163 34677 2,150,000 2,125,841 0.06450 SB
164 63139 2,125,000 2,110,804 0.06450 SB
165 90022 2,100,000 2,096,164 0.06450 SB
166 33334 2,100,000 2,096,151 0.05000 0.01450 JPM
167 30341 2,100,000 2,094,614 0.05000 0.01450 JPM
168 28540 2,112,894 2,092,157 0.06450 SB
169 46266 2,060,000 2,055,330 0.05000 0.01450 JPM
170 78752 2,060,000 2,043,828 0.05000 0.01450 JPM
171 91941 2,050,000 2,040,612 0.05000 0.01450 JPM
172 NA 2,010,000 2,010,000 0.06450 SB
173 22309 2,000,000 1,997,548 0.11450 MCF
174 85338 2,000,000 1,996,437 0.05000 0.01450 JPM
175 11373 2,000,000 1,996,401 0.06450 SB
176 64133 2,000,000 1,992,853 0.06450 SB
177 90291 2,000,000 1,981,171 0.05000 0.01450 JPM
178 10003 1,970,000 1,958,624 0.06450 SB
179 66203 1,930,000 1,926,685 0.06450 SB
180 18017 1,925,000 1,910,167 0.05000 0.01450 JPM
181 79604 1,900,000 1,898,153 0.11450 MCF
182 68588 1,900,000 1,894,869 0.11450 MCF
183 55901 1,908,000 1,893,949 0.11450 MCF
184 78239 1,900,000 1,892,003 0.11450 MCF
185 06109 1,880,000 1,865,296 0.11450 MCF
186 85258 1,850,000 1,845,094 0.06450 SB
187 41612 1,850,000 1,841,245 0.11450 MCF
188 77054 1,850,000 1,835,768 0.11450 MCF
189 75067 1,830,000 1,830,000 0.06450 SB
190 50309 1,820,000 1,815,085 0.11450 MCF
191 29115 1,800,000 1,797,403 0.06450 SB
192 54914 1,800,000 1,796,652 0.05000 0.01450 JPM
193 91313 1,800,000 1,793,441 0.05000 0.01450 JPM
194 90012 1,800,000 1,784,938 0.05000 0.01450 JPM
195 81003 1,800,000 1,784,131 0.05000 0.01450 JPM
196 07730 1,749,000 1,744,370 0.06450 SB
197 23185 1,750,000 1,742,911 0.06450 SB
198 30071 1,730,000 1,726,663 0.05000 0.01450 JPM
199 37064 1,700,000 1,697,186 0.05000 0.01450 JPM
200 77515 1,700,000 1,696,528 0.06450 SB
201 19152 1,700,000 1,687,154 0.06450 SB
202 10003 1,700,000 1,687,133 0.06450 SB
203 77055 1,692,000 1,665,147 0.06450 SB
204 19149 1,675,000 1,658,455 0.06450 SB
205 32819 1,650,000 1,624,921 0.06450 SB
206 46222 1,620,000 1,614,603 0.05000 0.01450 JPM
207 77414 1,600,000 1,598,445 0.11450 MCF
208 34287 1,600,000 1,595,743 0.11450 MCF
209 60632 1,600,000 1,593,038 0.06450 SB
210 21061 1,600,000 1,592,453 0.05000 0.01450 JPM
211 84084 1,600,000 1,587,791 0.05000 0.01450 JPM
212 46227 1,580,000 1,574,736 0.05000 0.01450 JPM
213 07074 1,575,000 1,572,384 0.06450 SB
214 33073 1,575,000 1,560,311 0.05000 0.01450 JPM
215 79855 1,530,000 1,530,000 0.06450 SB
216 14227 1,525,000 1,513,938 0.11450 MCF
217 70503 1,500,000 1,495,949 0.11450 MCF
218 85251 1,500,000 1,493,209 0.05000 0.01450 JPM
219 29223 1,500,000 1,489,741 0.05000 0.01450 JPM
220 07866 1,500,000 1,488,957 0.06450 SB
221 18101 1,500,000 1,488,442 0.05000 0.01450 JPM
222 37921 1,450,000 1,443,795 0.06450 SB
223 73122 1,452,000 1,442,466 0.11450 MCF
224 91204 1,440,000 1,436,307 0.11450 MCF
225 75209 1,435,000 1,424,487 0.06450 SB
226 73115 1,400,000 1,398,623 0.11450 MCF
227 32608 1,400,000 1,397,366 0.06450 SB
228 29406 1,400,000 1,396,219 0.11450 MCF
229 73149 1,400,000 1,396,219 0.11450 MCF
230 78155 1,400,000 1,392,571 0.05000 0.01450 JPM
231 10029 1,400,000 1,385,468 0.11450 MCF
232 92390 1,380,000 1,375,418 0.11450 MCF
233 92104 1,350,000 1,347,400 0.11450 MCF
234 67205 1,350,000 1,346,354 0.11450 MCF
235 86502 1,350,000 1,345,303 0.11450 MCF
236 33431 1,325,000 1,322,423 0.05000 0.01450 JPM
237 20877 1,330,000 1,319,149 0.05000 0.01450 JPM
238 75180 1,300,000 1,279,970 0.05000 0.01450 JPM
239 07030 1,275,000 1,271,651 0.06450 SB
240 88008 1,276,000 1,270,457 0.11450 MCF
241 20136 1,250,000 1,240,477 0.05000 0.01450 JPM
242 92110 1,230,000 1,220,960 0.11450 MCF
243 11373 1,220,000 1,216,797 0.11450 MCF
244 27545 1,200,000 1,198,711 0.06450 SB
245 72209 1,200,000 1,196,759 0.11450 MCF
246 39208 1,200,000 1,196,759 0.11450 MCF
247 85032 1,200,000 1,196,550 0.11450 MCF
248 07512 1,200,000 1,196,153 0.06450 SB
249 34618 1,200,000 1,193,588 0.05000 0.01450 JPM
250 19119 1,200,000 1,191,123 0.11450 MCF
251 77081 1,200,000 1,184,577 0.11450 MCF
252 46236 1,180,000 1,176,069 0.05000 0.01450 JPM
253 80909 1,171,000 1,164,248 0.11450 MCF
254 84121 1,112,000 1,099,233 0.11450 MCF
255 93720 1,100,000 1,097,059 0.11450 MCF
256 24501 1,075,000 1,072,018 0.06450 SB
257 23462 1,050,000 1,044,261 0.05000 0.01450 JPM
258 48706 1,050,000 1,043,799 0.11450 MCF
259 93001 1,031,250 1,030,405 0.11450 MCF
260 76710 1,025,000 1,019,636 0.11450 MCF
261 80909 1,005,000 999,206 0.11450 MCF
262 14217 920,000 917,660 0.11450 MCF
263 78744 904,000 900,056 0.11450 MCF
264 37066 850,000 845,607 0.11450 MCF
265 89109 800,000 798,840 0.11450 MCF
266 20794 800,000 797,767 0.11450 MCF
267 92390 795,000 792,360 0.11450 MCF
268 19103 800,000 790,629 0.11450 MCF
269 23320 500,000 498,604 0.11450 MCF
</TABLE>
EXHIBIT H
(RESERVED)
EXHIBIT I
FORM OF LOAN SALE AGREEMENT
J.P. MORGAN COMMERCIAL MORTGAGE FINANCE CORP.,
PURCHASER,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
SELLER
LOAN SALE AGREEMENT
Dated as of September 1, 1997
$1,033,747,782
Fixed Rate Mortgage Loans
Series 1997-C5
This Loan Sale Agreement (the "Agreement"), dated as of September 1,
1997, is between J.P. Morgan Commercial Mortgage Finance Corp., as purchaser
(the "Purchaser"), and Morgan Guaranty Trust Company of New York, as seller
("MGT" or the "Seller").
Capitalized terms used in this Agreement not defined herein shall have
the meanings ascribed to them in the Pooling and Servicing Agreement dated as
of September 1, 1997 (the "Pooling and Servicing Agreement") among the
Purchaser, as depositor, Midland Loan Services, L.P., as master servicer and
special servicer, LaSalle National Bank, as trustee ("Trustee") and ABN AMRO
Bank N.V. as fiscal agent, pursuant to which the Purchaser will sell the
Mortgage Loans (as defined herein) to a trust fund and certificates
representing ownership interests in the Mortgage Loans will be issued by the
trust fund. Capitalized terms used in this Agreement not defined herein and
not defined in the Pooling and Servicing Agreement shall have the meanings
ascribed to them in the Mortgage Loan Purchase Agreements, each dated as of
September 1, 1997, between MGT and Smith Barney Mortrgage Capital Group, Inc.
and Prudential Securities Credit Corp., respectively. For purposes of this
Agreement, the "Mortgage Loans" refers to the mortgage loans listed on
Exhibit A hereto and "Mortgaged Properties" refers to the properties securing
such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of the
Mortgage Loans from the Seller to the Purchaser and in consideration of the
premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION I. Sale and Conveyance of Mortgages; Possession of Mortgage
--------------------------------------------------------
File. The Seller does hereby sell, transfer, assign, set over and convey
- ----
to the Purchaser all of its right, title, and interest in and to the Mortgage
Loans described in Exhibit A hereto, each related Mortgage File including all
interest and principal received on or with respect to the Mortgage Loans
after the Cut-off Date (other than payments of principal and interest first
due on the Mortgage Loans on or before the Cut-off Date) and, to the extent
of its rights and obligations thereunder with respect to the Mortgage Loans,
the Custodial Agreement. Upon sale of the Mortgage Loans, the ownership of
each Mortgage Note, the Mortgage and the contents of the related Mortgage
File will be vested in the Purchaser and immediately thereafter the Trustee
and the ownership of records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Seller
shall immediately vest in the Purchaser and immediately thereafter the
Trustee and shall be retained and maintained, in trust, by the Seller at the
will of the Purchaser and the Trustee in such custodial capacity only. The
Seller's records will accurately reflect the sale of each Mortgage Loan to
the Trustee. The Seller shall release its custody of the contents of any
Mortgage File only in accordance with the Custodial Agreement.
As the purchase price for the Mortgage Loans, the Purchaser shall pay to
the Seller or at the Seller's direction the net proceeds of the offering of
the Certificates (net of any underwriting and placement agent fees).
SECTION II. Books and Records. From and after the sale of the
-----------------
Mortgage Loans to the Purchaser, record title to each Mortgage and the
related Mortgage Note shall be transferred to the Trustee in accordance with
this Agreement. All rights arising out of the Mortgage Loans, including, but
not limited to, all funds received on or in connection with a Mortgage Loan,
shall be received and held by the Seller in trust for the benefit of the
Trustee as the owner of the Mortgage Loans.
The transfer of each Mortgage Loan shall be reflected on the Seller's
balance sheets and other financial statements as a sale of the Mortgage Loans
by the Seller to the Purchaser. The Seller shall be responsible for
maintaining, and shall maintain, a set of records for each Mortgage Loan
which shall be clearly marked to reflect the ownership of each Mortgage Loan
by the Trustee pursuant to the Pooling and Servicing Agreement.
SECTION III. Delivery of Mortgage Loan Documents. On the Delivery
-----------------------------------
Date, the Seller shall deliver or cause to be delivered to the Trustee or its
custodian each of the following documents for each Mortgage Loan:
a. the original or, if accompanied by a "lost note" affidavit, a
copy of the Mortgage Note, endorsed by MGT in blank or to the
order of the Trustee;
b. the original Mortgage, and any intervening assignments (or
certified copies of such assignments) thereof, in each case
with evidence of recording indicated thereon or a certified
copy thereof if not returned from the applicable recording
office;
c. 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;
d. an assignment of the Mortgage, executed by MGT in blank or to
the order of the Trustee, with the assignment to the Trustee
in the following form:
"LaSalle National Bank, as trustee for J.P. Morgan Commercial
Mortgage Finance Corp. Mortgage Pass-Through Certificates
Series 1997-C5", in recordable form;
e. 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 which transferred such Mortgage Loan in blank
or to the order of the Trustee, with the assignment to the
Trustee in the following form: "LaSalle National Bank, as
trustee for J.P. Morgan Commercial Mortgage Finance Corp.
Mortgage Pass-Through Certificates Series 1997-C5";
f. 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;
g. 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;
h. with respect to any Mortgage Loan secured by a leasehold
interest, a certified copy of the related ground lease;
i. 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;
j. 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;
k. the original appraisal; and
l. any escrow, guarantee and environmental liability agreement.
SECTION IV. Treatment as a Security Agreement. The Seller,
---------------------------------
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser, all of its right, title and interest in and to the Mortgage Loans.
The parties intend that such conveyance of the Seller's right, title and
interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a purchase and sale and not a loan. If such conveyance is deemed
to be a pledge and not a sale, then the parties also intend and agree that
the Seller shall be deemed to have granted, and in such event does hereby
grant, to the Purchaser, a first priority security interest in all of its
right, title and interest in, to and under the Mortgage Loans, all payments
of principal or interest on such Mortgage Loans, all other payments made in
respect of such Mortgage Loans and all proceeds thereof and that this
Agreement shall constitute a security agreement under applicable law. If
such conveyance is deemed to be a pledge and not a sale, the Seller consents
to the Purchaser hypothecating and transferring such security interest in
favor of the Trustee and transferring the obligation secured thereby to the
Trustee.
SECTION V. Recordation of Assignments of Mortgage. The Purchaser
--------------------------------------
shall require, to the extent required in the Pooling and Servicing Agreement,
the Seller to record in the appropriate public recording office for real
property the intermediate assignments of the Mortgage Loans, the Assignments
of Mortgage from the Seller to the Trustee in connection with the Pooling and
Servicing Agreement. All recording fees relating to the initial recordation
of such intermediate assignments and Assignments of Mortgage shall be paid by
the Seller.
SECTION VI. Representations and Warranties. A. Purchaser
------------------------------
represents and warrants it is a corporation duly organized, validly existing,
and in good standing in the State of Delaware.
B. Seller represents and warrants it is a banking corporation duly
organized, validly existing, and in good standing in the State of New York.
C. Seller represents and warrants that immediately prior to the sale
and assignment contemplated herein, the Seller was the sole owner of the
Mortgage Loans free and clear of any and all liens, pledges, charges of
security interests of any nature and has full right and authority to sell and
assign the same.
D. Seller and Purchaser each represents and warrants to the other
that:
1. it has the power and authority to own its property and to carry
on its business as now conducted;
2. it has the power to execute, deliver and perform this
Agreement;
3. the execution, delivery and performance of this Agreement have
been duly authorized by all requisite action by such corporation's or
board of directors and will not violate or breach any provision of any
organizational document or other agreement or instrument to which such
corporation is a party or by which it is bound, or constitute a default
or result in an acceleration under any of the foregoing, or result in
the violation of any law, rule, regulation, order, judgment or decree to
which such party or its property is subject; and
4. this Agreement constitutes a legal, valid and binding
obligation of such party enforceable in accordance with its terms.
5. all consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for
the execution, delivery and performance of this Agreement by such party
have been obtained or made.
E. Seller further makes the representations and warranties as to the
Mortgage Loans set forth in Exhibit B hereto as of the Delivery Date. Seller
hereby covenants and agrees that it shall cure any breach of such
representations and warranties or repurchase any Mortgage Loan as to which
there has been any such breach at the Purchase Price, to the extent that such
breach materially and adversely affects the value of any Mortgage Loan or the
interest of any Certificateholders therein. Such cure or repurchase shall
occur within 90 days of the receipt of notice by MGT of any such breach of a
representation and warranty in accordance with Section 2.04 of the Pooling and
Servicing Agreement.
F. The representations and warranties of the parties hereto shall
survive the execution and delivery and any termination of this Agreement.
SECTION VII. Expenses. The Seller will pay all costs and expenses of
--------
the Purchaser and the Underwriters in connection with the transactions
contemplated herein and in the Underwriting Agreement, including, but not
limited to: (i) the costs and expenses of the Purchaser in connection with
the purchase of the Mortgage Loans; (ii) the reasonable and documented fees
and disbursements of counsel to the Purchaser and the Underwriters; (iii) the
costs and expenses of reproducing and delivering the Pooling and Servicing
Agreement and this Agreement and printing (or otherwise reproducing,) and
delivering the Certificates; (iv) the reasonable and documented fees, costs
and expenses of the Trustee and its counsel; (v) all accounting fees and
disbursements; (vi) the costs and expenses in connection with the
qualification or exemption of the Certificates under state securities or blue
sky laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith; (vii) the costs and expenses in connection
with any determination of the eligibility of the Certificates for investment
by institutional investors in any jurisdiction and the preparation of any
legal investment survey, including reasonable fees and disbursements of
counsel in connection therewith; (viii) the costs and expenses in connection
with printing (or otherwise reproducing) and delivering the Registration
Statement and Prospectus and the reproducing and delivery of this Agreement
and the furnishing to the Underwriters of such copies of the Registration
Statement, Prospectus and this Agreement as the Underwriters may reasonably
request; and (ix) the fees of the rating agency or agencies requested to rate
the Certificates.
SECTION VIII. 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.
SECTION IX. Governing Law. This Agreement shall be construed in
-------------
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION X. No Third-Party Beneficiaries. The parties do not intend
----------------------------
the benefits of this Agreement to insure to any third party except as
expressly set forth in Section 11.
SECTION XI. Assignment. The Seller hereby acknowledges that the
----------
Purchaser has, concurrently with the execution hereof, executed and delivered
the Pooling and Servicing Agreement and that, in connection therewith, it has
assigned its rights hereunder to the Trustee for the benefit of the
Certificateholders.
SECTION XII. Notices. All demands, notices and communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by first class or registered mail, postage
prepaid, to (i) in the case of the Purchaser, J.P. Morgan Commercial Mortgage
Finance Corp., 60 Wall Street, New York, NY 10260 Attention: Michael
Jungman, President (ii) in the case of the Seller, Morgan Guaranty Trust
Company of New York, 60 Wall Street, New York, NY 10260, Attention: Steven
Palmer, Vice President and (iii) in the case of any of the preceding parties,
such other address as may hereafter be furnished to the other party in
writing by such Parties.
SECTION XIII. Amendment. This Agreement may be amended only by a
---------
written instrument which specifically refers to this Agreement and is
executed by Purchaser and Seller. This Agreement shall not be deemed to be
amended orally or by virtue of any continuing custom or practice.
SECTION XIV. Counterparts. This Agreement may be executed in any
------------
number of counterparts, and by the parties hereto in separate counterparts,
each of which when executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
J.P. MORGAN COMMERCIAL MORTGAGE FINANCE CORP.
By:
--------------------------------------------------
Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:
--------------------------------------------------
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(See Exhibit G to the Pooling and Servicing Agreement)
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF SELLER
(i) No Mortgage Loan is one month or more delinquent in payment of
principal and interest and no Mortgage Loan has been so delinquent more than
once in the 12-month period prior to the Delivery Date.
(ii) The Mortgage Loans are fixed rate mortgage loans with terms to
maturity at origination or most recent modification as set forth in the
Mortgage Loan Schedule.
(iii) The Mortgage Loan Schedule is true and correct in all material
respects.
(iv) At the time of the assignment of the Mortgage Loans to the
Purchaser hereunder, the Seller 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 Purchaser free and clear of any pledge, lien, encumbrance or
security interest.
(v) In respect of each Mortgage Loan, (A) in reliance on certified
copies of the incorporation or partnership or other entity documents, as
applicable, delivered in connection with the origination of such Mortgage
Loan, the related Mortgagor is an entity organized under the laws of a state
of the United States of America, the District of Columbia or the Commonwealth
of Puerto Rico and (B) the Seller has no actual knowledge that the related
Mortgagor is a party to any bankruptcy, reorganization, insolvency or similar
proceeding.
(vi) Each Mortgage Loan is secured by the related Mortgage which
establishes and creates a valid and subsisting first priority lien on the
related Mortgaged Property, or leasehold interest therein, comprising real
estate, free and clear of any liens, claims, encumbrances, participation
interests, pledges, charges or security interests subject only to Permitted
Encumbrances. Such Mortgage, together with any separate security agreement
or similar agreement, if any, establishes and creates a first priority
security interest in favor of the Seller in all personal property owned by
the Mortgagor that is used in, and is reasonably necessary to, the operation
of the related Mortgaged Property and, to the extent a security interest may
be created therein under the Uniform Commercial Code as in effect in the
relevant jurisdiction, the proceeds arising from the Mortgaged Property and
other collateral securing such Mortgage Loan, subject only to Permitted
Encumbrances. There exists with respect to such Mortgaged Property an
assignment of leases and rents provision, whether as part of the related
Mortgage or as a separate document or instrument, which establishes and creates
a first priority security interest in and to leases and rents arising in
respect of the related Mortgaged Property, subject only to Permitted
Encumbrances. There are no mechanics' or other similar liens or claims which
have been filed for work, labor or materials (nor, to the Seller's knowledge,
are any rights outstanding that under applicable law could give rise to any
such lien) affecting the related Mortgaged Property which are or may be prior
or equal to, or coordinate with, the lien of the Mortgage, except those which
are insured against pursuant to the applicable Title Insurance Policy (as
defined below). No Mortgage Note is secured by any collateral except the lien
created by the related Mortgage, any assignment of the related leases, and
any related security agreement and such Mortgaged Property does not secure
any other mortgage loan not represented by the related Mortgage Note; no
Mortgage Loan is cross-defaulted with any other mortgage loan other than a
Mortgage Loan nor is any Mortgage Loan secured by property which secures
another mortgage loan other than a Mortgage Loan.
(vii) The related Mortgagor under each Mortgage Loan has good and
indefeasible title in fee simple to the related Mortgaged Property, or
leasehold interest therein, comprising real estate except for any portion
thereof subject to a ground lease meeting the requirements of clause (xxi)
and except for any Permitted Encumbrances. No person has any outstanding
exercisable rights of record with respect to the purchase or sale of all or
any portion of such Mortgaged Property, except for rights of first refusal.
(viii) The Seller has received an ALTA lender's title insurance policy
or a comparable form of lender's title insurance policy as adopted in the
applicable jurisdiction (the "Title Insurance Policy") covering each
Mortgaged Property comprising real estate and insuring that the related
Mortgage is a valid first lien on the Mortgagor's fee simple interest (or, if
applicable, leasehold interest) in such Mortgaged Property comprising real
estate, subject only to Permitted Encumbrances. Such Title Insurance Policy
was issued in connection with the origination of the related Mortgage Loan.
No claims have been made under such Title Insurance Policy. Such Title
Insurance Policy is in full force and effect, and will provide that the
insured includes the owner of the Mortgage Loan.
(ix) The related Assignment of Mortgage and the related assignment of
the assignment of rents and leases executed in connection with each Mortgage,
if any, have been recorded in the applicable jurisdiction (or, if not
recorded, have been submitted for recording and are in recordable form) and
constitute the legal, valid and binding assignment of such Mortgage and the
other Mortgage Loan Documents from the Seller to Trust Fund. The endorsement
of the related Mortgage Note by the Seller constitutes the legal, valid and
binding assignment of such Mortgage Note, and together with such Assignment
of Mortgage and the related assignment of assignment of leases and rents,
legally and validly conveys all right, title and interest in such Mortgage
Loan and Mortgage Loan Documents to the Trust Fund.
(x) (A) The Mortgage Loan Documents for each Mortgage Loan contain
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of the security, including realization by judicial or, if applicable,
non-judicial foreclosure, and there is no exemption available to the related
Mortgagor which would interfere with such right of foreclosure except any
statutory right of redemption or as may be limited by anti-deficiency laws or
by bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a proceeding
in equity or at law).
(B) Each of the related Mortgage Loan Documents is the legal, valid and
binding obligation of the parties thereto (subject to any non-recourse
provisions therein), enforceable in accordance with its terms, except as such
enforcement may be limited by anti-deficiency laws or bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law), and
except that certain provisions of such Mortgage Loan Documents are or may be
unenforceable in whole or in part under applicable state or federal laws, but
the inclusion of such provisions does not render any of the Mortgage Loan
Documents invalid as a whole, and such Mortgage Loan Documents taken as a
whole are enforceable to the extent necessary and customary for the practical
realization of the rights and benefits afforded thereby and, subject to the
foregoing qualifications, there is no offset, defense, counterclaim or right
of rescission with respect to any such Mortgage Loan Documents.
(C) The terms of the Mortgage Loans or the related Mortgage Loan
Documents, have not been altered, impaired, modified or waived in any
material respect.
(D) To the Seller's knowledge, with respect to each Mortgage which is a
deed of trust, a trustee, duly qualified under applicable law to serve as
such, currently so serves and is named in the deed of trust or has been
substituted in accordance with applicable law, and no fees or expenses are or
will become payable to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor or in
connection with the release of the related Mortgaged Property or related
security for such Mortgage Loan following payment of such Mortgage Loan in
full.
(xi) No Mortgage Loan has been satisfied, canceled, subordinated,
released or rescinded, in whole or in part, and the related Mortgagor has not
been released, in whole or in part, from its obligations under any related
Mortgage Loan Document.
(xii) Neither the Mortgage Loan nor any of the related Mortgage Loan
Documents is subject to any right of rescission, set-off, abatement,
diminution, valid counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of any such Mortgage Loan
Documents, or the exercise (in compliance with procedures permitted under
applicable law) of any right thereunder, render any Mortgage Loan Documents
subject to any right of rescission, set-off, abatement, diminution, valid
counterclaim or defense, including the defense of usury (subject to anti-
deficiency or one form of action laws and to bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditor's
rights generally and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law)), and no
such right of rescission, set-off, abatement, diminution, valid counterclaim
or defense has been asserted with respect thereto. None of the Mortgage Loan
Documents provides for a release of a portion of the Mortgaged Property from
the lien of the Mortgage except that certain of the Mortgage Loans may allow
partial release upon payment of an allocated loan amount which, in the case
of Mortgage Loans not exceeding approximately 5% of the aggregate principal
balance of the Mortgage Loans as of the Cut-off Date, may be formula-based.
(xiii) To the extent not otherwise represented herein, there is no
payment default and no other default under any of the related Mortgage Loan
Documents which has a material adverse effect on the Mortgage Loan; no such
default or breach has been waived by the Seller or on its behalf or, to the
Seller's knowledge, by the Seller's predecessors in interest with respect to
the Mortgage Loans; and, to the Seller's knowledge, no event has occurred
which, with the passing of time or giving of notice would constitute a
material default or breach. Such Mortgage Loan has not been accelerated and
no foreclosure or power of sale proceeding has been initiated in respect of
the related Mortgage.
(xiv) (A) The principal amount of such Mortgage Loan stated on the
Mortgage Loan Schedule has been fully disbursed as of the origination date
specified therein and there are no future advances required to be made by the
mortgagee under any of the related Mortgage Loan Documents. Any requirements
under the related Mortgage Loan Documents to completion of any on-site or
off-site improvements and to disbursements of any escrow funds therefor have
been complied with. The value of the Mortgaged Property relative to the
value reflected in the most recent appraisal thereof is not impaired by any
improvements which have not been completed. The Seller has not, nor to the
Seller's knowledge, has any predecessor in interest with respect to the
Mortgage Loans, in respect of such Mortgage Loan, directly or indirectly,
advanced funds or received any advance of funds by a party other than the
Mortgagor other than interest accruing on such Mortgage Loan, application and
commitment fees, escrow funds, points and reimbursements for fees and
expenses, from the date of disbursement of such Mortgage Loan to the Delivery
Date.
(B) No Mortgage Loan has capitalized interest included in its principal
balance, or provides for any shared appreciation rights or other equity
participation therein. No Mortgage Loan is an interest only loan.
(xv) The terms of the Mortgage Loan Documents evidencing such Mortgage
Loan comply in all respects with all applicable state or federal laws,
regulations and other material requirements pertaining to usury and any and
all other material requirements of any federal, state or local law to the
extent non-compliance would have a material adverse effect on the Mortgage
Loans.
(xvi) The related Mortgaged Property:
(1) is located on or adjacent to a dedicated road, or has access
to an irrevocable easement permitting ingress and egress;
(2) is served by public utilities and services generally available
in the surrounding community;
(3) is serviced by well or public water and sewer systems (or
septic facilities);
(4) has (including available shared space) parking required under
currently applicable law for the operation of the business
currently conducted thereon or is legally non-conforming with
respect to parking; and
(5) is one or more separate and complete tax parcels.
(xvii) The related Mortgaged Property is, in all material respects, in
compliance with, and is used and occupied in accordance with, all restrictive
covenants of record applicable to such Mortgaged Property and applicable laws
and all inspections, licenses and certificates of occupancy required by law,
ordinance or regulation to be made or issued with regard to the Mortgaged
Property have been obtained and are in full force and effect, except to the
extent the failure to obtain or maintain such inspections, licenses or
certificates of occupancy do not materially impair the current use of the
Mortgaged Property or the rights of a holder of the related Mortgage Loan.
(xviii) All taxes and governmental assessments which became due and
owing prior to the Closing Date in respect of the related Mortgaged Property
(excluding any related personal property) and which, if left unpaid, would
be, or might become, a lien on such Mortgaged Property having priority over
the related Mortgage, have been paid, or an escrow of funds in an amount
sufficient to cover such taxes and assessments has been established.
(xix) None of the improvements which form part of any related Mortgaged
Property lies outside the boundaries and building restriction lines of such
Mortgaged Property, and no improvements on adjoining properties encroach upon
such Mortgaged Property, except for immaterial encroachments which do not
materially adversely affect the security intended to be provided by the
related Mortgage or the use, enjoyment, value or marketability of such
Mortgaged Property. With respect to each Mortgage Loan, the property legally
described in the survey, if any, obtained for the related Mortgaged Property
for purposes of the origination thereof is the same as the property legally
described in the Mortgage.
(xx) (A) To the Seller's knowledge, in reliance on an engineering
report, to the extent available, the related Mortgaged Property is in good
repair and free and clear of any damage that would materially adversely
affect the value of such Mortgaged Property as security for such Mortgage
Loan and such Mortgaged Property has not been damaged by fire, wind or other
casualty or physical condition (including, without limitation, any soil
erosion or subsidence or geological condition), which damage has not been
fully repaired or for which escrows have not been established.
(B) There are no proceedings pending or, to the Seller's knowledge,
threatened, for the partial or total condemnation of the relevant Mortgaged
Property.
(xxi) No Mortgage Loan is secured in whole or in part by a leasehold
estate, except for the eleven (11) Mortgage Loans listed on Exhibit E hereto.
No such Mortgage Loan is secured in whole or in part by a leasehold estate
other than a ground lease (a "Ground Lease") which satisfies the following
conditions:
(A) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease provides that the interest of the lessee
thereunder may be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such lessee, its
successors or assigns, in a manner that would materially and adversely
affect the security provided by the Mortgage; the Seller has not consented
to any material change of record in the terms of such Ground Lease since
its recordation, with the exception of written instruments which are part
of the related Mortgage Loan File;
(B) Such Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage, other than
the related fee interest and Permitted Encumbrances and such Ground
Lease is, and provides that it shall remain, prior to any mortgage or
other lien upon the related fee interest;
(C) Such Ground Lease provides that upon foreclosure of the related
Mortgage or assignment of the Mortgagor's interest in such Ground Lease
in lieu thereof, the mortgagee under such Mortgage is entitled to become
the owner of such interest upon notice to, but without the consent of,
the lessor thereunder and, in the event that such mortgagee becomes the
owner of such interest, such interest is further assignable by such
mortgagee and its successors and assigns upon notice to such lessor, but
without a need to obtain the consent of such lessor;
(D) Such Ground Lease is in full force and effect and no default of
tenant or ground lessor is currently in existence under such Ground
Lease, nor is there any existing condition which, but for the passage of
time or the giving of notice, would result in a default under the terms
of such Ground Lease. Either such Ground Lease or a separate agreement
contains the ground lessor's covenant that it shall not amend, modify,
cancel or terminate such Ground Lease without the prior written consent
of the mortgagee under such Mortgage and any amendment, modification,
cancellation or termination of the Ground Lease without the prior
written consent of the related mortgagee, or its successors or assigns
is not binding on such mortgagee, or its successor or assigns;
(E) Such Ground Lease or other agreement requires the lessor thereunder
to give notice of any material default by the lessee to the mortgagee
under the related Mortgage, provided that such mortgagee has provided
the lessor with notice of its lien in accordance with the provisions of
such Ground Lease; and such Ground Lease or other agreement provides
that no such notice of default and no termination of the Ground Lease in
connection with such notice of default shall be effective against such
mortgagee unless such notice of default has been given to such mortgagee
and any related Ground Lease contains the ground lessor's covenant that
it will give to the related mortgagee, or its successors or assigns, any
notices it sends to the Mortgagor;
(F) Such Ground Lease or other agreement provides that (i) the
mortgagee under the related Mortgage is permitted a reasonable
opportunity to cure any default under such Ground Lease which is curable
after the receipt of notice of any such default before the lessor
thereunder may terminate such Ground Lease; (ii) in the case of any such
default which is not curable by such mortgagee, or in the event of the
bankruptcy or insolvency of the lessee under such Ground Lease, such
mortgagee has the right, following termination of the existing Ground
Lease or rejection thereof by a bankruptcy trustee or similar party, to
enter into a new ground lease with the lessor on substantially the same
terms as the existing Ground Lease; and (iii) all rights of the
Mortgagor under such Ground Lease (insofar as it relates to the Ground
Lease) may be exercised by or on behalf of such mortgagee under the
related Mortgage upon foreclosure or assignment in lieu of foreclosure;
(G) Such Ground Lease has an original term which extends not less than
ten years beyond the stated maturity date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds other than in respect of
a total or substantially total loss will be applied either to the repair
or restoration of all or part of the related Mortgaged Property, with
the mortgagee under such Mortgage or a financially responsible
institution acting as trustee appointed by it or by the lessor having
the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by the Seller), or to the payment in whole or
in part of the outstanding principal balance of such Mortgage Loan
together with any accrued and unpaid interest thereon; and
(I) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by the Seller; such
Ground Lease contains a covenant that the lessor thereunder is not
permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of any lessee in the relevant
portion of such Mortgaged Property subject to such Ground Lease for any
reason, or in any manner, which would materially adversely affect the
security provided by the related Mortgage.
(xxii) (A) An Environmental Site Assessment relating to the relevant
Mortgaged Property was reviewed by the Seller in connection with the
origination of such Mortgage Loan.
(B) Such Environmental Site Assessment reveals no known, and the Seller
has no knowledge of, circumstances or conditions with respect to the
Mortgaged Property that would (1) constitute or result in a material
violation of any Environmental Laws, (2) require any expenditure material in
relation to the principal balance of such Mortgage Loan to achieve or
maintain compliance in all material respects with any Environmental Laws, or
(3) require substantial cleanup remedial action or other extraordinary
response under any Environmental Laws in excess of any escrow amount
calculated pursuant to clause (C) below;
(C) To the Seller's knowledge, except for any Hazardous Materials being
handled in accordance with applicable Environmental Laws and except for any
Hazardous Materials present at such Mortgaged Property for which, to the
extent that a Environmental Site Assessment recommends remediation or other
action, there exists an amount in an escrow account pledged as security for
such Mortgage Loan under the relevant Mortgage Loan Documents estimated in
such Environmental Site Assessment as sufficient to pay the cost of such
remediation or other action in accordance with such Environmental Site
Assessment, (1) such Mortgaged Property is not being nor has it been used for
the treatment or disposal of Hazardous Materials; (2) no Hazardous Materials
are being used or stored or generated for off-site disposal or otherwise
present at such Mortgaged Property other than Hazardous Materials of such
types and in such quantities as are customarily used or stored or generated
for off-site disposal or otherwise present in or at properties of the
relevant property type; (3) such Mortgaged Property is not listed by any
governmental agency as containing any Hazardous Materials; and (4) such
Mortgaged Property is not subject to any environmental hazard (including,
without limitation, any situation involving Hazardous Materials) which under
the Environmental Laws would have to be eliminated before the sale of, or
which could otherwise reasonably be expected to adversely affect in more than
a de minimis manner the value or marketability of, such Mortgaged Property.
(xxiii) The Mortgaged Property is covered by Insurance Policies
providing the coverage described below. All premiums with respect to the
Insurance Policies insuring each Mortgaged Property have been paid in a
timely manner or escrowed to the extent required by the Mortgage Loan
Documents and the Seller has not received any notice of cancellation or
termination. The Seller has no knowledge that any action, omission,
misrepresentation, negligence, fraud or similar occurrence has taken place on
the part of any Person that would reasonably be expected to result in the
failure or impairment of full and timely coverage under any such Insurance
Policy. The relevant Mortgage Loan File contains the Insurance Policy
required for such Mortgage Loan or a certificate of insurance for such
Insurance Policy. Each Mortgage requires that the related Mortgaged
Property and all improvements thereon are covered by Insurance Policies
reasonably prescribed by the related mortgagee or providing coverage
against the lesser of full replacement cost and the outstanding principal
balance of the related Mortgage Loan sustained by (A) fire and extended
perils included within the classification "All Risk of Physical Loss" in an
amount sufficient to prevent the Mortgagor from being deemed a co-insurer and
to provide coverage on a full replacement cost basis (in some cases exclusive
of foundations and footings) or some other predetermined value basis; such
policies contain a standard mortgage clause naming mortgagee and its
successor in interest as additional insureds; (B) business interruption or
rental loss insurance in an amount at least equal to (a) 12 months of
operations or (b) in some cases all rents and other amounts customarily
insured under this type of insurance of the Mortgaged Property; (C) flood
insurance (if any portion of the improvements on the Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency,
with respect to certain Mortgage Loans, the Secretary of Housing and Urban
Development with respect to other Mortgage Loans, as having special flood
hazards); (D) workers' compensation; (E) comprehensive general liability
insurance in amounts as are generally required by commercial mortgage
lenders; all such Insurance Policies contain clauses providing they are not
terminable and may not be terminated or expire, without thirty (30) days
prior written notice to the Mortgagee (except where applicable law requires a
shorter period). In addition, each Mortgage shall permit the related
mortgagee to make premium payments to prevent the cancellation thereof and
shall entitle such mortgagee to reimbursement therefor.
(xxiv) All amounts required to be deposited by each Mortgagor at
origination under the related Mortgage Loan Documents have been deposited or
have been withheld from the related Mortgage Loan proceeds at origination and
there are no deficiencies with regard thereto.
(xxv) To the Seller's knowledge in reliance on the tenant estoppel
certificates delivered in connection with commercial tenants, lease summary
reports, the rent rolls as of the date set forth in Annex A to the Prospectus
Supplement dated September 12, 1997 in connection with the offering of the
Certificates (the "Prospectus Supplement") under the column captioned
"Occupancy as of" (the "Rent Rolls") and any other information obtained by
the Seller (A) no Significant Lease or other possessory interest not
specified on such Rent Roll is in effect with respect to the relevant
Mortgaged Property, (B) the related Mortgagor is the owner and holder of the
landlord's interest under each Significant Lease, (C) all Significant Leases
relating to the relevant Mortgaged Property are in full force and effect, (D)
no material term or condition of any Significant Lease has been amended or
modified in any material respect since the date of the Rent Roll for such
Mortgaged Property, (E) neither the Mortgagor nor any lessee thereunder is in
default in any material respect under a Significant Lease; (F) except as set
forth on the relevant Rent Roll, none of the tenants thereunder have been given
any free rent or concessions or abatements relating to the payment of rent or
additional rent which remain unexpired on the date hereof, nor have any such
tenants been given any credit for or offset or claim against the obligation
to pay rent, any fixed rent or additional rent by reason of prepayment of
rent or otherwise (except for rights to reimbursement for improvements to
leased space) and (G) there has been no termination or expiration of any
lease which would have a material and adverse effect on the value of the
related Mortgage Loan since the date of the Rent Roll. To the Seller's
knowledge the related Rent Rolls are true and correct in all material
respects. Each Significant Lease for each of the Mortgage Loans identified
as being secured by retail or office properties on the Mortgage Loan Schedule
contains a provision to the effect that such lease may not be amended,
terminated or cancelled by the lessee and the lessee may not be released from
its obligations thereunder, except in the case of (A) certain limited events
relating to material damage to, or destruction of, the Mortgaged Property or
condemnation of less than the entire Mortgaged Property which in any case the
lessee in good faith determines will render its continued occupancy and use
of the remainder of such Mortgaged Property economically unsound or which
occurs near the end of the lease term or (B) condemnation of all of the
Mortgaged Property.
(xxvi) To the Seller's knowledge, there are no actions, suits or
proceedings by or before any court or other governmental authority or agency
now pending or to the Seller's actual knowledge threatened against or
affecting the Mortgagor under any Mortgage Loan or any of the Mortgaged
Properties which, if determined against such Mortgagor or such Mortgaged
Property, would materially and adversely affect the value of such Mortgaged
Property or the ability of such borrower and/or such Mortgaged Property to
generate net cash flow to pay principal, interest and other amounts due under
the related Mortgage Loan.
(xxvii) Each Mortgage Loan complied at origination, in all material
respects, with all of the terms, conditions and requirements of the
underwriting standards applicable to such Mortgage Loan.
(xxviii) The originator of the Mortgage Loan or the Seller has
inspected or caused to be inspected each related Mortgaged Property within
the last 12 months.
(xxix) Each Mortgage requires the Mortgagor to provide the holder of
the Mortgage Loan with at least quarterly operating statements, Rent Rolls
except for the one-hundred six (106) Mortgage Loans listed on Exhibit E
hereto, which require annual operating statements.
(xxx) All escrow deposits and payments required by the terms of each
Mortgage Loan are in the possession, or under the control of the Seller, and
all amounts required to be deposited by the applicable Mortgagor under the
related Mortgage Loan Documents have been deposited, and there are no
deficiencies with regard thereto. All of the Seller's interest in such
escrows and deposits will be conveyed by the Seller to the Purchaser
hereunder.
(xxxi) The Seller did not engage in an adverse selection process in
selecting the Mortgage Loans for sale, assignment and transfer to the Trust
Fund.
(xxxii) No more than 5% of the aggregate outstanding principal amount
of the Mortgage Loans have the same Mortgagor or, to the Seller's knowledge,
are to Mortgagors which are entities controlled by one another or under
common control.
(xxxiii) Each Mortgagor with respect to a Mortgage Loan with a
principal balance as of the Cut-off Date in excess of 5% of the aggregate
principal balances as of the Cut-off Date is an entity whose organizational
documents provide that it is, and at least so long as the Mortgage Loan is
outstanding will continue to be, a Single Purpose Entity. For this purpose,
"Single Purpose Entity" shall mean a Person, other than an individual, whose
organizational documents provide that it shall engage solely in the business
of owning and operating a single property and which does not engage in any
business unrelated to such property and the financing thereof, does not have
any assets other than those related to its interest in the property or the
financing thereof or any indebtedness other than as permitted by the related
Mortgage or the other Mortgage Loan Documents, and the organizational
documents of which require that it have its own separate books and records
and its own accounts, in each case which are separate and apart from the
books and records and accounts of any other person.
(xxxiv) Such Mortgage Loan is directly secured by a mortgage on real
property, and either (i) substantially all of the proceeds of such Mortgage
Loan were used to acquire or improve or protect an interest in real property
(as that term is defined in United States Treasury Regulations Section
1.860G-2(a)(4)) that, at the date of origination, was the only security for
such Mortgage Loan or (ii) the fair market value of such interest in real
property was at least equal to 80% of the principal amount of such Mortgage
Loan at origination.
(xxxv) Each Mortgage contains a "due on sale" clause, which provides
for the acceleration of the payment of the unpaid principal balance of the
Mortgage Loan if, without the prior written consent of the holder, the
property subject to the Mortgage, or any interest therein, is directly or
indirectly transferred or sold (except that it may provide for up to three
assignments subject to the holder's approval of transferee, transfers to
affiliates or transfers of passive interests so long as the key principals or
general partner retains control). The Mortgage prohibits any further pledge
or lien on the Mortgaged Property, whether equal or subordinate to the lien
of the Mortgage, unless the prior written consent of the holder is obtained
or certain conditions set forth on the Mortgage Loan are satisfied.
(xxxvi) None of the Mortgage Loans is a participation interest in a
mortgage loan.
(xxxvii) With respect to each Mortgaged Property consisting of a
nursing home, to the Seller's knowledge, (a) the related Borrower is in
compliance in all material respects with all federal and state laws
applicable to the use and operation of the related Mortgaged Property and (b)
to the extent such Mortgaged Property participates in Medicare or Medicaid,
the related facility is in compliance in all material respects with the
requirements for participating in such programs.
(xxxviii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule
in Treasury Regulation Section1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage or any substantially similar successor
provision).
(xxxix) The originator is a mortgagee approved by Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act.
Defined Terms:
-------------
Other. For purposes of these representations and warranties, the term
-----
"to the Seller's knowledge" shall mean that no officer, employee or agent of
the Seller responsible for the underwriting, origination or sale of the
Mortgage Loans believes that a given representation or warranty is not true
or incomplete or inaccurate based upon the Seller's reasonable inquiry and
during the course of such inquiry, no such officer, employee or agent of the
Seller has obtained any actual knowledge of any facts or circumstances that
would cause such person to believe that such representation or warranty was
inaccurate or incomplete. Furthermore, all information contained in
documents which are part of or required to be part of a Mortgage Loan File
shall be deemed to be within the Seller's knowledge. For purposes of these
representations and warranties, the term "to the Seller's actual knowledge"
shall mean that a director, officer, employee or agent of the Seller
responsible for the underwriting, origination and sale of the Mortgage Loans
does not actually know of any facts or circumstances that would cause such
person to believe that such representation or warranty was inaccurate or
incomplete.
The term "in reliance on" means that:
(i) the Seller has examined and relied in whole or in part upon one or
more of the specified documents or other information in connection with a
given representation or warranty;
(ii) that the information contained in such document or otherwise
obtained by the Seller appears on its face to be consistent in all material
respects with the substance of such representation or warranty;
(iii) the Seller's reliance on such document or other information is
consistent with the standard of care exercised by prudent lending
institutions originating commercial mortgage loans; and
(iv) although the Seller is under no obligation to verify independently
the information contained in any document specified as being relied upon by
it, the Seller believes the information contained therein to be true,
accurate and complete in all material respects and has no actual knowledge of
any facts or circumstances which would render reliance thereon unjustified
without further inquiry.
Exhibit C
FORM OF SELLER'S OFFICER'S CERTIFICATE
I, __________________, a duly elected and acting Vice President of
Morgan Guaranty Trust Company of New York, a New York banking corporation
("MGT") hereby certify as follows:
Each of the obligations of MGT required to be performed by it on or
prior to the date hereof pursuant to the terms of the Loan Sale Agreement
dated as of September 1, 1997 (the "Loan Sale Agreement") by and between MGT,
as seller and J.P. Morgan Commercial Mortgage Finance Corp., as purchaser,
have been duly performed and complied with and all of the representations and
warranties of MGT under the Loan Sale Agreement are true and correct as of
the date hereof and no event has occurred which constitutes or would, with
notice or passage of time, constitute a default under such agreement.
IN WITNESS WHEREOF, I have hereunto signed my name this 29th day of
September, 1997.
___________________________
Name:
Title:
Exhibit D
FORM OF OPINION OF SELLER'S COUNSEL
September 29, 1997
To Addressees Listed on Schedule I
Re: J.P. Morgan Commercial Mortgage Finance Corp.
Mortgage Pass-Through Certificates, Series 1997-C5
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Loan Sale Agreement,
dated as of September 1, 1997, between Morgan Guaranty Trust Company of New
York ("MGT"), as Seller, and J.P. Morgan Commercial Mortgage Finance Corp.
(the "Company"), as Purchaser, relating to the sale by MGT to the Company on
the date hereof of commercial and multifamily mortgage loans (the
"Agreement"). Terms defined in the Agreement and used but not defined herein
have the meanings given to them in the Agreement.
I am a Vice President and Assistant General Counsel of MGT and have
represented MGT in connection with the Agreement and the transactions
contemplated thereby. In connection with the delivery of this opinion, I
have examined (a) executed copies of the Agreement and the Pooling and
Servicing Agreement, dated as of September 1, 1997, among the Company, as
Depositor, Midland Loan Services, L.P., as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as
Fiscal Agent, and (b) copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments, and have conducted such investigation of
fact and law, as I have deemed necessary or appropriate for the opinions
expressed herein. In rendering the opinions expressed below, I have assumed
the due authorization, execution and delivery of the Agreement by each of the
parties thereto other than MGT and I have assumed and have not verified that
the signatures (other than signatures of officers of MGT) on all documents
that I have examined are genuine.
Based on the foregoing and subject to the assumptions and limitations
set forth herein, I am of the opinion that:
(1) MGT is a banking corporation, duly organized, validly existing and
in good standing under the laws of the State of New York.
(2) MGT has full corporate power and authority to execute and deliver
the Agreement and to perform its obligations thereunder and the Agreement has
been duly authorized, executed and delivered by MGT.
(3) The Agreement constitutes the legal, valid and binding obligation
of MGT, enforceable against MGT in accordance with its terms (except as
enforcement thereof may be limited by receivership, conservatorship,
reorganization, insolvency, moratorium or other laws affecting the
enforcement of creditors' rights generally and by general equitable
principles).
(4) No consents, authorizations or approvals are required for the
execution and delivery by MGT of the Agreement and the performance of its
obligations thereunder, and no other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for such
execution, delivery or performance.
(5) The execution, delivery and performance by MGT of the Agreement do
not and will not contravene any law or governmental regulation or order
presently binding on MGT or its articles of incorporation or bylaws or
contravene any provision of or constitute a default under any indenture,
contract or other instrument to which MGT is a party or by which MGT is
bound.
I am a member of the bar of the State of New York and the opinions expressed
herein are limited to the laws of the State of New York and the Federal laws
of the United States of America.
I am furnishing this letter to you in my capacity as Counsel for MGT and this
opinion may not be relied upon by or furnished to any other person without my
prior written consent.
Very truly yours,
Vice President and Assistant General Counsel
SCHEDULE I
J.P. Morgan Commercial Mortgage Finance Corp.
60 Wall Street
New York, New York 10260-0060
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
Fitch Investors Service, L.P.
One State Street Plaza
New York, New York 10004
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services
25 Broadway
New York, New York 10004
Exhibit E
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES OF SELLER
Reference is made to the Representations and Warranties contained in
Exhibit B corresponding to the roman numerals listed below:
(xxi):
-----
The following eleven (11) Mortgage Loans are secured in whole or in
part by a leasehold estate:
Loan No. 17 Palm Springs Hilton
Loan No. 21 Bay View Mobile Home Community
Loan No. 22 Rego Park Nursing Home
Loan No. 32 Sunset Lake Apartments
Loan No. 89 Sullivan's Lumber Yard
Loan No. 105 Midtown Promenade, Phase II
Loan No. 111 Airport Plaza
Loan NO. 121 Plaza Del Lago
Loan No. 122 Huntington Park Apartments
Loan No. 193 Plummer Street
Loan No. 266 Hearth and Home Building
(xxix):
------
All one-hundred six (106) Mortgages purchased from Prudential
Securities Credit Corp. require the Mortgagor to provide the holder
of the Mortgage Loan with annual operating statements.
EXHIBIT J
FORM OF ACKNOWLEDGMENT
The undersigned hereby acknowledges that U.S. securities laws may impose
certain restrictions on the use of the information provided to it pursuant to
the Pooling and Servicing Agreement dated as of September 1, 1997 by and
among J.P. Morgan Commercial Mortgage Finance Corp., as depositor, Midland
Loan Services, L.P., as master servicer and special servicer, LaSalle
National Bank, as trustee, and ABN AMRO Bank N.V., as fiscal agent.
____________________________
By:_________________________
Name:
Title:
EXHIBIT K
FORM OF REPORTS
ABN AMRO Statement Date:
LaSalle National Bank Payment Date:
Prior Payment:
Administrator: Record Date:
Brian Ames (800) 246-5761
135 S. LaSalle Street Suite 1740 WAC:
Chicago, IL 60603 WAMM:
J.P. MORGAN COMMERCIAL MORTGAGE FINANCE CORP.,
MIDLAND LOAN SERVICES, L.P., AS MASTER SERVICER AND SPECIAL SERVICER
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C5
ABN AMRO ACCT: 99-9999-99-9
Number Of Pages
---------------
Table of Contents 1
REMIC Certificate Report 1
Other Related Information 1
Asset Backed Facts Sheets 1
Delinquency Loan Detail 1
Mortgage Loan Characteristics 3
Loan Level Listing 1
TOTAL PAGES INCLUDED IN THIS PACKAGE 9
Specially Serviced Loan Detail Appendix A
Modified Loan Detail Appendix B
Realized Loss Detail Appendix C
<TABLE>
<CAPTION>
ORIGINAL PRINCIPAL
FACE OPENING PRINCIPAL ADJ. OR NEGATIVE CLOSING INTEREST INTEREST
VALUE (1) BALANCE PAYMENT LOSS AMORTIZATION BALANCE PAYMENT ADJUSTMENT PASS-THROUGH
CLASS Per Per Per Per Per Per Per Per RATE (2)
CUSIP $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 Next Rate(3)
- ---------- --------- ------- --------- --------- ------------ -------- -------- ---------- --------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Total P&I Payment 0.00
</TABLE>
Notes: (1) N denotes notional balance not included in total (2) Interest
Paid minus Interest Adjustment minus Deferred Interest equals
Accrual (3) Estimated
<TABLE>
<CAPTION>
CERTIFICATE EXCESS PREPAY UNPAID DEFERRED COLLATERAL VALUE NET PREPAYMENT GROSS PREPAYMENT
CLASS INTEREST SHORTFALL INTEREST INTEREST ADJUSTMENT PREMIUMS PREMIUMS
- ----------- ------------------ -------- -------- ---------------- -------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
A-1 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00 0.00 0.00
X 0.00 0.00 0.00 0.00 0.00 0.00
B 0.00 0.00 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00 0.00 0.00
F 0.00 0.00 0.00 0.00 0.00 0.00
G 0.00 0.00 0.00 0.00 0.00 0.00
H 0.00 0.00 0.00 0.00 0.00 0.00
NR 0.00 0.00 0.00 0.00 0.00 0.00
- ----------- ------------------ -------- -------- ---------------- -------------- ----------------
TOTALS: 0.00 0.00 0.00 0.00 0.00 0.00
- ----------- ------------------ -------- -------- ---------------- -------------- ----------------
</TABLE>
<TABLE>
<CAPTION>
Distribution Delinq 1 Delinq 2 Delinq 3+ Foreclosure/ REO Modifications Prepayments Curr Weighted
Date Months Months Months Bankruptcy Avg.
# Balance # Balance # Balance # Balance # Balance # Balance # Balance Coupon Remit
- -------- ----------- ----------- ---------- ------------ ----------- ------------- ----------- --------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
0 0 0 0 0 0 0 0 0 0 0 0 0 0
0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%
Note: Foreclosure and REO Totals are included in the Appropriate Delinquency Aging Category
</TABLE>
DELINQUENT LOAN DETAIL
<TABLE>
<CAPTION>
Disclosure Paid Current Outstanding Out. Property Special
Doc Thru P&I P&I Production Advance Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Description(1) Transfer Date Date Date Date
- --------------------- ---- ------- ----------- ------------- -------------- ------------- ----------- ---------- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A. P&I Advance - Loan in Grace 1. P&I Advance - Loan delinquent 3. P&I Advance - Loan delinquent
Period 1 month 3 months or More
B. P&I Advance - Late Payment but 2. P&I Advance - Loan delinquent 4. Matured Balloon/Assumed
< month delinq 2 months Scheduled Payment
</TABLE>
** Outstanding P&I Advances include the current period P&I Advance
POOL TOTAL
<TABLE>
DISTRIBUTION OF PRINCIPAL BALANCES
<CAPTION>
(2) Current Scheduled Number (2) Scheduled Based on
Balances of Loans Balance Balance
- -------------------------------------------- ----------- -------------- --------------
<S> <C> <C> <C> <C> <C>
$0 to $500,000
$500,000 to $1,000,000
$1,000,000 to $1,500,000
$1,500,000 to $2,000,000
$2,000,000 to $2,500,000
$2,500,000 to $3,000,000
$3,000,000 to $3,500,000
$3,500,000 to $4,000,000
$4,000,000 to $5,000,000
$5,000,000 to $6,000,000
$6,000,000 to $7,000,000
$7,000,000 to $8,000,000
$8,000,000 to $9,000,000
$9,000,000 to $10,000,000
$10,000,000 to $11,000,000
$11,000,000 to $12,000,000
$12,000,000 to $13,000,000
$13,000,000 to $14,000,000
$14,000,000 to $15,000,000
$15,000,000 & Above
- -------------------------------------------- ----------- -------------- --------------
Total 0 0 0.00%
Average Scheduled Balance is 0
Maximum Scheduled Balance is 0
Minimum Scheduled Balance is 0
</TABLE>
<TABLE>
DISTRIBUTION OF PROPERTY TYPES
<CAPTION>
Number (2) Scheduled Based on
Property Types of Loans Balance Balance
- ------------------------------------ ---------- --------------- --------------
<S> <C> <C> <C> <C>
Warehouse/Office
Office
Retail Facility
MF-Housing
Hospitality
- ------------------------------------ ---------- --------------- --------------
Total 0 0 0.00%
- ------------------------------------ ---------- --------------- --------------
</TABLE>
<TABLE>
GEOGRAPHIC DISTRIBUTION
<CAPTION>
Number (2) Scheduled Based on
Geographic Location of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C> <C>
California
Maryland
Virginia
Georgia
Florida
New Jersey
Arizona
Pennsylvania
Texas
Rhode Island
North Carolina
New York
Kentucky
Utah
Connecticut
- ----------------------------------- ----------- ---------------- --------------
Total 0 0 0.00%
- ----------------------------------- ----------- ---------------- --------------
</TABLE>
<TABLE>
DISTRIBUTION OF MORTGAGE INTEREST RATES
<CAPTION>
Current Mortgage Number (2) Scheduled Based on
Interest Rate of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C>
7.000% or less
7.000% to 7.125%
7.125% to 7.375%
7.375% to 7.625%
7.875% to 8.125%
8.125% to 8.375%
8.375% to 8.625%
8.625% to 8.875%
8.875% to 9.125%
9.125% to 9.375%
9.375% to 6.625%
9.625% to 9.875%
9.875% to 10.125%
10.125% & Above
- ----------------------------------- ----------- ---------------- --------------
Total 0 0 0.00%
- ----------------------------------- ----------- ---------------- --------------
</TABLE>
W/Avg Mortgage Interest Rate is 0.0000%
Minimum Mortgage Interest Rate is 0.0000%
Maximum Mortgage Interest Rate is 0.0000%
LOAN SEASONING
Number of Number (2) Scheduled Based on
Years of Loans Balance Balance
- ---------------- -------- ------------- --------
- ---------------- -------- ------------- --------
Weighted Average Seasoning is 0.0
<TABLE>
DISTRIBUTION OF REMAINING TERM FULLY AMORTIZING
<CAPTION>
Fully Amortizing Number (2) Scheduled Based on
Mortgage Loans of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C>
60 months or less
61 to 120 months
121 to 180 months
181 to 240 months
241 to 360 months
- ----------------------------------- ----------- ---------------- --------------
Total 0 0 0.00%
- ----------------------------------- ----------- ---------------- --------------
Weighted Average Months to Maturity is 0
</TABLE>
<TABLE>
DISTRIBUTION OF DSCR
<CAPTION>
Debt Service Number (2) Scheduled Based on
Coverage Ratio(1) of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C> <C>
0.500 or less
0.500 to 0.625
0.625 to 0.750
0.750 to 0.875
0.875 to 1.000
1.000 to 1.125
1.125 to 1.250
1.250 to 1.375
1.375 to 1.500
1.500 to 1.625
1.625 to 1.750
1.750 to 1.875
1.875 to 2.000
2.000 to 2.125
2.125 & above
Unknown
- ----------------------------------- ----------- ---------------- --------------
Total 0 0 0.00%
- ----------------------------------- ----------- ---------------- --------------
Weighted Average Debt Service Coverage Ratio is 0.000
</TABLE>
(1) Debt Service Coverage Ratios are calculated as described in the
prospectus, values are updated periodically as new NOI figures became
available from borrowers on an asset level. Neither the Trustee,
Servicer, Special Servicer or Underwriter makes any representation as to
the accuracy of the date provided by the borrower for this calculation.
<TABLE>
DISTRIBUTION OF AMORTIZATION TYPE
<CAPTION>
Number (2) Scheduled Based on
Amortization Type of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C> <C>
Fully Amortizing
Amortizing Balloon
Interest Only Balloon
- ----------------------------------- ----------- ---------------- --------------
Total 0 0 0.00%
- ----------------------------------- ----------- ---------------- --------------
</TABLE>
<TABLE>
DISTRIBUTION OF REMAINING TERM BALLOON LOANS
<CAPTION>
Balloon Number (2) Scheduled Based on
Mortgage Loans of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C> <C>
12 months or less
13 to 24 months
25 to 36 months
37 to 48 months
49 to 60 months
61 to 120 months
121 to 180 months
181 to 240 months
- ----------------------------------- ----------- ---------------- --------------
Total 0 0 0.00%
- ----------------------------------- ----------- ---------------- --------------
Weighted Average Months to Maturity is 0
</TABLE>
<TABLE>
NOI AGING
<CAPTION>
Number (2) Scheduled Based on
NOI Date of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C> <C>
1 year or less
1 to 2 years
2 Years or More
Unknown
- ----------------------------------- ----------- ---------------- --------------
Total 0 0 0.00%
- ----------------------------------- ----------- ---------------- --------------
</TABLE>
<TABLE>
DISTRIBUTION OF MAXIMUM RATES
<CAPTION>
Number (2) Scheduled Based on
Maximum Rates of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C>
No Maximum
0.01% to 12.00%
12.01% to 12.50%
12.51% to 13.00%
13.01% to 13.50%
13.51% to 14.00%
14.01% to 14.50%
14.51% to 15.00%
15.01% to 15.50%
15.51% to 16.00%
16.01% to 16.50%
16.51% to 17.00%
17.01% to 17.50%
Fixed Rate Mortgage
- ----------------------------------- ----------- ---------------- --------------
0 0 0.00%
Weighted Average for Mtge with a Maximum Rate is 0.00%
</TABLE>
<TABLE>
DISTRIBUTION OF INDICES OF MORTGAGE LOANS
<CAPTION>
Number (2) Scheduled Based on
Indices of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C> <C>
6 Mo. COFI
1 Mo. LIBOR
2 Yr. Treasury
1 Mo. COFI
6 Mo. Treasury
5 Yr. Treasury
6 Yr. Treasury
5 Yr. Prime
3 Yr. Treasury
1 Yr. Treasury
Fixed Rate Mortgage
- ----------------------------------- ----------- ---------------- --------------
Total 0 0 0.00%
</TABLE>
<TABLE>
DISTRIBUTION OF MINIMUM RATES
<CAPTION>
Number (2) Scheduled Based on
Minimum Rates(1) of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C>
No Minimum
0.010% to 3.000%
3.010% to 3.500%
3.510% to 4.000%
4.010% to 4.500%
4.510% to 5.000%
5.010% to 5.500%
5.510% to 6.000%
6.010% to 6.500%
6.510% to 7.000%
7.010% to 7.500%
7.510% to 8.000%
8.010% to 8.500%
8.510% to 99.000%
Fixed Rate Mortgage
- ----------------------------------- ----------- ---------------- --------------
0 0 0.00%
Weighted Average for Mtge with a Minimum Rate is 0.00%
</TABLE>
(1) For adjustable mortgage loans where a minimum rate does not exist the
gross margin was used.
<TABLE>
DISTRIBUTION OF PAYMENT ADJUSTMENT
<CAPTION>
Number (2) Scheduled Based on
Interest Adjustment Frequency of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C> <C>
One Month
Six Month
One Year
Two Year
Three Year
Five Year
Fixed Rate Mortgage
- ----------------------------------- ----------- ---------------- --------------
Total 0 0 0.00%
</TABLE>
<TABLE>
DISTRIBUTION OF MORTGAGE LOAN MARGINS
<CAPTION>
Number (2) Scheduled Based on
Mortgage Loan Margins of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C>
No Margin
0.000% to 0.000%
0.010% to 1.000%
1.010% to 1.500%
1.510% to 2.000%
2.010% to 2.500%
2.510% to 3.000%
3.010% to 3.500%
3.510% to 4.000%
4.010% to 4.500%
4.510% & Above
Fixed Rate Mortgage
- ----------------------------------- ----------- ---------------- --------------
Total 0 0 0.00%
Weighted Average for Mtge with a Margin is 0.00%
</TABLE>
<TABLE>
DISTRIBUTION OF INTEREST ADJUSTMENT
<CAPTION>
Payment Adjustment Number (2) Scheduled Based on
Frequency of Loans Balance Balance
- ----------------------------------- ----------- ---------------- --------------
<S> <C> <C> <C>
One Month
Six Month
Weekly
One Year
Two Year
Three Year
Five Year
Daily
Fixed Rate Mortgage
- ----------------------------------- ----------- ---------------- --------------
0 0 0.00%
</TABLE>
<TABLE>
LOAN LEVEL DETAIL
<CAPTION>
Disclosure Appraisal Property Maturity DSCR NOI Operating Ending Note Scheduled Prepayment Prepayment Loan
Control # Reduction Type Date Statement Principal Date Status
Amount Code Date Balance Rate P&I Code(1)
- ----------- --------- -------- -------- ---- --- --------- --------- ---- --------- ---------- ---------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
*NOI and DSCR, if available and reportable under the terms of the trust agreement, are based on
information obtained from the related borrower, and no other party to the agreement
shall be held liable for the accuracy or methodology used to determine such figures.
(1) Legend: A. P&I Adv - 1. P&I Adv - 3. P&I Adv - 5. Prepaid 7. Foreclosure 9. REO 11. Modification
Grace Period delinquent delinquent in Full
1 month 3+ months
B. P&I Adv - 2. P&I Adv - 4. Mat. Balloon/ 6. Specially 8. Bankruptcy 10. DPO
in one month delinquent Assumed P&I Serviced
delinq 2 months
</TABLE>
<TABLE>
Appendix A
SPECIALLY SERVICED LOAN DETAIL
<CAPTION>
Beginning Specially
Disclosure Scheduled Interest Maturity Property Serviced
Control # Balance Rate Date Type Status Code(1) Comments
- ---------- --------- -------- -------- -------- -------------- ------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
(1) Legend:
1) Request for waiver 4) Loan with Borrower Bankruptcy 7) Loans Paid Off
of Prepayment Penalty 5) Loan in Process of Foreclosure 8) Loans Returned to Master Servicer
2) Payment default 6) Loan now REO Property
3) Request for Loan
Modification or Workout
</TABLE>
<TABLE>
Appendix B
MODIFIED LOAN DETAIL
<CAPTION>
Disclosure Modification Modification
Control # Date Description
- ------------ ------------ ------------------------------------------------------------------
<S> <C> <C>
</TABLE>
<TABLE>
Appendix C
REALIZED LOSS DETAIL
<CAPTION>
Beginning Gross Proceeds Aggregate Net Net Proceeds
Dist. Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation Liquidation as a % of Realized
Date Control # Date Value Balance Proceeds Sched Principal Expenses* Proceeds Sched. Balance Loss
- ----- ---------- --------- --------- --------- -------- --------------- ----------- ----------- -------------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Current
Total 0.00 0.00 0.00 0.00 0.00
Cumulative 0.00 0.00 0.00 0.00 0.00
</TABLE>
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc.
EXHIBIT L
FORM OF SPECIAL SERVICER LETTER PURSUANT TO SECTION 4.01(E)
(Date)
(Mortgagor's Name)
(Mortgagor's Address)
Re: Transfer of Servicing of Loan in the Name of (Mortgagor's Name),
Loan (Mortgagor's Master Loan ID Number)
Dear (Mortgagor):
Please be advised that the servicing of the above referenced loan has
been returned to ("Master Servicer's Name").
Please continue to remit all payments to ("Master Servicer's Name").
("Master Servicer's Name") will continue to process your checks and maintain
the accounting records for this loan. Please remember to use the above
("Master Servicer's Name") Loan Number when communicating with us and making
your payments to ("Master Servicer's Name").
Should you have any questions, please call __________________ or write
at the following address:
(Special Servicer's Name)
(Special Servicer's Address)
Sincerely,
By:--------------------------------
Name:------------------------------
Title:-----------------------------
cc: ("Master Servicer's Name")
EXHIBIT M
FORM OF PROPERTY INSPECTION REPORT PURSUANT TO SECTION 4.09(A)
PROPERTY INSPECTION REPORT
Servicer: _____________________
Loan Number: _____________________
Name of Mortgaged Property: _____________________
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
______________________________________________________________________________________________________
MF = _____ RT = Retail _____ IN = _____ MH = Mobile Home _____
Multi-Family Industrial Park
OF = Office _____ HO = Hotel _____ MU = Use _____ CH = Congregate _____
Housing
SS = Self _____ NH = Nursing OT = Other _____ ________________________
Storage Home Facility _____ Description
______________________________________________________________________________________________________
Property Manager: __________________ Property
Address: ________________________________
Property Manager Phone: ____________ ________________________________
Contacted ____ Yes ____ No ________________________________
Resident Property Manager ____ Yes ____ No
Accessibility/
Site Area (SF): ____________________ Visibility: ___ Excellent ____ Good ____ Fair ___ Poor
Number of Number Year
Stories: __________ of Buildings: _______ Built: _____
Gross Square Net Leasable Number of Renovated: Date* _______________
Footage: __________ Area: _____________ Units/ Yes _____
Rooms/Beds/Pads: _______ No ______
Unknown _____
Occupancy Per Most Recent Rent Roll: ______ Date of Most Recent Roll: _____ Occupancy of Inspection Date: ______
Corner Nearest
Zoning (Code & Descrip): Location: ________ Yes _________ No Intersection: ________
Area Competition: ________________________________________________________________________
__________________________________________________________________________________________
Demographic Information
Surrounding Economy: ____ Prospectus ____ Stable ____ Depressed
Neighborhood: ____ Residential ____ Multi-Family ____ Commercial
Accessibility: ____ Good ____ Fair ____ Poor
Rate of Growth: ____ High ____ Moderate ____ Low
Comments: _________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
OVERALL INSPECTION EVALUATION
______ Excellent ______ Good ______ Fair _____ Poor
INSPECTED BY: INSPECTION DATE:
______________________________________ _______________________________
Servicer: _____________________
Loan Number: _____________________
Name of Mortgaged Property: _____________________
Note: Comment as appropriate, however all poor ratings should be explained in the Comments section,
with supporting date attached as applicable. (e.g., photographs, maps, comparable market data, etc.)
PARKING LOT/DRIVES/FIRE LANES: ____ Excellent ____ Good _____ Fair ______ Poor ______ N/A
Comments: _________________________________________________________________________________
LANDSCAPING: ____ Excellent ____ Good _____ Fair ______ Poor______ N/A
Comments: _________________________________________________________________________________
SIGNAGE ____ Excellent ____ Good _____ Fair ______ Poor______ N/A
Comments: _________________________________________________________________________________
CORRIDORS, LANDINGS, STAIRWELLS &
WALKWAYS: ____ Excellent ____ Good _____ Fair ______ Poor______ N/A
Comments: _________________________________________________________________________________
LEASING OFFICE: ____ Excellent ____ Good _____ Fair ______ Poor______ N/A
Comments: _________________________________________________________________________________
AMENITIES: ____ Excellent ____ Good _____ Fair ______ Poor______ N/A
Comments: _________________________________________________________________________________
VACANT LEASE AREAS: (Discuss built out space/slab space and if possible estimate cost of refit or
build out.)
Comments: _________________________________________________________________________________
"ADA" COMPLIANCE:
Comments: _________________________________________________________________________________
FIRE CODE - LIFE SAFETY:
Comments: _________________________________________________________________________________
ENVIRONMENTAL ISSUES:
N = None Observed
X = Potential Problems/Issues Observed (Describe Below)
A = Professional Inspection/Assistance Recommended
Hazardous Waste ______ Pipelines _______ Other Containers ________
Asbestos Containing Storage Drums _______ Manhole Covers ________
Materials ______
Surface Staining ______ Underground Storage Leaking Transformers ________
Tanks ______
Soil Staining ______ Above Ground Storage Septic Tanks ________
Tasks ______
Other ________
Comments: _________________________________________________________________________________
Servicer: _____________________
Loan Number: _____________________
Name of Mortgaged Property: _____________________
Note: Comment as appropriate, however all poor ratings should be explained in the Comments section,
with supporting date attached as applicable. (e.g., photographs, maps, comparable market data, etc.)
BUILDINGS/STRUCTURAL: (Describe type, condition, and other observations as applicable
--------------------
FOUNDATION: ____ Excellent ____ Good _____ Fair ______ Poor______ N/A
Comments: _________________________________________________________________________________
EXTERIOR WALLS: ____ Excellent ____ Good _____ Fair ______ Poor______ N/A
Comments: _________________________________________________________________________________
ROOF: ____ Excellent ____ Good _____ Fair ______ Poor______ N/A
Comments: _________________________________________________________________________________
HVAC SYSTEMS: ____ Excellent ____ Good _____ Fair ______ Poor______ N/A
Comments: _________________________________________________________________________________
MECHANICAL: ____ Excellent ____ Good _____ Fair ______ Poor______ N/A
Comments: _________________________________________________________________________________
UNRESTORED CASUALTY DAMAGE: ____ Yes ____ No ____ Unknown ______ N/A
Comments: _________________________________________________________________________________
INCOMPLETE CONSTRUCTION: ____ Yes ____ No ____ Unknown ______ N/A
Comments: _________________________________________________________________________________
GENERAL/OVERALL COMMENTS:
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
</TABLE>
Servicer: _____________________
Loan Number: _____________________
Name of Mortgaged Property: _____________________
ATTACH SUBJECT PHOTO(S) HERE
Property Inspection Report
Revised June 21, 1996
EXHIBIT N
FORM OF SUMMARY OF OPERATING STATEMENTS AND RENT ROLLS PURSUANT TO SECTION
4.09(B)
OPERATING STATEMENT ANALYSIS
PROPERTY SUMMARY
Servicer
Loan Number
Mortgagor
Name of Mortgaged Property
Street
City, State, Zip
# of Units/Rooms/Beds/Pads // Sq. Ft.(Gross; Net)
Number of Months
Period From - To:
INCOME Current Period 12 Month Trailing
Total Income
Income Per Unit/Room/Bed/Pad // Sq. Ft. (Net)
OPERATING EXPENSES
Management Fee
Administration
Utilities
Maintenance & Repair
Insurance
Real Estate Taxes
Ground Rent
Other Expenses
Total Operating Expenses
Expenses Per Unit/Room/Bed/Pad // Sq. Ft. (Net)
CAPITAL EXPENSES
Replacement Reserves
Total Capital Expenses
NET OPERATING INCOME
Debt Service
Debt Service Coverage Ratio (NOI/Debt Service)
Operating Statement Analysis
Revised June 21, 1996
Servicer Name: (Mortgagor's Name)
Rent Roll Analysis
<TABLE>
<CAPTION>
<S> <C> <C>
Mortgagor and Primary Name of Mortgaged Property Net Rentable Sq. Ft.
ID Number and Property address
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
Suite Tenant Contact Person Annual Base Rental Gross Sq. Ft. of Escalation Clauses Current Lease
Number and Phone Number Rate (excluding any Lease Space (CPI fixed) Market Rent Commencement
amortization of of the Space Date
tenant finish)
<table continued>
<S> <C> <C> <C> <C> <C> <C>
Primary Term Expense Payment Percentage Rent Stated Options or Concessions Percentage Security
Expiration Date Provision (Pass Through Payable Fixed Renewals (Build-out, free Rent/Breakpoint Deposit
or Stop) Rent, etc.)
</TABLE>
Exhibit O
Form of Remittance Report Pursuant to Section 4.10 (A)
Submitted by Midland Loan Services, L.P., as Master Servicer Prepared On:
J.P. MORGAN COMMERCIAL MORTGAGE FINANCE CORP., SERIES 1997-C5
FOR THE COLLECTION PERIOD ENDING: Balances As Of:
POOL #:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PRIMARY LOAN RELATED MORTGAGOR BEGINNING CURRENT ENDING CURRENT PAID-TO LIQUIDATION
ID NUMBER OWNER LOAN SCHEDULED INTEREST SCHEDULED PRINCIPAL DATE EVENT CODE
ID NUMBER PRINCIPAL RATE PRINCIPAL BALANCE
BALANCE BALANCE
<table continued>
<S> <C> <C> <C> <C> <C> <C>
PREPAYMENT PRINCIPAL SCHEDULED SCHEDULED INTEREST INTEREST NEGATIVE
EFFECTIVE DATE PREPAYMENT PRINCIPAL INTEREST PAYMENT ADJUSTMENT ADJUSTMENT AMORTIZATION
AMOUNT PAYMENT AMOUNT AMOUNT EFFECTIVE DATE AMOUNT
<table continued>
<S> <C> <C> <C> <C> <C>
MASTER PRIMARY SPECIAL PREPAYMENT PRINCIPAL PRINCIPAL
SERVICER SERVICER SERVICER INTEREST BALANCE ADJUSTMENT
FEE FEE FEE SHORTFALL/ ADJUSTMENT EFFECTIVE DATE
EXCESS
</TABLE>
REMITTANCE RECAP--NET PRINCIPAL AND INTEREST REMITTANCE:
________________________________________________________
<TABLE>
<CAPTION>
<S> <C> <C> <C>
PRIMARY PRINCIPAL INTEREST NET
LOAN ID REMITTANCE REMITTANCE REMITTANCE
NUMBER AMOUNT AMOUNT
</TABLE>
PREPAYMENT:
- -----------
NOTICE HAS BEEN RECEIVED WITH RESPECT TO ANY INTENT BY A BORROWER TO PREPAY
WITHIN 30 DAYS:
___ YES ___ NO PRIMARY LOAN ID NUMBER _____________
OUTSTANDING PRINCIPAL BALANCE _______________
NOTE: The data fields represented on this exhibit are an example of a
hypothical Remittance Report format.
The data fields rendered in an actual Remittance Report will normally
include only those fields that had activity in them for the
collection period reported.
EXHIBIT P
FORM OF DETAILED LOAN INDICATIVE DATA FILE
PURSUANT TO SECTION 4.10(A)
COMMERCIAL REAL ESTATE
SECONDARY MARKET
AND
SECURITIZATION ASSOCIATION
(CSSA 100.1 Setup Data Record Layout)
Loan Level Only - Reflects Offering Documentation
<TABLE>
<CAPTION>
Specification Description/Comments
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-
Per-Inch); Blocking Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
</TABLE>
<TABLE>
<CAPTION>
Field Format
Field Name Number Type Example Description/Comments
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification
Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number
Assigned To Each Loan Group
Within An Issue
Loan Id 3 AN 0000000001234 Unique Identification Number
5 Assigned To Each Collateral
Item in A Pool
Offering Document Loan Id 4 AN 123 Unique Identification Number
Assigned To Each Collateral
Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At
Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months
Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number of Months
Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception
Of
The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment
Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The
Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number of Days From Due Date
Borrower Is Permitted To
Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step,
9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365,
3=Actual/360,
4=Actual/Actual,
5=Actual/366, 6=Simple,
7=78'S
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be
Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be
Prepaid Without Yield
Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be
Prepaid Without Penalty
Prepayment Terms Description 21 AN Text Description Of Prepayment
Terms (Not To Exceed 50
Characters)
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally
Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally
Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In
The Determination Of The
Gross Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The
Borrower Must Pay On An Arm
Loan Per The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The
Borrower Must Pay On An Arm
Loan Per The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To
The Note Rate Allowed Per
The Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Increase To
The Note Rate Allowed Per
The Loan Agreement
Periodic Payment Adjustment Max-% 30 Numeric 0.03 Maximum Periodic Percentage
Increase to The Borrowers
P&I Payment Allowed Per The
Loan Agreement
Periodic Payment Adjustment Max-$ 31 Numeric 5000.00 Maximum Periodic Dollar
Increase To The Borrower P&I
Payment Allowed Per The Loan
Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly,
6=Semi-Annually, 12=Annually
...
Rate Reset Frequency In Months 33 Numeric 1 1=Monthly, 3=Quarterly,
6=Semi-Annually, 12=Annually
...
Payment Reset Frequency In Months 34 Numeric 1 1=Monthly, 3=Quarterly,
6=Semi-Annually, 12=Annually
...
Rounding Code 35 Numeric 1 Rounding Method For Sum Of
Index Plus Margin (See
Rounding Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With
Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days
Prior to Adjustment Date
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
Max Negate Allowed (% of Orig Balance) 39 Numeric 0.075 Maximum Lifetime Percentage
Increase To The Original
Balance Allowed Per The Loan
Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Maximum Lifetime Dollar
Increase To The Original
Balance Allowed Per The Loan
Agreement
Remaining Term At Securitization 41 Numeric 240 Remaining Number Of months
Until Maturity Of Loan At
Cutoff
Remaining Amortized Term At Securitization 42 Numeric 360 Remaining Number of Months
Loan Amortized Over At
Cutoff
Maturity Date At Securitization 43 AN YYYYMMDD The Scheduled Maturity Date
Of The Mortgage Loan At
Securitization
Scheduled Principal Balance At 44 Numeric 1000000.00 The Scheduled Principal
Securitization Balance Of The Mortgage Loan
At Securitization
Note Rate At Securitization 45 Numeric 0.095 Cutoff Annualized Gross
Interest Rate Applicable To
The Calculation Of Schedule
Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid
To The Servicer And Trustee
Fee Rate/Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip
Netted Against Current Note
Rate To Determine Net Pass-
Through Rate
Fee Rate/Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip
Netted Against Current Note
Rate To Determine Net Pass-
Through Rate
Fee Rate/Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip
Netted Against Current Note
Rate To Determine Net Pass-
Through Rate
Fee Rate/Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip
Netted Against Current Note
Rate To Determine Net Pass-
Through Rate
Fee Rate/Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip
Netted Against Current Note
Rate To Determine Net Pass-
Through Rate
Net Rate At Securitization 52 Numeric 0.0947 Cutoff Annualized Interest
Rate Applicable To The
Calculation Of Remittance
Interest
Periodic P&I Payment At Securitization 53 Numeric 3000.00 The Periodic Scheduled
Principal & Interest Payment
# of Properties 54 Numeric 13 The Number Of Properties
Underlying The Mortgage Loan
Property Name 55 AN Text If Number Of Properties Is
Greater Than 1 Then
"Various"
Property Address 56 AN Text If Number Of Properties Is
Greater Than 1 Then
"Various"
Property City 57 AN Text If Number Of Properties Is
Greater Than 1 Then
"Various"
Property State 58 AN Text If Number Of Properties Is
Greater Than 1 Then
"Various"
Property Zip Code 59 AN Text If Number Of Properties Is
Greater Than 1 Then
"Various"
Property County 60 AN Text If Number Of Properties Is
Greater Than 1 Then
"Various"
Property Type Code 61 AN MF If Number Of Properties Is
Greater Than 1 Then
"Various" (See Property Type
Code Legend)
Net Square Feet At Securitization 62 Numeric 25000 If Number Of Properties Is
Greater Than 1 Then
"Various"
# of Units/Beds/Rooms At Securitization 63 Numeric 75 If Number Of Properties Is
Greater Than 1 Then
"Various"
Year Built 64 AN 1990 If Number Of Properties Is
Greater Than 1 Then
"Various"
NOI At Securitization 65 Numeric 100000.00 Net Operating Income At
Securitization
DSCR At Securitization 66 Numeric 2.11 DSCR At Securitization
Appraisal Value At Securitization 67 Numeric 1000000.00 Appraisal Value At
Securitization
Appraisal Date At Securitization 68 AN YYYYMMDD Appraisal Date At
Securitization
Physical Occupancy At Securitization 69 Numeric 0.88 Physical Occupancy At
Securitization
Revenue At Securitization 70 Numeric 100000.00 Revenue At Securitization
Operating Expenses At Securitization 71 Numeric 100000.00 Expenses At Securitization
Securitization Financials As Of Date 72 AN YYYYMMDD Securitization Financials As
Of Date
Recourse (Y/N) 73 AN Y Y=Yes, No=No
Ground Lease (Y/N) 74 AN Y Y=Yes, No=No
Cross-Collateralized Loan Grouping 75 Numeric 9(3) All Loans With The Same
Numeric Value Are Crossed
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, No=No
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, No=No
Lien Position At Securitization 78 Numeric 1 1=First, 2=Second...
</TABLE>
<TABLE>
<CAPTION>
Payment Type Code Legend
<S> <C>
1 Fully Amortizing
2 Amortizing Balloon
3 Interest Only/Balloon
4 Interest Only/Amortizing
5 Interest Only/Amortizing/Balloon
6 Principal Only
9 Other
</TABLE>
<TABLE>
<CAPTION>
ARM Index Code Legend
<S> <C>
A 11 FHLB COFI (1 Month)
B 11 FHLB COFI (6 Month)
C 1 Year CMT Weekly Average Treasury
D 3 Year CMT Weekly Average Treasury
E 5 Year CMT Weekly Average Treasury
F Wall Street Journal Prime Rate
G 1 Month LIBOR
H 3 Month LIBOR
I 6 Month LIBOR
J National Mortgage Index Rate
All Others Use Short Text Description
</TABLE>
<TABLE>
<CAPTION>
Rounding Code Legend
<S> <C>
1 Unrounded
2 Nearest Percentage Increment
3 Up To Nearest Percentage Increment
4 Down To Nearest Percentage Increment
</TABLE>
<TABLE>
<CAPTION>
Property Types Code Legend
<S> <C>
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
</TABLE>
<PAGE>
Commercial Real Estate
Secondary Market
And
Securitization Association
(CSSA 100.1 Periodic Data Record Layout)
Loan Level Only - Reflects Distribution Statements
<TABLE>
<CAPTION>
Specification Description/Comments
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic-Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1500 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data);
(Bytes-Per-Inch); Blocking Factor; Record Length
Return Address Label Required for return of physical media
(magnetic tape or diskette)
</TABLE>
<TABLE>
<CAPTION>
Field
Field Name Number Type Format Example Description/Comments
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX97C1A Unique Identification Number Assigned
To Each Loan Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Identification Number Assigned
To Each Collateral Item In A Pool
Prospectus Id 4 AN 123 Unique Identification Number Assigned
To Each Collateral Item In The
Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To
Certificateholders
Current Beginning 6 Numeric 100000.00 Outstanding Scheduled Principal
Scheduled Balance Balance At The Beginning Of The
Current Period
Current Ending 7 Numeric 100000.00 Outstanding Scheduled Principal
Scheduled Balance Balance At The End Of The Current
Period
Paid To Date 8 AN YYYYMMDD Due Date Of The Last Interest Payment
Received
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination
Of The Current Period Gross Interest
Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To
The Calculation Of The Current Period
Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make
Its Final Payment
Servicer and Trustee 12 Numeric 0.00025 Annualized Fee Paid To The Servicer
Fee Rate And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net
Pass-Through Rate
Net Pass-Through Rate 18 Numeric 0.0897 Annualized Interest Rate Applicable To
The Calculation Of The Current Period
Remittance Interest
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination
Of The Next Period Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate
Applicable To The Calculation Of The
Next Period Scheduled Interest
Next Rate Adjustment 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To
Date Change
Next Payment Adjustment 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next
Date Scheduled To Change
Scheduled Interest 23 Numeric 1000.00 Scheduled Gross Interest Payment Due
Amount For The Current Period
Scheduled Principal 24 Numeric 1000.00 Scheduled Principal Payment Due For
Amount The Current Period
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal And Interest
Payment Due For The Current Period
Neg am/Deferred 26 Numeric 1000.00 Negative Amortization/Deferred
Interest Amount Interest Amount Due For The Current
Period
Unscheduled Principal 27 Numeric 1000.00 Unscheduled Payments of Principal
Collections Received During The Related Collection
Period
Other Principal 28 Numeric 1000.00 Unscheduled Principal Adjustments For
Adjustments The Related Collection Period
Liquidation/Prepayment 29 AN YYYYMMDD Date Unscheduled Payment Of Principal
Date Received
Prepayment 30 Numeric 1000.00 Additional Payment Required From
Penalty/Yield Maint. Borrower Due To Prepayment Of Loan
Received Prior To Maturity
Prepayment Interest 31 Numeric 1000.00 Scheduled Gross Interest Applicable To
Excess (Shortfall) The Prepayment Amount
Liquidation/Prepayment 32 Numeric 1 See Liquidation/Prepayment Codes
Code Legend
Most Recent ASER $ 33 Numeric 1000.00 Excess Of The Principal Balance Over
The Defined Appraisal Percentage
Most Recent ASER Date 34 AN YYYYMMDD Date ASER Amount Applied To Loan
Cumulative ASER $ 35 Numeric 1000.00 Cumulative ASER Amount
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance
At The End Of The Current Period
Total P&I Advance 37 Numeric 1000.00 Outstanding P&I Advances At The End Of
Outstanding The Current Period
Total T&I Advance 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances
Outstanding At The End Of The Current Period
Other Expense Advance 39 Numeric 1000.00 Other Outstanding Advances At The End
Outstanding Of The Current Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In
Bankruptcy "Y". Else "N")
Foreclosure Date 42 AN YYYYMMDD Date Of Foreclosure
REO Date 43 AN YYYYMMDD Date of REO
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received 45 Numeric 100000.00 Net Proceeds Received On Liquidation
on Liquidation To Be Remitted To The Trust Per The
Trust Documentation.
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The
Liquidation To Be Netted From The
Trust Re: The Trust Documentation
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net
Liquidation Proceeds Received
Date of Last 48 AN YYYYMMDD Date Loan Was Modified
Modification
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year 52 Numeric 1000.00 Preceding Fiscal Year Revenue
Revenue
Preceding Fiscal Year 53 Numeric 1000.00 Preceding Fiscal Year Expenses
Expenses
Preceding Fiscal Year 54 Numeric 1000.00 Preceding Fiscal Year Net Operating
NOI Income
Preceding Fiscal Year 55 Numeric 1000.00 Preceding Fiscal Year Debt Service
Debt Service Amt. Amount
Preceding Fiscal Year 56 Numeric 2.55 Preceding Fiscal Year Debt Service
DSCR Coverage Ratio
Preceding Fiscal Year 57 Numeric 0.85 Preceding Fiscal Year Physical
Physical Occupancy Occupancy
Preceding FY Financial 58 AN YYYYMMDD Preceding Fiscal Year Financial As Of
As of Date Date
Second Preceding FY 59 Numeric 1000.00 Second Preceding Fiscal Year Revenue
Revenue
Second Preceding FY 60 Numeric 1000.00 Second Preceding Fiscal Year
Expenses Expenses
Second Preceding FY NOI 61 Numeric 1000.00 Second Preceding Fiscal Year Net
Operating Income
Second Preceding FY 62 Numeric 1000.00 Second Preceding Fiscal Year Debt
Debt Service Service
Second Preceding FY 63 Numeric 2.55 Second Preceding Fiscal Year Debt
DSCR Service Coverage Ratio
See Preceding FY 64 Numeric 0.85 Second Preceding Fiscal Year Physical
Physical Occupancy Occupancy
See Preceding FY 65 AN YYYYMMDD Second Preceding Fiscal Year Financial
Financial As of Date As Of Date
Most Recent Fiscal YTD 66 Numeric 1000.00 Most Recent Fiscal Year To Date
Revenue Revenue
Most Recent Fiscal YTD 67 Numeric 1000.00 Most Recent Fiscal Year To Date
Expenses Expenses
Most Recent Fiscal YTD 68 Numeric 1000.00 Most Recent Fiscal Year To Date Net
NOI Operating Income
Most Recent Fiscal YTD 69 Numeric 1000.00 Most Recent Fiscal Year To Date Debt
Debt Service Service
Most Recent Fiscal YTD 70 Numeric 2.55 Most Recent Fiscal Year To Date Debt
DSCR Service Coverage Ratio
Most Recent Fiscal YTD 71 Numeric 0.85 Most Recent Fiscal Year To Date
Phys. Occ. Physical Occupancy
Most Recent Fiscal YTD 72 AN YYYYMMDD Most Recent Fiscal Year To Date Start
Start Date Date
Most Recent Fiscal YTD 73 AN YYYYMMDD Most Recent Fiscal Year To Date End
End Date Date
Most Recent Appraisal 74 AN YYYYMMDD The Date Of The Latest Available
Date Appraisal For The Property
Most Recent Appraisal 75 Numeric 100000.00 The Latest Available Appraisal Value
Value For The Property
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Spec 77 AN YYYYMMDD Date Transferred To The Special
Service Transfer Date Servicer
Most Recent Master 78 AN YYYYMMDD Date Returned To The Master Servicer
Service Return Date
Date Asset is Expected 79 AN YYYYMMDD Date Asset Is Expected To Be Resolved
to Be Resolved
Year Last Renovated 80 AN 1997 Year Property Last Renovated
</TABLE>
All Financial Update Fields Are Calculated and/or Presented in The Manner
Described In The Associated Trust Documentation.
Most Recent Fiscal YTD Figures Are From The Last Financials Processed By
The Servicer Pursuant To The Terms Of The Trust Document, And Cover The
Period From The Start Date To The End Date.
Liquidation/Prepayment Code
Legend
1 Partial Liquidation (Curtailment)
2 Payoff Prior to Maturity
3 Disposition
4 Repurchase
5 Full Payoff At Maturity
6 DPO
7 Liquidation
Status of Mortgage Loan
Legend
A Payment Not Received But Still In Grace Period
B Late Payment But Less Than 1 Month Delinquent
0 Current
1 One Month Delinquent
2 Two Months Delinquent
3 Three or More Months Delinquent
4 Assumed Scheduled Payment (Performing Matured Balloon)
7 Foreclosure
9 REO
Modification Code
Legend
1 Maturity Date Extension
2 Amortization Change
3 Principal Write-Off
4 Combination
Workout Strategy Code
Legend
1 Modification
2 Foreclosure
3 Bankruptcy
4 Extension
5 Note Sale
6 DPO
7 REO
8 Resolved
9 Pending Return to Master Servicer
10 Deed in Lieu of Foreclosure
EXHIBIT Q
(RESERVED)
EXHIBIT R
(RESERVED)
EXHIBIT S
FORM OF NOTICE REGARDING TRANSFER TO SPECIAL SERVICING
PURSUANT TO SECTION 6.02(A)
(Date)
(Trustee Name and Address)
(Depositor Name and Address)
(Master Servicer's Name and Address)
(Special Servicer's Name and Address)
Re: Transfer of Servicing of Loan in the Name of (Mortgagor's Name),
Loan (Mortgagor's Primary Loan ID Number)
Dear Sir/Madam:
Please be advised that the servicing of the above-referenced loan will
be transferred to ("Special Servicer's Name") for special servicing as of the
date of this letter. This loan is being transferred to ("Special Servicer's
Name") for servicing for the following noted reason:
1. The loan has become a Defaulted Mortgage Loan;
2. The Mortgagor has entered into or consented to bankruptcy,
appointment of a receiver or conservator or a similar insolvency or
a similar proceeding, or the Mortgagor has become a subject of a
decree or order for such a proceeding which shall have remained in
force on discharged or unstayed for a period of 6 days;
3. Either ("Special Servicer's Name") or ("Master Servicer's Name")
has received notice of the foreclosure or proposed foreclosure of
any other lien on the Mortgaged Property;
4. In the judgement of ("Special Servicer's Name") or ("Master
Servicer's Name"), a payment default has occurred or is imminent
and is not likely to be cured by the related Mortgagor within
sixty (60) days;
5. The related Mortgagor has admitted in writing its inability to pay
its debts generally as they become due, has filed a petition to
take advantage of any applicable insolvency or reorganization
statue, made an assignment for the benefit of its creditors, or
voluntarily suspended payment of its obligations;
6. With respect to a Balloon Mortgage Loan, the related Mortgagor, in
response to a letter from ("Master Servicer's Name") pursuant to
Section 4.11 of the Servicing Agreement, has requested either an
extension of the related Maturity Date of any other modification or
has otherwise indicated the inability to make the payment due on
such Maturity Date, or has failed to respond within thirty (30)
days after the 3-months' notice letter referenced in Section 4.11
of the Servicing Agreement;
7. Any other material default has, in ("Special Servicer's Name")'s
judgement or ("Master Servicer's Name")'s judgement, occurred
which is not reasonably susceptible of cure within the time periods
and on the terms and conditions, if any, provided in the related
Mortgage;
8. The related Mortgaged Property has become REO Property; or
9. If for any reason, ("Master Servicer's Name") cannot enter into an
assumption agreement pursuant to Section 4.08 of the Servicing
Agreement.
All capitalized terms used herein shall have the same meaning as defined
in, and all references to the "Servicing Agreement" shall refer to, the
Pooling and Servicing Agreement, dated as of September 1, 1997, among J.P.
Morgan Commercial Mortgage Finance Corp., Midland Loan Services L.P, LaSalle
National Bank and ABN AMRO Bank N.V.
Sincerely,
By:--------------------------------
Name:------------------------------
Title:-----------------------------
EXHIBIT T
FORM OF SPECIAL SERVICER LETTER PURSUANT TO SECTION 6.02(B)
(Date)
(Mortgagor's Name)
(Mortgagor's Address)
Re: Transfer of Servicing of Loan in the Name of (Mortgagor's Name),
Loan (Mortgagor's Primary Loan ID Number)
Dear (Mortgagor):
("Master Servicer's Name") is responsible for receiving all payments on
your loan and for normal servicing of your loan. ("Special Servicer's
Name") (the "Special Servicer") is the Special Servicer who is responsible
for servicing any loan that requires special attention such as one which
is delinquent, has matured or when a default appears imminent.
This letter is to inform you that we have determined that your loan
meets one or more of the conditions for transfer to the Special Servicer.
Please continue to remit all payments to ("Master Servicer's Name")
while your loan is being serviced by the Special Servicer. ("Master
Servicer's Name") will continue to process your checks and maintain the
accounting records for this loan. The acceptance of any payments by
("Master Servicer's Name") does not constitute any agreement to modify or
amend your loan in any way.
A Special Servicer employee will contact you shortly to discuss what
options are available to you at this time. Should you have any questions
regarding your loans, please contact the Special Servicer's toll-free
Customer Service number (("Customer Service Number")), or write to the
Special Servicer at the following address. Please remember to use the
above ("Master Servicer's Name") loan number when communicating with the
Special Servicer and making your payments to ("Master Servicer's Name")
while the Special Servicer is servicing your loan:
("Special Servicer's Name")
("Special Servicer's Address")
Attention: Special Servicing
No statement, act, omission or course of dealing or conduct on the part
of ("Master Servicer's Name") or the Special Servicer, or both, shall be
construed to alter or waive any default or any obligation under applicable
law and/or the documents pertaining to your loan; no agreement or waiver
shall be binding on ("Master Servicer's Name") or the Special Servicer
unless reduced to writing and signed by an employee duly authorized to do so;
and neither delay in nor failure of ("Master Servicer's Name") or the
Special Servicer to exercise any right, power or privilege under any loan
document shall operate as a waiver thereof, and no single or partial exercise
of any right, power or any privilege shall preclude any other and further
exercise thereof or the exercise of any right, power or privilege.
Sincerely,
By:__________________________________
Name:________________________________
Title:_______________________________
ATTENTION TO ANY DEBTOR IN BANKRUPTCY OR WHO HAS RECEIVED A DISCHARGE IN
BANKRUPTCY OR WHO MAY HAVE PAID, SETTLED OR IS OTHERWISE NOT OBLIGATED:
Please be advised that this letter constitutes neither a demand for payment
of the captioned debt nor a notice of personal liability to any recipient
hereof who: might have received a discharge of such debt in accordance with
applicable bankruptcy laws or who might be subject to the automatic stay of
Section 362 of the United States Bankruptcy Code, has paid, settled, or is
otherwise not obligated by law.
cc: ("Master Servicer")
EXHIBIT U
FORM OF SPECIAL SERVICER LETTER PURSUANT TO SECTION 6.02(E)
(Date)
(Mortgagor's Name)
(Mortgagor's Address)
Re: Transfer of Servicing of Loan in the Name of (Mortgagor's Name),
Loan (Mortgagor's Primary Loan ID Number)
Dear (Mortgagor):
Your loan has been transferred to ("Special Servicer Name") (the "Special
Servicer") for Special Servicing. After we review your records, we will be
contacting you soon.
Please continue to remit all payments to ("Master Servicer's Name")
while your loan is being serviced by the Special Servicer. ("Master
Servicer's Name") will continue to process your checks and maintain the
accounting records for this loan. The acceptance of any payments by
("Master Servicer's Name") does not constitute any agreement to modify or
amend your loan in any way.
A Special Servicer employee will contact you shortly to discuss what
options are available to you at this time. Should you have any questions
regarding your loans, please contact the Special Servicer's toll-free
Customer Service number (("Customer Service Number")), or write to the
Special Servicer at the following address. Please remember to use the
above ("Master Servicer's Name") loan number when communicating with the
Special Servicer and making your payments to ("Master Servicer's Name")
while the Special Servicer is servicing you loan:
("Special Servicer's Name")
("Special Servicer's Address")
Attention: Special Servicing
The Special Servicer may be engaging third party firms to perform
property inspections as well as certain other analyses and studies on
property which serves as collateral for your loan. You may be contacted by
such third party firms to provide access to your property and other
information. We will appreciate your cooperation during this process and
look forward to completing these activities in the near future.
No statement, act, omission or course of dealing or conduct on the part
of the ("Master Servicer's Name") or the Special Servicer, or both, shall be
construed to alter or waive any default or any obligation under applicable
law and/or the documents pertaining to your loan; no agreement or waiver
shall be binding on ("Master Servicer's Name") or the Special Servicer
unless reduced to writing and signed by an employee duly authorized to do so;
and neither delay in nor failure of (Master Servicer's Name) or the
Special Servicer to exercise any right, power or privilege under any loan
document shall operate as a waiver thereof, and no single or partial exercise
of any right, power or any privilege shall preclude any other and further
exercise thereof or the exercise of any right, power or privilege.
Sincerely,
By:__________________________________
Name:________________________________
Title:_______________________________
ATTENTION TO ANY DEBTOR IN BANKRUPTCY OR WHO HAS RECEIVED A DISCHARGE IN
BANKRUPTCY OR WHO MAY HAVE PAID, SETTLED OR IS OTHERWISE NOT OBLIGATED:
Please be advised that this letter constitutes neither a demand for payment
of the captioned debt nor a notice of personal liability to any recipient
hereof who: might have received a discharge of such debt in accordance with
applicable bankruptcy laws or who might be subject to the automatic stay of
Section 362 of the United States Bankruptcy Code, has paid, settled, or is
otherwise not obligated by law.
cc: ("Master Servicer")
EXHIBIT V
FORM OF SPECIALLY SERVICED MORTGAGE LOAN AND REO STATUS REPORT PURSUANT TO
SECTION 6.09(A)
Report Format: Report Date:
Specially Serviced Mortgage Loan
and
REO Status Reports
Servicer:
Pool Number:
Group Number:
Primary Loan ID Number
Related Owner Loan ID Number
Specially Serviced Loan Status
Servicing Transfer Date
REO Date of Acquisition
Date of Note
Lien Position Code
Cross Collateralization Provision
Cross Default Terms
Maturity Date
Paid-To-Date
Number of Days Past Due
Current Principal Balance
Mortgage Interest Rate
Mortgagor
Name of Mortgaged Property
Property Street Address
Property City
Property County
Property State
Property Zip Code
Property Type Code
Property Type Sub-Code
Occupancy as of Most Recent Rent Roll
Date of Most Recent Rent Roll
Net Rentable Building Area (S.F.)
# of Units/Pads/Beds/Rooms
Cumulative Outstanding Servicing Advance
Most Recent Annual NOI
Date of Most Recent Annual NOI
Annual NOI Statement Type
Trailing NOI
Trailing NOI Date
Trailing Effective Gross Income
Trailing Effective Gross Income Date
Most Recent Appraised Value
Most Recent Appraised Value Date
Current LTV Ratio
Non-Recoverable Advance Flag
Cumulative Outstanding Non-Recoverable
Sales Contract Due Diligence Expiration Date
Ad Valorum Assessed Value
Executed Sales Contract
Executed Sales Contract Amount
Executed Sales Contract Estimated Closing Date
Issues/Action
Estimated Gain/Loss at REO Sale
Overall Inspection Evaluation at Last Property Inspection Report
Date of last Property Inspection Report
Net Expense Since Date of REO Acquisition
Number of Pending Offer(s)
Amount of Pending Offer(s)
Prospective Purchaser's Name(s)
Asset Officer
Asset Officer Phone Number
<TABLE>
<S> <C> <C> <C> <C>
IDF Field Field
Field Field Name Size Format Edit Reference
1 Report Date 8 Date Date file created for any and all exhibits
transferred to the Master Servicer.
227 Primary Servicer
Code 2 Alpha Master Servicer defined. (This field may change)
2 Primary Loan
ID Number 10 Alpha Primary Servicer defined. Must be unique.
3 Related Owner
Loan ID Number 10 Numeric Related owner loan number during conduit period only.
Master Servicer defined. (This field will not be static)
237 Pool Number 2 Alpha Master Servicer defined. Asset pool identification number.
Can be used to identify loans for upcoming securitizations.
(This field will remain static)
238 Group Number
(Sub-Pool Number) 4 Numeric Unique number assigned to track loans in securitized pools.
Master Servicer defined. (This field will remain static).
195 Specially Serviced
Loan Status 2 Alpha 1 = Modification/Negotiations Pending (Anticipate
modification to loan terms and return to performing status)
2 = Intent to Foreclose (Mortgage loan identified
for foreclosure)
3 = Foreclosure In Process (Mortgage loan in the
actual process of judicial foreclosure)
4 = Foreclosure in Process (Mortgage loan in the
actual process of non-judicial foreclosure)
5 = Banktruptcy (Confirmation of bankrutpcy filing
received)
6 = Monitoring (Mortgage loans which have been
modified and/or brought current and are being monitored
for three consecutive monthly payments before being
restored to Primary Servicer)
7 = Payoff in full anticipated.
8 = Payoff at discount anticipated.
9 = REO property.
193 Servicing
Transfer Date 8 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.
203 REO Date of
Acquisition 8 Date Special Servicer defined field. Date title passed from
Borrower to related owner or Trustee.
26 Date of Note 8 Date Note date. May be different from Date Loan Funded.
15 Lien Position
Code 1 Alpha Identify investor lien position:
12 Cross
Collateralization
Provision 1 Alpha Indicate if provision is made for collateral pledged
on related debt: Y = Yes; N = No.
11 Cross Default
Terms 40 Alpha Narrative. Identify related loan number / name.
45 Maturity Date 8 Date Date on which the last payment of principal is due and payable.
50 Paid-To Date 8 Date If providing a next due date, indicate on documentation.
NOTE: For Interest in Advance Loans: Use Last
Paid Installment Due Date. Use this field for the most
recent P&I payment.
51 Number of Days
Past Due 8 Date
47 Current Principal
Balance 12 Numeric As of the first of each month or the preceding business day as of
collection period.
52 Mortgage Interest
Rate 10 Numeric Note rate in effect on 1st day in loan accrual period for loan payment
due in current due period. Per annum rate of interest at which interest
accrues on the outstanding principal balance. Example: 8.375% coded
as 0.08375000.
120 Mortgagor 40 Alpha The name of the obligor(s).
126 Name of Mortgaged
Property 40 Alpha Primary property, if applicable.
127 Property Street
Address 35 Alpha
128 Property City 25 Alpha
129 Property County 25 Alpha
130 Property State 2 Alpha Postal abbreviation.
131 Property Zip Code 9 Numeric Nine digit zip code.
152 Property Type Code 2 Alpha MF = Multi-family
RT = Retail
NH = Skilled Nursing Home Facility
CH = Congregate Housing
IN = Industrial
SS = Self Storage Facility
MH = Mobile Home Park
OF = Office Building
HO = Hotel
MU = Mixed Use
OT = Other
153 Property Type
Sub-Code 2 Alpha
154 Occupancy as of
Most Recent Rent
Roll 10 Numeric Percentage occupied as of date indicated in Date of Most Recent Rent Roll.
155 Date of Most
Recent Rent Roll 8 Date Date applicable to Occupancy as of Most Recent Rent Roll.
159 Net Rentable
Building Area
(S.F.) 9 Numeric The area (square footage) for which tenants are obligated to pay rent
according to the lease.
160 # of Units/Pads/
Beds/Rooms As applicable to property type.
61 Cumulative
Outstanding
Servicing Advance 12 Numeric
169 Most Recent
Annual NOI 12 Numeric Most recent fiscal year ended NOI for property (Fiscal Year may equal
Current Year).
170 Date of Most
Recent Annual NOI 8 Date
171 Annual NOI
Statement Type 1 Alpha 1 = Audited; 2 = Non-Audited.
172 Trailing NOI 12 Numeric Last four quarter NOI annualized, as derived from last four quarters.
173 Trailing NOI Date 8 Date Stated usually as the most recent quarter from which trailing NOI
was calculated.
182 Trailing Effective
Gross Income 12 Numeric Last four quarters Effective Gross Income Annualized.
For Hotel Property Type this is known as Total Revenue.
183 Trailing Effective
Gross Income Date 8 Date Stated usually as the most recent quarter from which trailing
NOI was calculated.
149 Most Recent
Appraised Value 12 Numeric The latest appraisal that has been performed. Unless Specially
Serviced loan or other circumstances, this will usually remain
the Original Appraised Value.
150 Most Recent
Appraised Value
Date 8 Date
151 Current LTV Ratio 10 Numeric Calculation: CLTV = 100 X [Current Principal Balance/
Most Recent Appraised Value]
200 Non-Recoverable
Advance Flag 1 Alpha Indicate whether the advance is deemed non-recoverable:
Y = Yes; N = No.
201 Cumulative Outstanding
Non-Recoverable
Advances 12 Numeric
206 Sales Contract Due
Diligence Expiration
Date 8 Date
204 Ad Valorum Assessed
Value 12 Numeric
207 Executed Sales
Contract 1 Alpha Y = Yes; N = No
208 Executed Sales
Contract Amount 12 Numeric
209 Executed Sales
Contract Estimated
Closing Date 8 Date
213 Issues/Action 40 Alpha Brief narrative. E.G.. Encroachment, taxes being
protested, environmental spill. Field to be used
by Special Servicing and REO.
214 Estimated Gain/Loss
at REO Sale 12 Numeric
163 Overall Inspection
Evaluation at Last
Property Inspection
Report 1 Alpha From last Property Inspection Report:
164 Date of Last Property
Inspection Report 8 Date
216 Net Expenses Since
Date of REO
Acquisition 12 Numeric
210 Number of Pending
Offer(s) 1 Alpha Indicate number of pending offers 0 - 6. 0 = None;
1 = 1 Offer; etcetera up to 6 offers.
211 Amount of Pending
Offer(s) 12 Numeric Indicate amount of each pending offer, 1 - 6. Allow fields for 6 offers.
212 Prospective
Purchaser's Name(s) 25 Alpha Indicate Prospective Purchaser in accordance with Amount of Pending Offers.
242 Asset Officer 25 Alpha Name of Asset Officer assigned to monitoring loan.
243 Asset Officer
Phone Number 12 Alpha Phone Number of Asset Officer assigned to monitoring loan.
</TABLE>
EXHIBIT W
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(A)
(Date)
(Trustee)
(Trustee's Address)
(Master Servicer's Name)
(Master Servicer's Address)
Re: Transfer of Servicing of Mortgage Loan in the Name of
(Mortgagor's Name), Loan (Mortgagor's Primary Loan ID Number)
Dear Sir or Madam:
Please be advised that the servicing of the above referenced Mortgage Loan
will be returned to ("Master Servicer's Name") as of (Date). This Mortgage
Loan is being returned for the following reason:
__ 1. Request from Master Servicer that the Mortgage Loan be
returned based on receipt of information which resulted
in the Mortgage Loan not being considered a Specially
Serviced Mortgage Loan.
__ 2. The Mortgage Loan is current as to payments of principal and
interest. No Servicing Transfer Event is continuing.
Three Monthly Payments have been made in accordance with
the terms of the related Mortgage Note for the months of
(List Months), (Year).
__ 3. Other:
All capitalized terms, unless otherwise defined, shall have the meanings set
forth in the Pooling and Servicing Agreement, dated as of September 1, 1997,
among J.P. Morgan Commercial Mortgage Finance Corp., Midland Loan Services
L.P, LaSalle National Bank and ABN AMRO Bank N.V.
Very truly yours,
(Name of Special Servicer Servicing
Officer and Title)
EXHIBIT X
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(B)
(Date)
(Mortgagor's Name)
(Mortgagor's Address)
(Master Servicer's Name)
(Master Servicer's Address)
Re: Transfer of Servicing of Loan in the Name of (Mortgagor's Name),
Loan (Mortgagor's Primary Loan ID Number)
Dear (Mortgagor):
Please be advised that the servicing of the above-referenced loan will
be returned to ("Master Servicer's Name") for servicing as of the date of
this letter. This loan is being returned to ("Master Servicer's Name") for
servicing for the following reason:
__ The loan has been current in payments under existing terms for
three consecutive monthly payments.
__ The loan is returned to ("Master Servicer's Name") based upon
receipt of information which resulted in the loan not being considered a
Specially Serviced Mortgage Loan.
__ The loan has been modified and the three consecutive monthly
payments have been made in accordance with the terms of the modified mortgage
note.
__ Other:
------------------------------------------------
------------------------------------------------
Please continue to remit all payments to ("Master Servicer's Name").
("Master Servicer's Name") will continue to process your checks and maintain
the accounting records for this loan. Please remember to use the above
("Master Servicer's Name") Loan Number when communicating with us and making
your payments to ("Master Servicer's Name").
Please acknowledge receipt of this letter by signing the enclosed copy
and returning it to my attention.
Sincerely,
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
cc: ("Master Servicer's Name")
Borrower Acknowledgment
By: --------------------------
Name: ------------------------
Title: -----------------------
Date:-------------------------
EXHIBIT Y
FORM OF REQUEST FOR RELEASE AND RECEIPT OF DOCUMENTS PURSUANT TO SECTION 3.15
OR SECTION 11.14(B)
To: (Trustee's Name)
From: (Servicer)
Date: (Date)
Re: Pooling and Servicing Agreement, dated as of
September 1, 1997, among J.P. Morgan Commercial
Mortgage Finance Corp., Midland Loan Services L.P,
LaSalle National Bank and ABN AMRO Bank N.V.
In connection with the administration of the Mortgage Loans held by you
as the Trustee, we request the release of the Mortgage File/(specify
documents) for the Mortgage Loan described below, for the reason indicated.
The undersigned agrees to acknowledge receipt of such Mortgage Loan file
promptly upon receipt.
Mortgagor's Name, Address & Zip Code:
- ------------------------------------
Mortgage Loan Number
- --------------------
Reason for Requesting Documents (check one)
- -------------------------------
- ---- 1. Mortgage Loan paid in full. (Servicer hereby certifies that
all amounts received in connection therewith have been credited
or will be escrowed as provided in the Servicing Agreement.)
____ 2. Mortgage Loan Liquidated. (Servicer hereby certifies that all
proceeds of foreclosure, insurance or other liquidation have
been finally received and credited to or will be escrowed
pursuant to the Servicing Agreement.)
____ 3. Mortgage Loan in Foreclosure.
____ 4. Other (explain)
If item 1 or 2 above is checked, and if all or part of the Custodian's
Mortgage File was previously released to us, please release to us our
previous receipt on file with you, as well as any additional documents in
your possession relating to the above specified Mortgage Loan. If item 3 or
4 is checked, upon our return of all of the above documents to you as
Custodian, please acknowledge your receipt by signing in the space indicated
below, and returning this form.
(Servicer)
By:___________________________________
Name:_________________________________
Title:________________________________
Date:_________________________________
Documents returned to Trustee:
By: ___________________________
Name: ________________________
Title:_________________________
Date: _________________________
EXHIBIT Z
REO ACCOUNT LETTER PURSUANT TO SECTION 6.09(B)
REO ACCOUNTS REPORT
FROM (DAY AFTER PRIOR PRIMARY REMTTANCE DATE)
TO AND INCLUDING (CURRENT PRIMARY REMITTANCE DATE) Account #
BEGINNING BALANCE $0.00
COLLECTIONS:
- -----------
DELINQUENT PAYMENTS $0.00
PAYMENTS FOR CURRENT DUE PERIOD $0.00
(Includes net liquidation proceeds
& prepayments)
PAYMENTS FOR FUTURE DUE PERIODS $0.00
PRIMARY SERVICER ADVANCES $0.00
LIQUIDATION PROCEEDS
- - To be applied to Servicer Advances $0.00
LATE FEES/PREPAYMENT PREMIUMS $0.00
UNAPPLIED FUNDS $0.00
LOANS IN PROCESS $0.00
INVESTMENT INCOME -
Due to Primary Servicer $0.00 -------------
TOTAL COLLECTIONS $0.00
=============
DISBURSEMENTS:
- -------------
TRANSFER TO ESCROW $0.00
SERVICE FEES $0.00
MASTER SERVICER REMITTANCE $0.00
PRINCIPAL ADVANCE REIMBURSEMENTS $0.00
INTEREST ADVANCE REIMBURSEMENTS $0.00
SERVICER ADVANCE REIMBURSEMENTS $0.00
ADVANCE INTEREST (Due and collected) $0.00
INVESTMENT INCOME - Due Primary Servicer $0.00 ---------------
TOTAL DISBURSEMENTS $0.00
===============
Report should be supported by account reconciliation and copy of bank
statement.
