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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) March 1, 1998
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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 March 1, 1998, 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, Dover House
Capital, LLC, as master servicer, CRIIMI MAE Services Limited Partnership, as
special servicer, and State Street Bank and Trust Company, as trustee. 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/ Nancy Alto
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Name: Nancy Alto
Title: Vice President
Dated: March 23, 1998
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,
DOVER HOUSE CAPITAL, LLC,
Master Servicer,
CRIIMI MAE SERVICES LIMITED PARTNERSHIP
Special Servicer,
and
STATE STREET BANK AND TRUST COMPANY,
Trustee
________________________________
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1998
________________________________
$796,414,011
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C6
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Advance/Delinquency Report . . . . . . . . . . . . . . . . . . 5
Advance Rate . . . . . . . . . . . . . . . . . . . . . . . . . 5
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Allocation Fraction . . . . . . . . . . . . . . . . . . . . . . 5
Anticipated Repayment Date . . . . . . . . . . . . . . . . . . 5
ARD Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Asset Strategy Report . . . . . . . . . . . . . . . . . . . . . 5
Assignment of Leases and Rents . . . . . . . . . . . . . . . . 5
Assignment of Mortgage . . . . . . . . . . . . . . . . . . . . 5
Assumed Final Distribution 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 or 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 Certificate . . . . . . . . . . . . . . . . . . . . . 8
Class Portion . . . . . . . . . . . . . . . . . . . . . . . . . 8
Class Prepayment Fraction . . . . . . . . . . . . . . . . . . . 8
Class R-I Certificate . . . . . . . . . . . . . . . . . . . . . 8
Class R-II Certificate . . . . . . . . . . . . . . . . . . . . 8
Class R-III Certificate . . . . . . . . . . . . . . . . . . . . 8
Class X Certificate . . . . . . . . . . . . . . . . . . . . . . 9
Class X Component . . . . . . . . . . . . . . . . . . . . . . . 9
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Collateral Value Adjustment . . . . . . . . . . . . . . . . . . 10
Collateral Value Adjustment Capitalization Amount . . . . . . . 11
Collateral Value Adjustment Event . . . . . . . . . . . . . . . 11
Collection Account . . . . . . . . . . . . . . . . . . . . . . 11
Collection Period . . . . . . . . . . . . . . . . . . . . . . . 11
Condemnation Proceeds . . . . . . . . . . . . . . . . . . . . . 11
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . 12
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Cut-off Date . . . . . . . . . . . . . . . . . . . . . . . . . 12
Cut-off Date Balance . . . . . . . . . . . . . . . . . . . . . 12
Defaulted Mortgage Loan . . . . . . . . . . . . . . . . . . . . 12
Deficient Valuation . . . . . . . . . . . . . . . . . . . . . . 12
Definitive Certificate . . . . . . . . . . . . . . . . . . . . 12
Delivery Date . . . . . . . . . . . . . . . . . . . . . . . . . 12
Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Depository Participant . . . . . . . . . . . . . . . . . . . . 13
Detailed Loan Indicative Data File . . . . . . . . . . . . . . 13
Determination Date . . . . . . . . . . . . . . . . . . . . . . 13
Directing Certificateholder . . . . . . . . . . . . . . . . . . 13
Directly Operate . . . . . . . . . . . . . . . . . . . . . . . 13
Disqualified Organization . . . . . . . . . . . . . . . . . . . 13
Distribution Date . . . . . . . . . . . . . . . . . . . . . . . 14
Due Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Eligible Account . . . . . . . . . . . . . . . . . . . . . . . 14
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . 15
Escrow Account . . . . . . . . . . . . . . . . . . . . . . . . 15
Escrow Payments . . . . . . . . . . . . . . . . . . . . . . . . 15
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 16
Excess Cash Flow . . . . . . . . . . . . . . . . . . . . . . . 16
Excess Condemnation Proceeds . . . . . . . . . . . . . . . . . 16
Excess Insurance Proceeds . . . . . . . . . . . . . . . . . . . 16
Excess Interest . . . . . . . . . . . . . . . . . . . . . . . . 16
FDIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Final Certification . . . . . . . . . . . . . . . . . . . . . . 16
Final Recovery Determination . . . . . . . . . . . . . . . . . 16
Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . 16
Holder or Certificateholder . . . . . . . . . . . . . . . . . . 17
Independent . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Insurance Policy . . . . . . . . . . . . . . . . . . . . . . . 17
Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . 17
Interest Accrual Amount . . . . . . . . . . . . . . . . . . . . 17
Interest Distribution Amount . . . . . . . . . . . . . . . . . 18
Interested Person . . . . . . . . . . . . . . . . . . . . . . . 18
Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Liquidation Event . . . . . . . . . . . . . . . . . . . . . . . 18
Liquidation Proceeds . . . . . . . . . . . . . . . . . . . . . 18
Loan Sale Agreement . . . . . . . . . . . . . . . . . . . . . . 19
Loss Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . 19
Master Remittance Date . . . . . . . . . . . . . . . . . . . . 19
Master Servicer . . . . . . . . . . . . . . . . . . . . . . . . 19
Master Servicing Fee . . . . . . . . . . . . . . . . . . . . . 19
Master Servicing Fee Rate . . . . . . . . . . . . . . . . . . . 19
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . 19
MGT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Modification . . . . . . . . . . . . . . . . . . . . . . . . . 19
Monitoring Certificateholder . . . . . . . . . . . . . . . . . 19
Monitoring Class . . . . . . . . . . . . . . . . . . . . . . . 19
Monthly Payment . . . . . . . . . . . . . . . . . . . . . . . . 19
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . . . 20
Mortgage Loan Documents . . . . . . . . . . . . . . . . . . . . 20
Mortgage Loan File . . . . . . . . . . . . . . . . . . . . . . 20
Mortgage Loan Schedule . . . . . . . . . . . . . . . . . . . . 20
Mortgage Loan Seller . . . . . . . . . . . . . . . . . . . . . 20
Mortgage Note . . . . . . . . . . . . . . . . . . . . . . . . . 20
Mortgage Rate . . . . . . . . . . . . . . . . . . . . . . . . . 21
Mortgaged Property . . . . . . . . . . . . . . . . . . . . . . 21
Mortgagor . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Most Subordinate Class of Certificates . . . . . . . . . . . . 21
Net Prepayment Premium . . . . . . . . . . . . . . . . . . . . 21
Nonrecoverable Advance . . . . . . . . . . . . . . . . . . . . 21
Nonrecoverable Advance Certificate . . . . . . . . . . . . . . 21
Non-United States Person . . . . . . . . . . . . . . . . . . . 21
Non-U.S. Treasury Net Prepayment Premium . . . . . . . . . . . 21
Notional Amount . . . . . . . . . . . . . . . . . . . . . . . . 22
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 22
Operating Statements and Rent Rolls Report . . . . . . . . . . 22
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 22
Original Class Balance . . . . . . . . . . . . . . . . . . . . 22
Ownership Interest . . . . . . . . . . . . . . . . . . . . . . 22
P&I Advance . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Pass-Through Rate . . . . . . . . . . . . . . . . . . . . . . . 22
Payment Reserve . . . . . . . . . . . . . . . . . . . . . . . . 22
Percentage Interest . . . . . . . . . . . . . . . . . . . . . . 22
Permitted Investments . . . . . . . . . . . . . . . . . . . . . 23
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Pool Factor . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Prepayment Assumption . . . . . . . . . . . . . . . . . . . . . 24
Prepayment Interest Excess . . . . . . . . . . . . . . . . . . 24
Prepayment Interest Shortfall . . . . . . . . . . . . . . . . . 24
Prepayment Premium . . . . . . . . . . . . . . . . . . . . . . 24
Prime Rate . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Principal Distribution Amount . . . . . . . . . . . . . . . . . 24
Principal Prepayment . . . . . . . . . . . . . . . . . . . . . 25
Private Certificates . . . . . . . . . . . . . . . . . . . . . 25
Property Improvement Expenses . . . . . . . . . . . . . . . . . 25
Property Inspection Report . . . . . . . . . . . . . . . . . . 25
Property Protection Expenses . . . . . . . . . . . . . . . . . 26
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . 26
Qualified Insurer . . . . . . . . . . . . . . . . . . . . . . . 27
Rating Agency . . . . . . . . . . . . . . . . . . . . . . . . . 27
Realized Loss . . . . . . . . . . . . . . . . . . . . . . . . . 27
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 28
REMIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
REMIC I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
REMIC I Uncertificated Interests . . . . . . . . . . . . . . . 28
REMIC II . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
REMIC II Uncertificated Interests . . . . . . . . . . . . . . . 28
REMIC III . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
REMIC Provisions . . . . . . . . . . . . . . . . . . . . . . . 29
Remittance Period . . . . . . . . . . . . . . . . . . . . . . . 29
Remittance Rate . . . . . . . . . . . . . . . . . . . . . . . . 29
Remittance Report . . . . . . . . . . . . . . . . . . . . . . . 29
Rents from Real Property . . . . . . . . . . . . . . . . . . . 29
REO Account . . . . . . . . . . . . . . . . . . . . . . . . . . 29
REO Acquisition . . . . . . . . . . . . . . . . . . . . . . . . 29
REO Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . 29
REO Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 29
REO Property . . . . . . . . . . . . . . . . . . . . . . . . . 30
REO Status Report . . . . . . . . . . . . . . . . . . . . . . . 30
Repair and Remediation Reserve . . . . . . . . . . . . . . . . 30
Replacement Reserve . . . . . . . . . . . . . . . . . . . . . . 30
Replacement Special Servicer . . . . . . . . . . . . . . . . . 30
Request for Release and Receipt of Documents . . . . . . . . . 30
Required Appraisal Date . . . . . . . . . . . . . . . . . . . . 30
Required Rating . . . . . . . . . . . . . . . . . . . . . . . . 30
Residual Certificate . . . . . . . . . . . . . . . . . . . . . 31
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 31
Revised Rate . . . . . . . . . . . . . . . . . . . . . . . . . 31
Scheduled Principal Balance . . . . . . . . . . . . . . . . . . 31
Security Agreement . . . . . . . . . . . . . . . . . . . . . . 31
Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Servicing Advance . . . . . . . . . . . . . . . . . . . . . . . 31
Servicing Fee . . . . . . . . . . . . . . . . . . . . . . . . . 31
Servicing Fee Rate . . . . . . . . . . . . . . . . . . . . . . 31
Servicing Officer . . . . . . . . . . . . . . . . . . . . . . . 31
Servicing Transfer Date . . . . . . . . . . . . . . . . . . . . 32
Servicing Transfer Event . . . . . . . . . . . . . . . . . . . 32
Specially Serviced Mortgage Loan . . . . . . . . . . . . . . . 32
Specially Serviced Mortgage Loan Status Report . . . . . . . . 32
Special Servicer . . . . . . . . . . . . . . . . . . . . . . . 32
Special Servicing Fee . . . . . . . . . . . . . . . . . . . . . 32
Special Servicing Fee Rate . . . . . . . . . . . . . . . . . . 32
Startup Day . . . . . . . . . . . . . . . . . . . . . . . . . . 32
State Tax Laws . . . . . . . . . . . . . . . . . . . . . . . . 32
Stated Principal Balance . . . . . . . . . . . . . . . . . . . 33
Tax Matters Person . . . . . . . . . . . . . . . . . . . . . . 34
Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Tenant Improvement and Leasing Commissions Reserve . . . . . . 34
Transfer Date . . . . . . . . . . . . . . . . . . . . . . . . . 34
Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Trustee Fee . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Trustee Fee Rate . . . . . . . . . . . . . . . . . . . . . . . 34
UCC Financing Statement . . . . . . . . . . . . . . . . . . . . 34
Uncertificated Interest I . . . . . . . . . . . . . . . . . . . 34
Uncertificated Interest II . . . . . . . . . . . . . . . . . . 34
Uncertificated Interest III . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest IV . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest V . . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest VI . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest VII . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest VIII . . . . . . . . . . . . . . . . . 35
Uncertificated Interest IX . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest X . . . . . . . . . . . . . . . . . . . 35
Uncertificated Interest XI . . . . . . . . . . . . . . . . . . 35
Underwriter . . . . . . . . . . . . . . . . . . . . . . . . . . 35
United States Person . . . . . . . . . . . . . . . . . . . . . 35
U.S. Treasury Net Prepayment Premium . . . . . . . . . . . . . 36
Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . 36
Weighted Average Remittance Rate . . . . . . . . . . . . . . . 36
SECTION 1.02 Calculations . . . . . . . . . . . . . . . . . . . . 36
SECTION 1.03 Rules of Construction . . . . . . . . . . . . . . . . 36
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans . . . . . . . . . . . . 37
SECTION 2.02 Acceptance by Trustee . . . . . . . . . . . . . . . . 39
SECTION 2.03 Representations and Warranties of the Depositor, the
Master Servicer and the Special Servicer; Assignment
of Rights . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 2.04 Repurchase of Mortgage Loans for Breaches of
Representation and Warranty . . . . . . . . . . . . . 45
SECTION 2.05 Execution of Certificates . . . . . . . . . . . . . . 46
ARTICLE III
GENERAL SERVICING AND ADMINISTRATION
SECTION 3.01 Access to Certain Documentation Regarding the
Mortgage Loans and This Agreement . . . . . . . . . . 47
SECTION 3.02 Annual Statement As to Compliance . . . . . . . . . . 47
SECTION 3.03 Annual Independent Public Accountants' Servicing
Report . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 3.04 Merger or Consolidation of Any Servicer . . . . . . . 48
SECTION 3.05 Limitation on Liability of the Servicers and Others . 48
SECTION 3.06 Resignation of Servicers . . . . . . . . . . . . . . 49
SECTION 3.07 Maintenance of Errors and Omissions and Fidelity
Coverage . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 3.08 Indemnity . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.09 Information Systems . . . . . . . . . . . . . . . . . 52
SECTION 3.10 Successor to a Servicer . . . . . . . . . . . . . . . 52
SECTION 3.11 REMIC Administration . . . . . . . . . . . . . . . . 53
SECTION 3.12 Notices to Mortgagors . . . . . . . . . . . . . . . . 57
SECTION 3.13 Subservicing . . . . . . . . . . . . . . . . . . . . 57
SECTION 3.14 Record Title to Mortgage Loans, Etc. . . . . . . . . 59
SECTION 3.15 Release of Documents and Instruments of
Satisfaction . . . . . . . . . . . . . . . . . . . . 59
SECTION 3.16 Additional Servicing Restrictions . . . . . . . . . . 60
ARTICLE IV
MASTER SERVICING
SECTION 4.01 The Master Servicer . . . . . . . . . . . . . . . . . 61
SECTION 4.02 Collection Account; Collection of Certain Mortgage
Loan Payments . . . . . . . . . . . . . . . . . . . . 63
SECTION 4.03 Permitted Withdrawals from the Collection Account . . 65
SECTION 4.04 Remittances to the Trustee . . . . . . . . . . . . . 67
SECTION 4.05 Master Servicer Advances . . . . . . . . . . . . . . 68
SECTION 4.06 Escrow Accounts . . . . . . . . . . . . . . . . . . . 69
SECTION 4.07 Maintenance of Insurance . . . . . . . . . . . . . . 71
SECTION 4.08 Enforcement of "Due-on-Sale" Clauses; Assumption
Agreements . . . . . . . . . . . . . . . . . . . . . 72
SECTION 4.09 Review of Property Inspections, Operating
Statements, Rent Rolls . . . . . . . . . . . . . . . 74
SECTION 4.10 Reports of the Master Servicer . . . . . . . . . . . 75
SECTION 4.11 Confirmation of Balloon Payment . . . . . . . . . . . 75
SECTION 4.12 Master Servicer Compensation . . . . . . . . . . . . 75
SECTION 4.13 Adjustment of Master Servicer's Compensation. . . . . 76
SECTION 4.14 Implementation of Operations and Maintenance Plans. . 76
SECTION 4.15 Dissemination of Information . . . . . . . . . . . . 76
ARTICLE V
(RESERVED)
ARTICLE VI
SPECIAL SERVICING
SECTION 6.01 The Special Servicer . . . . . . . . . . . . . . . . 78
SECTION 6.02 Transfer to Special Servicing . . . . . . . . . . . . 78
SECTION 6.03 Servicing of Specially Serviced Mortgage Loans . . . 79
SECTION 6.04 Management of REO Property. . . . . . . . . . . . . . 83
SECTION 6.05 Sale of REO Property and Specially Serviced Mortgage
Loans . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 6.06 REO Account; Collection of REO Proceeds . . . . . . . 86
SECTION 6.07 Master Servicer. . . . . . . . . . . . . . . . . . . 87
SECTION 6.08 Remittances to Master Servicer . . . . . . . . . . . 87
SECTION 6.09 Specially Serviced Mortgage Loan Status Reports, REO
Status Reports and Other Reports. . . . . . . . . . . 87
SECTION 6.10 Special Servicer Advances . . . . . . . . . . . . . . 88
SECTION 6.11 Environmental Considerations. . . . . . . . . . . . . 89
SECTION 6.12 Restoration of Specially Serviced Mortgage Loans . . 92
SECTION 6.13 Special Servicer Compensation. . . . . . . . . . . . 93
SECTION 6.14 Limitations on the Special Servicer with Respect to
ARD Loans. . . . . . . . . . . . . . . . . . . . . . 93
SECTION 6.15 Collateral Value Adjustments . . . . . . . . . . . . 93
SECTION 6.16 Replacement Special Servicer . . . . . . . . . . . . 93
ARTICLE VII
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 7.01 Certificate Account; Remittances to the Trustee . . . 95
SECTION 7.02 Distributions . . . . . . . . . . . . . . . . . . . . 95
SECTION 7.03 Statements to Certificateholders . . . . . . . . . . 99
SECTION 7.04 Distribution of Reports to the Trustee and the
Depositor; Advances by the Master Servicer . . . . . 101
SECTION 7.05 Allocations of Realized Losses and Collateral Value
Adjustments . . . . . . . . . . . . . . . . . . . . . 103
ARTICLE VIII
THE CERTIFICATES
SECTION 8.01 The Certificates . . . . . . . . . . . . . . . . . . 104
SECTION 8.02 Registration of Transfer and Exchange of
Certificates . . . . . . . . . . . . . . . . . . . . 105
SECTION 8.03 Mutilated, Destroyed, Lost or Stolen Certificates . . 109
SECTION 8.04 Persons Deemed Owners . . . . . . . . . . . . . . . . 109
ARTICLE IX
THE DEPOSITOR
SECTION 9.01 Liability of the Depositor . . . . . . . . . . . . . 110
SECTION 9.02 Merger, Consolidation or Conversion of the
Depositor . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 9.03 Limitation on Liability of the Depositor and Others . 110
ARTICLE X
DEFAULT
SECTION 10.01 Events of Default . . . . . . . . . . . . . . . . . . 111
SECTION 10.02 Trustee to Act; Appointment of Successor . . . . . . 113
SECTION 10.03 Notification to Certificateholders . . . . . . . . . 114
SECTION 10.04 Waiver of Events of Default . . . . . . . . . . . . . 114
SECTION 10.05 Additional Remedies of Trustee Upon Event of
Default . . . . . . . . . . . . . . . . . . . . . . . 114
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.01 Duties of Trustee . . . . . . . . . . . . . . . . . . 116
SECTION 11.02 Monitoring Certificateholders and Directing
Certificateholder . . . . . . . . . . . . . . . . . . 117
SECTION 11.03 Powers of Attorney . . . . . . . . . . . . . . . . . 118
SECTION 11.04 Certification by Certificate Owners . . . . . . . . . 118
SECTION 11.05 Certain Matters Affecting the Trustee . . . . . . . . 119
SECTION 11.06 Trustee Not Liable for Certificates or Mortgage
Loans. . . . . . . . . . . . . . . . . . . . . . . . 120
SECTION 11.07 Trustee May Own Certificates . . . . . . . . . . . . 121
SECTION 11.08 Fees and Expenses of Trustee; Indemnification of
Trustee . . . . . . . . . . . . . . . . . . . . . . . 121
SECTION 11.09 Eligibility Requirements for Trustee . . . . . . . . 122
SECTION 11.10 Resignation and Removal of the Trustee . . . . . . . 123
SECTION 11.11 Successor Trustee . . . . . . . . . . . . . . . . . . 123
SECTION 11.12 Merger or Consolidation of Trustee . . . . . . . . . 124
SECTION 11.13 Appointment of Co-Trustee or Separate Trustee . . . . 124
SECTION 11.14 Appointment of Custodians . . . . . . . . . . . . . . 125
SECTION 11.15 Representations and Warranties of the Trustee . . . . 127
SECTION 11.16 SEC Filings. . . . . . . . . . . . . . . . . . . . . 128
SECTION 11.17 Massachusetts Filings. . . . . . . . . . . . . . . . 128
ARTICLE XII
TERMINATION
SECTION 12.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans . . . . . . . . . . . . . . . . . . . 129
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Amendment . . . . . . . . . . . . . . . . . . . . . . 131
SECTION 13.02 Recordation of Agreement; Counterparts . . . . . . . 132
SECTION 13.03 Limitation on Rights of Certificateholders . . . . . 133
SECTION 13.04 Governing Law . . . . . . . . . . . . . . . . . . . . 134
SECTION 13.05 Notices . . . . . . . . . . . . . . . . . . . . . . . 134
SECTION 13.06 Severability of Provisions . . . . . . . . . . . . . 134
SECTION 13.07 Grant of a Security Interest . . . . . . . . . . . . 135
SECTION 13.08 Successors and Assigns . . . . . . . . . . . . . . . 135
SECTION 13.09 Article and Section Headings . . . . . . . . . . . . 135
SECTION 13.10 Notices and Information to Rating Agencies . . . . . 136
SECTION 13.11 Certificateholders' List . . . . . . . . . . . . . . 137
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
March 1, 1998, among J.P. Morgan Commercial Mortgage Finance Corp., a
Delaware corporation, as Depositor, Dover House Capital, LLC, a Georgia
limited liability company, as Master Servicer, CRIIMI MAE Services Limited
Partnership, a Maryland limited partnership, as Special Servicer, and State
Street Bank and Trust Company, a Massachusetts trust company, as Trustee.
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". Ninety-one 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 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 6.373% $99,233,000
Class A2 6.533% $220,367,000
Class A3 6.613% $245,853,000
Class B 6.735% $ 47,784,000
Class C 6.880% $ 39,820,000
Class D 6.979% $ 47,784,000
Class E 6.812% $ 15,928,000
Class X /(1)/ $796,414,011/(2)/
Class F 6.000% $39,820,000
Class G 6.000% $19,910,000
Class H 6.000% 5,973,000
Class NR 6.000% //$13,942,011
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 immediately prior to such
Distribution Date weighted on the basis of the Class Balance of each
such Class 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 $796,414,011.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accepted Servicing Practices": The procedures that the Master
Servicer 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
Special Servicer follows 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 Special Servicer services, administers and disposes 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
Special Servicer services, administers and disposes 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 Special Servicer or any Affiliate of the
Special Servicer, as applicable, may have with any Mortgagor or any
Affiliate of any Mortgagor or any other party to this Agreement;
(ii) the Special Servicer's obligations to make Advances with respect to
the Mortgage Loans;
(iii) the adequacy of the Special Servicer's compensation for its
services hereunder or with respect to any particular transaction;
(iv) the ownership, servicing or management for others by the Special
Servicer of any other mortgage loans or property;
(v) the ownership by the Special Servicer of any Certificates or other
securities issued in connection with any Securitization; or
(vi) the obligation of the 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.
"Anticipated Repayment Date": With respect to any ARD Loan,
designated as such on the Mortgage Loan Schedule, the date upon which such
ARD Loan starts to accrue interest at its Revised Rate.
"ARD Loan": A Loan that is designated as such on the Mortgage Loan
Schedule.
"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
January 2030, which is the first Distribution Date following the second
anniversary of the date at which the Stated Principal Balance of all the
Mortgage Loans has been reduced to zero, assuming no prepayments and that the
Balloon Mortgage Loans fully amortize according to their amortization
schedule and no Balloon Payment is made.
"Available Distribution Amount": With respect to any Distribution
Date, the amount on deposit in the Certificate Account as of the close of
business on the related Master Remittance Date immediately preceding such
Distribution Date, after giving effect to expenses of the Trust Fund (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 Georgia,
Massachusetts, Virginia 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, Class R-I,
Class R-II or Class R-III Certificate.
"Certificate Account": The segregated trust account or accounts
created and maintained by the Trustee pursuant to Section 7.01 in trust for
Certificateholders, which shall be entitled "State Street Bank and Trust
Company, as Trustee, in trust for registered holders of J.P. Morgan
Commercial Mortgage Finance Corp., Mortgage Pass-Through Certificates, Series
1998-C6".
"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 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 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" or "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 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 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 X
Certificates, the excess of any U.S. Treasury Net Prepayment Premiums for
such Distribution Date over the amounts calculated pursuant to clause (a).
"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 6.373% 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 6.533% 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 6.613% 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 6.735% 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 6.880% 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 6.979% 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 over 6.812% 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 6.000% 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 6.000% 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 6.000% 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; and
(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 6.000% per annum
and a notional amount solely for purposes of calculating interest
thereon equal to the Class Balance of the Class NR Certificates
immediately prior to such Distribution Date.
"Code": The Internal Revenue Code of 1986, as amended.
"Collateral Value Adjustment": With respect to a Mortgage Loan as
to which a Collateral Value Adjustment Event has occurred, an amount equal to
the excess of (a) the Stated Principal Balance of the Mortgage Loan as of the
date of the Collateral Value Adjustment Event over (b) the excess of (i) 90%
of the current appraised value of the related Mortgaged Property as
determined by an Independent MAI appraisal thereof prepared in accordance
with 12 CFR 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.
"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 "Dover House Capital, LLC, as
master servicer, for the benefit of J.P. Morgan Commercial Mortgage Finance
Corp. Mortgage Pass-Through Certificates Series 1998-C6".
"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 State Street Bank and Trust
Company, Two International Place, Boston, Massachusetts 02110, Attention:
Corporate Trust Department, J.P. Morgan Commercial Mortgage Finance Corp.
Series 1998-C6.
"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 State
Street Bank and Trust Company, acting in its capacity as custodian for the
Trustee.
"Cut-off Date": March 1, 1998.
"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": March 10, 1998.
"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, the 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 and,
solely with respect to the Specially Serviced Mortgage Loans, the Special
Servicer and 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 beginning in April 1998.
"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 (including the
Trustee) (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 Group and if rated by Fitch IBCA,
Inc., then Fitch IBCA, Inc.; 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
(including the Trustee) 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 (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" by each Rating Agency (or if such obligations are not rated
by Fitch IBCA, Inc., by Standard & Poor's Ratings Group). In
connection with determining whether a depository institution
satisfies the criteria set forth in clauses (B) or (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 "Dover
House Capital, LLC, as master servicer, for the benefit of J.P. Morgan
Commercial Mortgage Finance Corp. Mortgage Pass-Through Certificates, Series
1998-C6, 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 Cash Flow": The cash flow from the Mortgaged Property
securing an ARD Loan after payments of interest (at the Mortgage Interest
Rate) and principal (based on the amortization schedule), and (i) required
payments for the tax and insurance fund and ground lease escrows fund,
(ii) payment of monthly debt service, (iii) payments to any other required
escrow funds, (iv) payment of operating expenses pursuant to the terms of an
annual budget approved by the Master Servicer or in an amount which is capped
at 1/12 of 105% of the prior year's operating expenses, (v) principal on the
Mortgage Loan until such principal is paid in full and (vi) Excess Interest.
"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.
"Excess Interest" shall mean any accrued and deferred interest on
an ARD Loan in accordance with the following terms. Commencing on the
respective Anticipated Repayment Date each ARD Loan generally will bear
interest at a fixed rate per annum equal to the original Mortgage Rate plus
2% (the "Revised Rate"). Until the principal balance of each such Mortgage
Loan has been reduced to zero, such Mortgage Loan will only be required to
pay interest at the original Mortgage Rate and the interest accrued at the
excess of the related Revised Rate over the related Mortgage Rate will be
deferred.
"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.
"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, 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) with respect to each class of Certificates other
than the Class X Certificates, any Collateral Value Adjustment Capitalization
Amount allocated to such class 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 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 (iv) 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 March
1, 1998, 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": Dover House Capital, LLC, a Georgia limited
liability company, 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.
"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": MGT.
"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 or the Trustee, 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 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.
"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": With respect to all Mortgage Loans other
than the ARD Loans, it is assumed for purposes of Section 3.11(l) that there
are no prepayments on the Mortgage Loans. With respect to all ARD Loans, it
is assumed for purposes of Section 3.11(l) that the ARD Loans will be fully
prepaid on their related Anticipated Repayment Dates.
"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.
"Prime Rate": As of any day, the per annum rate reported in The
---
Wall Street Journal on the immediately preceding Business Day as the prime
- -------------------
rate.
"Principal Distribution Amount": With respect to any Distribution
Date an amount equal to the aggregate of (a) all scheduled payments of
principal (other than Balloon Payments) due on the Mortgage Loans on the
related Due Date whether or not received and all scheduled Balloon Payments
received, (b) if the scheduled Balloon Payment is not received, with respect
to any Balloon Loans on and after the Maturity Date thereof, the principal
payment that would need to be received in the related month in order to fully
amortize such Balloon Loan with level monthly payments by the end of the term
used to derive scheduled payments of principal due prior to the related
Maturity Date, (c) to the extent not previously advanced, any unscheduled
principal recoveries received during the related Remittance Period in respect
of the Mortgage Loans, whether in the form of Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds, amounts received as a result of the purchase
of any Mortgage Loan out of the Trust Fund or receipt of overdue payments,
(d) any Collateral Value Adjustment Capitalization Amount allocated in
connection with such Distribution Date, and (e) any other portion of the
Adjusted Available Distribution Amount remaining undistributed after payment
of any interest payable on the Certificates pursuant to clause (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 F, Class G, Class H, Class NR,
Class R-I, Class R-II and Class R-III Certificates.
"Property Improvement Expenses": Any costs and expenses for
repairs, replacements or improvements which the Special Servicer deems
advisable under the circumstances, but only to the extent that they are paid
to third persons in arms' length arrangements, which may, to the extent
expressly approved in the related Asset Strategy Report, be Affiliates who
are generally in the business of providing such goods and services, and that
such expenses are reasonable for the types of goods or services provided in
the geographical area in which such goods or services are provided, designed
to maintain or improve the value of a Mortgaged Property or REO Property but
not immediately necessary to operate it, that are incurred for the purpose of
facilitating the sale of the related Specially Serviced Mortgage Loan or REO
Property and maximizing the proceeds thereof, including but not limited to
the following: (a) cosmetic improvements such as painting and landscaping;
(b) build-out or modification to suit a particular prospective or actual
tenant or buyer; (c) replacement of items which are obsolescent or wearing
out but which may not be dysfunctional; and (d) moneys paid to a tenant or
buyer for a purpose similar to a Property Improvement Expense.
"Property Inspection Report": The report prepared pursuant to
Section 4.09(a) hereof in the form of Exhibit M hereto.
"Property Protection Expenses": The following costs and expenses,
but, with respect to items (b) through (n) below, only to the extent that
they are paid to third persons in arms' length arrangements, which may, to
the extent expressly approved in the related Asset Strategy Report, be
Affiliates who are generally in the business of providing such goods and
services, and that such expenses are reasonable for the types of goods or
services provided in the geographical area in which such goods or services
are provided: (a) real estate taxes, assessments and similar charges; (b)
premiums for insurance; (c) utility costs; (d) payments required under
service contracts, including but not limited to service contracts for
heating, ventilation and air conditioning systems, elevators, landscape
maintenance, pest extermination, security, model furniture, swimming pool
service, trash removal, answering service, credit checks and monitoring the
satisfaction of real estate tax assessments and the designation from time to
time of special flood hazard areas; (e) payroll costs and benefits for on-
site maintenance personnel, including but not limited to housekeeping
employees, porters and general maintenance and security employees; (f)
property management fees; (g) usual and customary leasing and sales brokerage
expenses and commissions and other costs and expenses associated with
marketing, selling or otherwise disposing of Specially Serviced Mortgage
Loans or REO Properties including, without limitation, marketing brochures,
auction services, reasonable legal fees, surveys, title insurance premiums
and other title company costs; (h) permits, licenses and registration fees
and costs; (i) any expense necessary in order to prevent or cure a breach
under a lease, contract or agreement, if the consequences of failure to
prevent or cure could, in the sole judgment of the Special Servicer, have a
material adverse effect with respect to the Mortgage Loan, REO Property or
Mortgaged Property; (j) any expense necessary in order to prevent or cure a
material violation of any applicable law, regulation, code or ordinance with
respect to any Mortgaged Property, including without limitation any
environmental remediation; (k) costs and expenses of appraisals, valuations,
surveys, inspections, environmental assessments, credit reports, or market
studies (including, in each case, review thereof); (l) transportation,
lodging and other travel related costs incurred by the Special Servicer in
performing its duties under this Agreement, provided that the travel expenses
of the Special Servicer's employees providing services under this Agreement
shall be limited to the lesser of actual expenses or a reasonable budgeted
amount for each calendar year mutually agreed upon by the Trustee and the
Special Servicer; (m) other such reasonable marketing, legal, accountants,
expert witness fees and other fees and expenses incurred by the Special
Servicer in connection with the enforcement, collection, foreclosure,
management and operation of Specially Serviced Mortgage Loans or REO
Properties, the bankruptcy of any related Mortgagor, and the performance of
their servicing duties under this Agreement; and (n) such other expenses as
are reasonable and immediately necessary to operate, 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;
(ii) whose claims paying ability is rated not less than the lower
of (x) "A-" and (y) one rating category below the highest
rating for the outstanding Certificates, but not less than
"BBB", by each Rating Agency (or, if not rated by Fitch IBCA,
Inc., by Standard & Poor's Ratings Group); and
(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 IBCA, Inc. and Standard & Poor's
Ratings Group.
"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 ninety-one
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 ninety-one
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 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 IBCA, Inc., by Standard & Poor's Ratings
Group); 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 IBCA, Inc., by Standard &
Poor's Ratings Group).
"Residual Certificate": Any of the Class R-I, Class R-II or Class
R-III Certificates.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to and working in its corporate trust department 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.
"Revised Rate": With respect to any ARD Loan, the increased
interest rate after the Anticipated Repayment Date (in the absence of a
default) for each applicable Mortgage Loan, as calculated and as set forth in
the related Mortgage Loan Documents.
"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 and the Special Servicing Fee pursuant to Section 6.13.
"Servicing Fee Rate": With respect to any Mortgage Loan, shall
equal the sum of the related Master Servicing Fee Rate, the Special Servicing
Fee Rate and the Trustee Fee Rate.
"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": CRIIMI MAE Services Limited Partnership, a
Maryland 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.
"Special Servicing Fee Rate": With respect to any Mortgage Loan,
0.0125% per annum.
"Startup Day": The Delivery Date.
"State Tax Laws": The laws of the states of New York, Georgia,
Maryland and Massachusetts 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.
"Tax Matters Person": The "tax matters person" (as defined in the
REMIC Provisions) of the REMIC created hereunder.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of the Trust Fund due to its classification as a
REMIC under the REMIC Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
State Tax Laws.
"Tenant Improvement and Leasing Commissions Reserve": With respect
to any Mortgage Loan, the amounts required to be paid by the Mortgagor
pursuant to the Mortgage Loan Documents to refit and release either vacant
space or blocks of space anticipated to be vacated during the term of
financing.
"Transfer Date": With respect to any Mortgage Loan, shall have the
meaning set forth herein.
"Trust Fund": REMIC I, REMIC II and REMIC III.
"Trustee": State Street Bank and Trust Company, a Massachusetts
trust company 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).
"Trustee Fee Rate": Shall have the meaning set forth in 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 Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Underwriter": J.P. Morgan Securities Inc.
"United States Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in,
or under the laws of, the United States or any political subdivision thereof
(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 and Class NR Certificates in proportion to the
respective Class Balances, 1.00% of all Voting Rights shall be allocated to
the Class X Certificates, and 0.331/3% of all Voting Rights shall be
allocated to each of the Class R-I, Class R-II and Class R-III Certificates.
Voting Rights allocated to a Class of Certificateholders shall be allocated
among such Certificateholders in proportion to the Percentage Interests
evidenced by their respective Certificates. Allocation of Realized Losses
and Collateral Value Adjustments to a Class of Certificates and any other
event which changes such Class Balance will also result in a corresponding
change to such Class' Voting Rights.
"Weighted Average Remittance Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to four decimal places, of the
Remittance Rates in effect for the Mortgage Loans as of the commencement of
the related Collection Period, weighted on the basis of the respective Stated
Principal Balances of such Mortgage Loans outstanding immediately following
the Distribution Date in the related Collection Period.
SECTION 1.02 Calculations.
Unless otherwise specified, all calculations described herein shall
be made on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 1.03 Rules of Construction.
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: "State
Street Bank and Trust Company, as Trustee for J.P. Morgan
Commercial Mortgage Finance Corp. Mortgage Pass-Through
Certificates Series 1998-C6", in complete (including recording
information) and recordable form;
(v) assignments in complete and 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: "State
Street Bank and Trust Company, as Trustee for J.P. Morgan
Commercial Mortgage Finance Corp. Mortgage Pass-Through
Certificates Series 1998-C6";
(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 Business Days of the
Delivery Date) cause (i) the assignment of the Mortgage specified in clauses
(iv) and (v) above to be submitted for recording or filing, at its own
expense, in the appropriate public office for real property records; and (ii)
the UCC-2 or UCC-3 Assignments of Financing Statements specified in clause
(x) above to be submitted for recording or filing, at its own expense, in the
appropriate public office for UCC Assignments. Any such assignment delivered
in blank shall be completed to the order of the Trustee, in the following
form: "State Street Bank and Trust Company, as Trustee for J.P. Morgan
Commercial Mortgage Finance Corp. Mortgage Pass-Through Certificates Series
1998-C6" prior to recording. Each such assignment shall reflect that it
should be returned by the public recording office following recording to
State Street Bank and Trust Company as the initial Custodian. If any such
assignment is lost or returned unrecorded or unfiled because of a defect
therein, the Depositor shall promptly prepare or cause to be prepared a
substitute therefor or cure such defect, as the case may be, and thereafter
cause the same to be duly recorded or filed.
(d) The Depositor shall complete the endorsements on those
Mortgage Notes delivered in blank (or cause such to be completed) to the
order of the Trustee.
SECTION 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt, subject to the provisions of Section 2.01, 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, the Master Servicer and the Special
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, the Special 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 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 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 Master Servicer, the Special Servicer and the
Depositor, as of the Delivery Date, that:
(i) Due Organization and Authority.
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(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
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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;
(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 by such Servicer pursuant to Section 3.13
shall be in all material respects consistent with the terms of this
Agreement; and
(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.
(c) In addition, Dover House Capital, LLC, as a condition to the
consummation of the transaction contemplated herein, hereby represents and
warrants to the Trustee and the Depositor that as of the Delivery Date, (i)
it is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Georgia and (ii) it has been
approved by Standard & Poor's Ratings Group and Fitch IBCA, Inc., to the
extent required to be approved thereby, to act as servicer of commercial
mortgage loans.
(d) In addition, CRIIMI MAE Services Limited Partnership, as a
condition to the consummation of the transaction contemplated herein, hereby
represents and warrants to the Trustee and the Depositor that as of the
Delivery Date, (i) it is a limited partnership duly organized and existing
and in good standing under the laws of the State of Maryland and (ii) it has
been approved by Standard & Poor's Ratings Group and Fitch IBCA, Inc. to the
extent required to be approved thereby, to act as special servicer of
commercial mortgage loans.
(e) 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.
(f) 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(e) 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, at the direction of the Depositor, 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 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 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 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, 1999, 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, 1999, 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 the Uniform Single Attestation Program for Mortgage
Bankers, 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
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surviving Person shall be an entity whose business includes the servicing of
mortgage loans, shall service multifamily and/or commercial mortgage loans,
as applicable, in accordance with Accepted Servicing Practices or Accepted
Special Servicing Practices, as applicable, and shall satisfy the
requirements of Section 3.10 hereof with respect to the qualifications of a
successor to a Servicer.
SECTION 3.05 Limitation on Liability of the Servicers and Others.
Neither the Servicers nor any of the directors, officers, employees
or agents thereof 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
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Servicer or agents of such Servicer against any liability resulting from any
breach of any representation or warranty made herein, or from any liability
specifically imposed on such Servicer herein; and provided, further, that
this provision shall not protect any Servicer or agents of such Servicer
against any liability that would otherwise be imposed by reason of the
willful misfeasance, bad faith or negligence in the performance of duties or
by reason of reckless disregard of the obligations or duties hereunder. Each
Servicer and any director, officer, employee or agent thereof may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any other Servicer, the Depositor, the Trustee or the Custodian
respecting any matters arising hereunder. No Servicer shall be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Mortgage Loans in accordance with
this Agreement; provided, however, that any Servicer may undertake any such
action that it may deem necessary or desirable in respect to this Agreement
and any Mortgage Loan and the rights and duties of the parties hereto or the
interest of the Certificateholders. In such event, the reasonable legal
expenses and costs of such action and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust Fund, and such Servicer shall
be entitled to be reimbursed therefor from the Trust Fund upon written
demand.
SECTION 3.06 Resignation of Servicers.
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
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'swillful 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
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 shall be entitled to all the same
compensation as to which such Servicer may be entitled hereunder, and may
make such arrangements for the compensation of such successor therefrom as it
and such successor shall agree; provided, however, that the fees of the
successor Servicer with respect to the Mortgage Loans shall not be higher
than the fees of the predecessor Servicer. In the event that any Servicer's
duties and responsibilities under this Agreement are terminated pursuant to
the aforementioned Sections, such Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of
such termination until the effective date thereof (if such dates are not the
same) with the same degree of diligence and prudence that it is obligated to
exercise under this Agreement, and shall take no action whatsoever that might
impair or prejudice the rights or financial condition of its successor, any
other Servicer or the Trustee. The termination of a Servicer's
responsibilities and duties under this Agreement pursuant to the
aforementioned Sections shall not become effective until a successor shall be
appointed pursuant to this Section 3.10 (or until the Trustee 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 or any Servicer may have against the
Trustee or another Servicer, in any case arising prior to any such
termination or resignation.
(c) Upon its termination or resignation, the terminated or
resigning Servicer shall immediately deliver to the successor the funds in
any account maintained by such Servicer pursuant to this Agreement (net of
all unpaid Servicing Fees payable to it, unreimbursed Advances advanced by it
and interest on such Advances at the Advance Rate), any Mortgage Loan
Documents in such Servicer's possession and related documents and statements
held by it hereunder and such Servicer shall account for all funds. Such
Servicer shall execute and deliver such instruments and do all such other
things as may reasonably be required to more fully and definitely vest and
confirm in the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of such Servicer. The successor shall promptly
make arrangements to reimburse such Servicer for amounts such Servicer
actually expended, unreimbursed Advances and amounts owed to such Servicer in
respect of unpaid Servicing Fees pursuant to this Agreement that would
otherwise have been recovered by such Servicer pursuant to this Agreement but
for the appointment of the successor servicer, net of any amounts owed by
such Servicer hereunder.
(d) Notwithstanding anything contained herein, a successor
Servicer shall be an established housing and home finance institution or
mortgage servicing institution reasonably satisfactory to the Trustee (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 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 and
Class NR Certificates and the Class X Components shall be designated as the
"regular interests" and the Class R-III Certificates shall be designated as
the sole class of "residual interest" in REMIC III. To the extent the
affairs of the Trust Fund are within their control, the Master Servicer and
the Trustee shall not permit the creation of any "interests" (within the
meaning of Section 860G of the Code) in REMIC I, REMIC II or REMIC III other
than the REMIC I Uncertificated Interests, the REMIC II Uncertificated
Interests and the Certificates.
(b) The Delivery Date is hereby designated as the "Startup Day" of
the REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the Class R-I Certificate is hereby designated,
and by the acceptance of the Class R-I Certificate agrees to act, as Tax
Matters Person for REMIC I. The Holder of the Class R-II Certificate is
hereby designated, and by the acceptance of the Class R-II Certificate agrees
to act, as Tax Matters Person for REMIC II. The Holder of the R-III
Certificate is hereby designated, and by acceptance of the Class R-III
Certificate, agrees to act, as Tax Matters Person for REMIC III.
(d) The Tax Matters Person hereby irrevocably authorizes the
Trustee to be its attorney-in-fact for purposes of signing all Tax Returns.
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 ordinary 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 January 2030, 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. 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
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 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, 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 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.
SECTION 3.16 Additional Servicing Restrictions.
(a) No Servicer shall approve a transfer of any membership
interest in the Borrower for the Mortgage Loan identified as loan number 4 on
the Mortgage Loan Schedule resulting in the transfer of in excess of 49% of
the membership interest in such Borrower unless the Servicer shall have
obtained written confirmation from Standard and Poor's stating that upon such
transfer 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.
(b) No Servicer shall approve the incurrence by the Borrower for
the Mortgage Loans identified as loan numbers 3, 4 and 7 on the Mortgage Loan
Schedule of additional indebtedness in excess of 4% of the outstanding
principal balance of the related Mortgage Loan unless the Servicer shall have
obtained written confirmation from Standard and Poor's stating that upon such
incurrance 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.
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 Master 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 collection
procedures in accordance with Accepted Servicing Practices, 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.
(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, 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 and (4)
Escrow Payments.
(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 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 re-
coveries of payments with respect to which such P&I
Advances were made;
(iv) to the extent not reimbursed from amounts on deposit in the
Escrow Account pursuant to Section 4.06(c)(v) hereof or the
REO Account pursuant to Section 6.10 hereof, to reimburse the
Trustee, itself and the Special Servicer, in that order,
pursuant to Sections 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 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 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 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., Boston 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. If the Special Servicer fails to make
the required Advance pursuant to Section 6.10, then the Master Servicer shall
be required to make such Advance pursuant to Section 7.04.
(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 Trustee, itself and the Special Servicer, in that order, on
each Business Day.
(c) The Trustee, the Master Servicer and the Special Servicer
shall be entitled to interest on any Advance made thereby 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, 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) If the Master Servicer recommends entering into any assumption
or substitution of liability agreement pursuant to Section 4.08(a) or (b), it
shall notify the Special Servicer of such recommendation and shall provide to
the Special Servicer a copy of the materials upon which such recommendation
is based. The Special Servicer shall have the right hereunder to grant or
withhold consent to any such agreement in accordance with the terms of the
related Mortgage Loan Documents and this Agreement. Prior to entering into
any such assumption agreement, if the new mortgage loan will be greater than
(a) $20,000,000 or (b) 5% of the current outstanding Certificate Balance,
then the Master Servicer shall obtain written confirmation from each Rating
Agency stating that 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.
(d) The Master Servicer shall retain 50% of any fee collected for
entering into an assumption or substitution of liability agreement. The
Special Servicer shall be entitled to the remainder of any such fee
collected.
(e) 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 and Special Servicer a copy of such substitution or assumption
agreement.
(f) 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.
(g) The Master Servicer shall notify each Rating Agency if it
shall have actual knowledge that such assumption results in any Mortgagor, or
any affiliate or principal thereof, representing ownership interest in more
than 5% of the Mortgagors by outstanding principal balance of the Mortgage
Loans.
SECTION 4.09 Review of Property Inspections, Operating Statements,
Rent Rolls and Financial Statements.
(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
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Loan 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. A copy of each Property
Inspection Report prepared by the Master Servicer shall be delivered to the
Special Servicer promptly, but in any event within 30 days.
(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.
(c) The Master Servicer shall forward copies of each quarterly or
annual financial statement or report received by it from a Mortgagor to the
Special Servicer promptly, but in any event within 30 days.
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, 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)
1:00 p.m. Boston time on 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 related 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 Master
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 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 the determination set forth in clause (ii) above, 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 (which shall be an expense of the
Trust) 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 Accepted Special Servicing Practices, 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, 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, Realized Loss or Collateral
Value Adjustment Recovery Amount resulting from a Collateral Value Adjustment
Event or Liquidation Event, 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, a 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 by the
Person requesting such report.
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 Master
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 net 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 net 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 net 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 (i) one-twelfth of 0.0125%
per annum of the Scheduled Principal Balance of each Mortgage Loan and (ii)
one-twelfth of 0.25% per annum of the then current outstanding balance of any
Specially Serviced Mortgage Loan.
SECTION 6.14 Limitations on the Special Servicer with Respect to ARD
Loans.
With respect to all ARD Loans, the Special Servicer shall not take
any enforcement action with respect to the payment of Excess Interest or
principal in excess of the principal component of the constant Monthly
Payment, other than requests for collection, until the maturity date of the
related Mortgage Loan. If any action is taken after the maturity date of the
related Mortgage Loan, any recoveries shall be applied as set forth herein.
If the related Mortgagor elects not to prepay its ARD Loan in full on or
prior to the Anticipated Repayment Date (1) the Mortgage Loan's interest rate
will step up to an interest rate equal to no more than 2% above the related
Mortgage Interest Rate; provided, however, that payment of such Excess
Interest shall be deferred until the principal of such ARD Loan has been paid
in full; (2) all or a substantial portion of the Excess Cash Flow collected
after the Anticipated Repayment Date shall be applied towards the prepayment
of such ARD Loan and once the principal balance of an ARD Loan has been
reduced to zero all Excess Cash Flow will be applied to the payment of
certain costs associated with owning, managing and operating the related
Mortgaged Property and accrued Excess Interest; and (3) if the property
manager for the related Mortgaged Property can be removed by or at the
direction of the mortgagee on the basis of a debt service coverage test,
the subject debt service coverage ratio shall be calculated without taking
account of any increase in the related Mortgage Interest Rate on such
Mortgage Loan's Anticipated Repayment Date.
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, as
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 each Class of
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 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 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 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 over or continue to hold any amounts so
held by the Trustee in accordance with applicable escheatment law.
SECTION 7.03 Statements to Certificateholders.
(a) On each Distribution Date, the Trustee shall forward to each
Holder, MGT 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 the 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 received by the
Trustee for any Specially Serviced Mortgage Loan or REO Property. In
addition, upon receipt of a written request of any Certificateholder (or any
Certificate Owner, if applicable, which shall have provided the Trustee with
evidence satisfactory to the Master Servicer and the Trustee of its interest
in a certificate pursuant to Section 11.04) for a copy of any other report,
the Trustee shall forward such written request to the Master Servicer. To
the extent such report is available to the Master Servicer, the Master
Servicer shall deliver a copy thereof to the Trustee for delivery to the
requesting Certificateholder (or Certificate Owner) at the address specified
in such request. The request, reproduction and delivery of such report,
shall be at the expense of the requesting Certificateholder (or Certificate
Owner).
(b) The Trustee covenants to furnish or cause to be furnished,
promptly upon the written request of any Holder of a Class F, Class G, Class
H, Class NR, Class R-I, Class R-II or Class R-III Certificate (or a
Certificate Owner which shall have certified to the Trustee that it is a
Certificate Owner of any such Class) reasonably current Rule 144A Information
(as defined below) to such Certificateholder or to a prospective transferee
of such a Certificate (or interests in such Certificate) designated by such
Certificateholder, as the case may be, in connection with the resale of such
Certificate or such interests by such Certificateholder pursuant to Rule 144A
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. The
Trustee shall have no responsibility for the sufficiency under Rule 144A or
any other securities laws of any available information so furnished to any
person including any prospective purchaser of a Certificate or any interest
therein, nor for the content or accuracy of any information so furnished
which was prepared or delivered to the Trustee by another to the extent the
information so furnished accurately sets forth the information prepared or
delivered.
(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 provide to any Person requesting a copy of
the reports delivered to Certificateholders pursuant to the first paragraph
of clause (a) above, a copy of such reports. The Trustee shall be entitled
to charge such Person a nominal fee to cover the cost of such mailing.
(e) The Trustee is hereby authorized to furnish, to
Certificateholders and/or to the public any other information (such other
information, collectively, "Additional Information") with respect to the
Mortgage Loans, any Mortgaged Property or the Trust Fund as may be provided
to it by the Depositor, the Master Servicer or Special Servicer or gathered
by it in any investigation or other manner from time to time, provided that
(A) any such Additional Information shall only be furnished with the consent
or at the request of the Depositor, (B) the Trustee shall be entitled to
indicate the source of all information furnished by it and the Trustee may
affix thereto any disclaimer it deems appropriate in its sole discretion
(including any warnings as to the confidential nature and/or the uses of such
information as it may, in its sole discretion, determine appropriate), (C)
the Trustee shall be entitled (but not obligated) to require payment from
each recipient of a reasonable fee for, and its out-of-pocket expenses
incurred in connection with, the collection assembly, reproduction or
delivery of any such Additional Information and (D) the Trustee shall be
entitled to distribute or make available such information in accordance with
such reasonable rules and procedures as it may deem necessary or appropriate
(which may include the requirement that an agreement that provides such
information shall be used solely for purposes of evaluating the investment
characteristics or valuation of the Certificates be executed by the
recipient, if and to the extent the Trustee deems the same to be necessary or
appropriate. Nothing herein shall be construed to impose upon the Trustee
any obligation or duty to furnish or distribute any Additional Information to
any Person in any instance, and the Trustee shall neither have any liability
for furnishing nor for refraining from furnishing Additional Information in
any instance. The Trustee shall be entitled (but not required) to require
that any consent, direction or request given to it pursuant to this clause
(e) be made in writing.
(f) Subject to availability, the Trustee shall, verbally over the
telephone, provide the Pool Factor, for the immediately succeeding
Distribution Date, to each Certificateholder and (subject to Section 7.03(a))
each Certificate Owner requesting such factor. Such request shall be made no
more than two Business Days preceding such Distribution Date by calling the
Trustee at (617) 664-5433.
The Trustee will make available the monthly statement to
Certificateholders prepared pursuant to the first paragraph of Section
7.03(a) and all associated reporting information via its Corporate Trust home
page on the world wide web and/or via facsimile through its Street Fax
automated fax-back system.
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, with a copy to the Special Servicer,
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 (including any P&I
Advance required to be made by the Special Servicer pursuant to Section
6.10), it shall give notice to the Trustee of its inability to advance (such
notice may be given by telecopy), not later than 3:00 P.M., Boston time, on
such Business Day, specifying the portion of such amount that it will be
unable to deposit. Unless the Master Servicer shall have directly or
indirectly deposited in the Certificate Account by 11:00 A.M. on the related
Distribution Date, such portion of the amount of such Advance as to which the
Master Servicer shall have given notice pursuant to the preceding sentence,
the Trustee shall: (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) make such required Advance (subject to
its own determination of nonrecoverability) not later than noon, Boston time,
on such Distribution Date.
The Trustee shall deposit all funds it receives pursuant to this
Section 7.04 into the Certificate Account.
SECTION 7.05 Allocations of Realized Losses and Collateral Value
Adjustments.
At least four Business Days prior to each Distribution Date, the
Master Servicer shall determine and communicate to the Trustee the total
amount of Realized Losses and Collateral Value Adjustment, if any, that
resulted during the related Collection Period. As soon as practicable
following the occurrence of a Collateral Value Adjustment Event with respect
to any Mortgage Loan, the Master Servicer shall make a Collateral Value
Adjustment determination with respect to such Mortgage Loan. The amount of
each Realized Loss or Collateral Value Adjustment shall be evidenced by an
Officers' Certificate. All Realized Losses shall be allocated by the Trustee
as follows in reduction of the related Class Balance: first, to the Class NR
Certificates until the Class Balance thereof has been reduced to zero;
second, to the Class 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.
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 and Class NR
Certificates will be issuable only in minimum denominations (based on their
respective Original Class Balances or Notional Amount) 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 and Class NR Certificates shall
initially be issued as one or more Certificates registered in the name of the
Depository or its nominee and, except as provided below, registration of such
Certificates may not be transferred by the Trustee except to another
Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate Owners
shall hold their respective Ownership Interests in and to each of the
referenced herein Certificates (except for such remainders) through the book-
entry facilities of the Depository and, except as provided below, shall not
be entitled to Definitive Certificates in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant shall
transfer the Ownership Interests only in the Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures. Neither the
Trustee nor the Certificate Registrar shall have a duty to monitor the
transfer of Ownership Interests in any Book-Entry Certificate.
The Trustee, the Master Servicer and the Depositor may for all
purposes (including the making of payments due on the respective Classes of
Book-Entry Certificates (and, if necessary, the selection of the Directing
Certificateholder)) deal with the Depository as the authorized representative
of the Certificate Owners with respect to the respective Classes of Book-
Entry Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect
to the respective Classes of Book-Entry Certificates shall be limited to
those established by law and agreements between such Certificate Owners and
the Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository
as Holder of any Class of Book-Entry Certificates with respect to any
particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a
reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If (i)(A) the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Depositor is unable to locate a
qualified successor or (ii) the Depositor at its option advises the Trustee
in writing that it elects to terminate the book-entry system through the
Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners representing the same. In
addition, upon request, the Trustee will issue Definitive Certificates in
exchange for Ownership Interests in like Certificate Balances of the Book-
Entry Certificates for the Class F, Class G, Class H or Class NR Certificates
in connection with a transfer permitted pursuant to Section 8.02(b)(ii).
Upon surrender to the Trustee of the Book-Entry Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Trustee shall issue the Definitive
Certificates. Neither the Depositor, the Master Servicer nor the Trustee
shall be liable for any actions taken by the Depository or its nominee,
including, without limitation, any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Depositor in
connection with the issuance of the Definitive Certificates pursuant to this
Section 8.01 shall be deemed to be imposed upon and performed by the Trustee,
and the Trustee and the Master Servicer shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder.
SECTION 8.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register
in which, subject to such reasonable regulations as the Certificate Registrar
may prescribe, the Certificate Registrar shall provide for the registration
of Certificates and of transfers and exchanges of Certificates as herein
provided. The Trustee is hereby initially appointed (and hereby agrees to
act) as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Certificate
Registrar may appoint, by a written instrument delivered to the Trustee, any
other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided
that the predecessor Certificate Registrar shall not be relieved of any of
its duties or responsibilities hereunder by reason of such appointment. The
Master Servicer shall have the right to inspect the Certificate Register or
to obtain a copy thereof at all reasonable times, and to rely conclusively
upon a certificate of the Certificate Registrar as to the information set
forth in the Certificate Register.
(b) No transfer of any Class F, Class G, Class H, Class NR, Class
R-I, Class R-II and Class R-III Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and effective
registration or qualification under applicable state securities laws, or is
made in a transaction which does not require such registration or
qualification. If such a transfer is to be made without registration or
qualification and is to be made in connection with the issuance or transfer
of a Definitive Certificate, then the Certificate Registrar shall require, in
order to assure compliance with such laws, receipt of: (i) if such transfer
is purportedly being made in reliance upon Rule 144A under the 1933 Act, a
certificate from the prospective transferee substantially in the form
attached as Exhibit D-1 hereto, (ii) if such transfer is purportedly being
made in reliance upon Regulation S under the 1933 Act, a certificate from the
prospective transferee substantially in the form attached as Exhibit D-2
hereto, (iii) if such transfer is purportedly being made in reliance upon
Rule 144 under the 1933 Act, a certificate from the prospective transferee
substantially in the form attached as Exhibit D-3 hereto, and (iv) in all
other cases, (A) except where the Depositor or an Affiliate thereof is the
transferor or transferee, an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
such registration or qualification (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar in their respective capacities as such),
(B) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit C hereto and (C) a certificate
from such Certificateholder's prospective transferee substantially in the
form attached as Exhibit E hereto. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class F, Class
G, Class H, Class NR, Class R-I, Class R-II and Class R-III Certificates
under the 1933 Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any Class
F, Class G, Class H, Class NR, Class R-I, Class R-II and Class R-III
Certificate without registration or qualification. Any Class F, Class G,
Class H, Class NR, Class R-I, Class R-II or Class R-III Certificateholder
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Trustee, the Certificate Registrar and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
(c) None of the Certificates except for the Class A1, Class A2,
Class A3 or Class X Certificates 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, 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
facie, is properly executed and submitted by any Person
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respecting any matters arising hereunder. The Depositor shall not be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and in its
opinion does not involve it in any expense or liability.
ARTICLE X
DEFAULT
SECTION 10.01 Events of Default.
"Event of Default", wherever used herein, means with respect to any
Servicer any one of the following events:
(i) with respect to the Master Servicer, failure to advance or
remit when due to the Trustee for deposit into the Certificate
Account any amount required to be advanced or remitted under
the terms of this Agreement; with respect to the Special
Servicer, failure to advance or remit to the 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) either 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
662/3% of the Voting Rights so request in writing to the Trustee, promptly
appoint a successor pursuant to Section 3.10. Pending appointment of a
successor to the Master Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided.
SECTION 10.03 Notification to Certificateholders.
(a) Upon any such termination pursuant to Section 10.01 above, any
appointment of a successor to the Master Servicer pursuant to Section 10.02,
or any appointment of a Replacement Special Servicer pursuant to Section
6.16, 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 has 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
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.
(d) Within 30 days after the Delivery Date, the Depositor shall deliver
to the Trustee and within 90 days after the Delivery Date, the Trustee, shall
sign and mail to each borrower in respect of an ARD Loan notice in writing to
the effect that the Trust Fund waives any and all rights to receive Excess
Interest at an Excess Rate exceeding 200 basis points (and all interest on
such Excess Interest). The Trustee may not waive any right to receive Excess
Interest in respect of any ARD Loan if the related borrower has not been so
advised within the first 90 days after the Delivery Date unless the Trustee
is provided with an Opinion of Counsel to the effect that such waiver would
not constitute an "exchange" under Section 1001 of the Code, which Opinion of
Counsel shall not be an expense of the Trust. Each such borrower shall be an
intended third-party beneficiary of the provisions of this paragraph.
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. To
the extent there is only one Monitoring Certificateholder and it is also the
Special Servicer, it shall be the Directing Certificateholder.
(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 1.50% 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 1.50% 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 May Own Certificates.
The Trustee, in its individual or any other capacity, may become
the owner or pledgee of Certificates with the same rights it would have if it
were not Trustee.
SECTION 11.08 Fees and Expenses of Trustee; Indemnification of Trustee.
(a) The Trustee shall be entitled to pay itself as reasonable
compensation from amounts remitted 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 (the "Trustee Fee Rate").
(b) The Trustee and any director, officer, employee or agent of
the Trustee 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 IBCA, Inc., by
Standard & Poor's Ratings Group) at least equal to the rating one category
below the highest rating assigned by such Rating Agency to the then
outstanding Certificates, but in no event lower than an "investment grade"
rating by such Rating Agency, so as not to cause a downgrade, qualification
or withdrawal of the then current ratings on the Certificates, as confirmed
in writing by such Rating Agencies. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 11.10. The corporation or association serving as Trustee may have
normal banking and trust relationships with the Depositor and its Affiliates,
the Master Servicer and its Affiliates or the Special Servicer and its
Affiliates.
SECTION 11.10 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders. Upon
receiving such notice of resignation, the Master Servicer shall promptly
appoint a successor trustee acceptable to the Depositor by written
instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument
shall be delivered to the Certificateholders, the Depositor and the Special
Servicer by the Master Servicer. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.09 and shall fail to resign
after written request therefor by the Depositor or the Master Servicer, or if
at any time the Trustee shall become incapable of acting, or shall be
adjudged bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Master Servicer may
remove the Trustee and appoint a successor trustee acceptable to the
Depositor by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A copy of
such instrument shall be delivered to the Certificateholders, the Depositor
and the Special Servicer by the Master Servicer.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to
the Trustee so removed and one complete set to the successor so appointed. A
copy of such instrument shall be delivered to the remaining
Certificateholders and the Special Servicer by the Master Servicer.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 11.11.
SECTION 11.11 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 11.10
shall execute, acknowledge and deliver to the Master Servicer and to its
predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The predecessor trustee shall deliver to
the successor trustee all Mortgage Loan Files and related documents and
statements held by it hereunder (other than any Mortgage Loan Files at the
time held by a Custodian, which shall become the agent of any successor
trustee hereunder), and the Master Servicer and the predecessor trustee shall
execute and deliver such instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations, and to
enable the successor trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 11.09.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section, the successor Trustee shall mail notice of the
succession of such Trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register.
SECTION 11.12 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or
with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such entity shall be
eligible (including the receipt of Rating Agency confirmations) under the
provisions of Section 11.09 or 11.11, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 11.13 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing the same may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any
part of the Trust Fund, and to vest in such Person or Persons, in such
capacity, such title to the Trust Fund, or any part thereof, and, subject to
the other provisions of this Section 11.13, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider
necessary or desirable. If the Master Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request to do so, or
in case an Event of Default shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 11.09 hereunder and no
notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 11.11 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 11.13 all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as Trustee hereunder or as successor to the Master Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article XI. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 11.13 shall not relieve the Trustee of its duties and
responsibilities hereunder.
SECTION 11.14 Appointment of Custodians.
(a) The Trustee may, with the consent of the Master Servicer,
appoint one or more Custodians to hold all or a portion of the Mortgage Loan
Files as agent for the Trustee. Subject to the other provisions of this
Article XI, the Trustee agrees to enforce the terms and provisions of
Sections 2.01 and 2.02 hereof against the Custodian for the benefit of the
Certificateholders. Each Custodian shall be a depository institution subject
to supervision by federal or state authority, shall have combined capital and
surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage Loan File and shall not be the
Depositor, the Person who originated or sold to the Depositor 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 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 Massachusetts trust company duly organized,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this
Agreement by the Trustee, will not violate the Trustee's
charter or bylaws or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which
is applicable to it or any of its assets; 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 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.
SECTION 11.17 Massachusetts Filings.
The Trustee shall make any filings required under Massachusetts
General Laws, Chapter 182, Sections 2 and 12, the costs of which, if any,
shall be reimbursed to its pursuant to Section 11.08.
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 any holder of a
Class R-I Certificate, the holders of an aggregate Percentage Interest in
excess of 50% of the Most Subordinate Class of Certificates, the Master
Servicer and (to the extent all of the remaining Mortgage Loans are being
serviced by the Special Servicer) the Special Servicer (in that order) 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 and (ii) the final
payment or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund; provided, however, that in no
event shall the trust created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the Court of St. James,
living on the date hereof.
Any Person which shall make an election to purchase all of the
Mortgage Loans remaining in the Trust Fund pursuant to clause (i) of the
preceding paragraph shall do so by giving written notice to the Trustee and
the Depositor no later than 60 days prior to the anticipated date of
purchase; provided, however, that no such election to purchase all of the
Mortgage Loans remaining in the Trust Fund pursuant to clause (i) above shall
be made unless the aggregate Stated Principal Balance of the Mortgage Loans
remaining in the Trust Fund at the time of such election is less than 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 the
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 Dover House Capital, LLC, as master servicer, Dover
House Capital, LLC, 400 Perimeter Terrace, Suite 575, Atlanta, Georgia 30346,
Attention: Teresa Klein, telephone number: 770-351-8370, telecopy number:
770-351-8398; (iii) in the case of CRIIMI MAE Services Limited Partnership,
as special servicer, CRIIMI MAE Services Limited Partnership, 11200 Rockville
Pike, Rockville, MD 20852, Attention: Brian Hanson, telephone number: (301)
468-3151, telecopy number: (301) 468-3142; (iv) in the case of the Trustee,
State Street Bank and Trust Company, Two International Place, Boston,
Massachusetts 02110, Attention: Corporate Trust Department, J.P. Morgan
Financial Mortgage Finance Corp., Series 1998-C6, telephone number: (617)
664-5473, telecopy number: (617) 664-5167; and (v) in the case of the Rating
Agencies, (A) Fitch IBCA, Inc., One State Street Plaza, New York, New York
10004, Attention: Commercial Mortgage-Backed Securities Group, telephone
number: 212-908-0537, telecopy number: 212-635-0295 and (B) Standard &
Poor's Ratings Group, 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 written 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/ Larry Blume
---------------
Name: Larry Blume
-----------
Title: Vice President
--------------
DOVER HOUSE CAPITAL, LLC,
Master Servicer
By: /s/ Teresa A. Klein
-------------------
Name: Teresa A. Klein
---------------
Title: Senior Vice President
---------------------
CRIIMI MAE SERVICES Limited Partnership,
Special Servicer
by CRIIMI MAE Services Inc.,
its general partner
By: /s/ Frederick J. Burchill
-------------------------
Name: Frederick J. Burchill
---------------------
Title: Executive Vice President
------------------------
STATE STREET BANK AND
TRUST COMPANY,
Trustee
By: /s/ William G. Swan
-------------------
Name: William G. Swan
---------------
Title: Vice President
--------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of March, 1998 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 GEORGIA )
) ss.:
COUNTY OF DEKLAB )
On the 10th day of March, 1998 before me, a notary public in and
for said State, personally appeared Teresa Klein known to me to be a Senior
Vice President of Dover House Capital, LLC, the limited liability company
that executed the within instrument, and also known to me to be the person
who executed it on behalf of said limited liability company, and acknowledged
to me that such limited liability company 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/ Chris Antaya
----------------
Notary Public
(Notarial Seal)
STATE OF MARYLAND )
) ss.:
COUNTY OF MONTGOMERY )
On the 10th day of March, 1998 before me, a notary public in and
for said State, personally appeared Frederick J. Burchill known to me to be
an Executive Vice President of CRIIMI MAE Services Inc., general partner of
CRIIMI MAE Limited Partnership, 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 liability company, and acknowledged to me that such
limited liability company 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/ Julia Briggs White
----------------------
Notary Public
(Notarial Seal)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of March, 1998, before me, a notary public in and
for said State, personally appeared William G. Swan known to me to be a Vice
President of State Street Bank and Trust Company, the Massachusetts trust
company that executed the within instrument, and also known to me to be the
person who executed it on behalf of said Massachusetts trust company, and
acknowledged to me that such Massachusetts trust company 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)
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, AS AMENDED (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, AS AMENDED (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, AS AMENDED (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 1998-C6
(Original Class
Balance / Initial Aggregate
Notional Amount): $__________
Date of Pooling and Servicing (Initial Certificate
Agreement: March 1, 1998 Balance / Initial Notional Amount)
of this Class ( )
Certificate as of the
Delivery Date: $________
Cut-off Date: March 1, 1998
Delivery Date: _______________ Percentage Interest: ____%
First Distribution Date: April 15, 1998 Pass-Through Rate: ____%
Master Servicer: Dover House Capital, LLC Trustee: State Street Bank and
Trust Company
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 March 1, 1998 (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), Dover House Capital, LLC, as master
servicer (the "Master Servicer", which term includes any successor entity
under the Agreement), CRIIMI MAE Services Limited Partnership, as special
servicer (the "Special Servicer", which term includes any successor entity
under the Agreement), and State Street Bank and Trust Company, as trustee
(the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 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, and (ii) the final payment or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund; provided, however, that in no event shall the trust created
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 and the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof 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: _______________
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class ( ) Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND TRUST
COMPANY, as Certificate Registrar
By:
-------------------------
Authorized Signatory
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 1998-C6, 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 March 1, 1998, among J.P.
Morgan Commercial Mortgage Finance Corp., as depositor, Dover House Capital,
LLC, as master servicer, CRIIMI MAE Services Limited Partnership, as special
servicer, and State Street Bank and Trust Company, as trustee. All
capitalized 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, as amended (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.,
as Initial Purchaser
in connection with the
Private Placement Memorandum
referred to below
60 Wall Street
New York, New York 10260
(Trustee Name and Address)
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 1998-C6, Class F, Class G, Class H, Class NR, Class R-I,
Class R-II and Class R-III (the "Certificates") of J.P. Morgan Commercial
Mortgage Finance Corp. (the "Depositor"), we confirm that:
1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated March 10, 1998, 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
March 1, 1998 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.
as Initial Purchaser
in connection with the
Private Placement Memorandum
referred to below
60 Wall Street
New York, New York 10260
(Trustee Name and Address)
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 1998-C6, Class F, Class G, Class H, Class NR, Class R-I,
Class R-II and Class R-III (the "Certificates") of J.P. Morgan Commercial
Mortgage Finance Corp. (the "Depositor"), we confirm that:
1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated March 10, 1998, 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
March 1, 1998 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.
as Initial Purchaser
in connection with the
Private Placement Memorandum
referred to below
60 Wall Street
New York, New York 10260
(Trustee Name and Address)
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 1998-C6, Class F, Class G, Class H, Class NR, Class R-I,
Class R-II and Class R-III (the "Certificates") of J.P. Morgan Commercial
Mortgage Finance Corp. (the "Depositor"), we confirm that:
1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated March 10, 1998, 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
March 1, 1998 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 144A 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.
as Initial Purchaser
in connection with the
Private Placement Memorandum
referred to below
60 Wall Street
New York, New York 10260
(Trustee Name and Address)
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 1998-C6, Class F, Class G, Class H, Class NR, Class R-I,
Class R-II and Class R-III (the "Certificates") of J.P. Morgan Commercial
Mortgage Finance Corp. (the "Depositor"), we confirm that:
1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated March 10, 1998, 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
March 1, 1998 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 1998-C6, 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
1998-C6, 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
EXHIBIT H
(RESERVED)
EXHIBIT I
FORM OF LOAN SALE AGREEMENT
DRAFT 3/06/98
J.P. MORGAN COMMERCIAL MORTGAGE FINANCE CORP.,
PURCHASER,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
SELLER
LOAN SALE AGREEMENT
Dated as of March 1, 1998
$_______________
Fixed Rate Mortgage Loans
Series 1998-C6
This Loan Sale Agreement (the "Agreement"), dated as of March 1,
---------
1998, 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 March 1, 1998 (the "Pooling and Servicing Agreement") among
-------------------------------
the Purchaser, as depositor, Dover House Capital, LLC, as master servicer,
CRIIMI MAE Services Limited Partnership, as special servicer, and State
Street Bank and Trust Company as trustee ("Trustee"), 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. 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 13. Sale and Conveyance of Mortgages; Possession of Mortgage
--------------------------------------------------------
Loan 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 Loan 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 Loan 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 Loan 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 14. 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 15. 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:
(1) 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;
(2) 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;
(3) 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;
(4) 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: "State Street Bank and Trust Company,
as trustee for J.P. Morgan Commercial Mortgage Finance Corp.
Mortgage Pass-Through Certificates Series 1998-C6", in
recordable form;
(5) 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: "State Street Bank and Trust
Company, as trustee for J.P. Morgan Commercial Mortgage
Finance Corp. Mortgage Pass-Through Certificates Series 1998-
C6";
(6) 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;
(7) 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;
(8) with respect to any Mortgage Loan secured by a leasehold
interest, a certified copy of the related ground lease;
(9) 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;
(10) 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;
(11) the original appraisal; and
(12) any escrow, guarantee and environmental liability agreement.
SECTION 16. 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 17. 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 18. 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:
i. it has the power and authority to own its property and to carry
on its business as now conducted;
ii. it has the power to execute, deliver and perform this
Agreement;
iii. the execution, delivery and performance of this Agreement
have been duly authorized by all requisite action by such corporation's
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
iv. this Agreement constitutes a legal, valid and binding
obligation of such party enforceable in accordance with its terms.
v. 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, subject
to any exceptions thereto set forth in Exhibit C hereto. 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 19. Expenses. The Seller will pay all costs and expenses
--------
of the Purchaser and the Underwriter 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 Underwriter; (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 Underwriter of such copies of the Registration
Statement, Prospectus and this Agreement as the Underwriter may reasonably
request; and (ix) the fees of the rating agency or agencies requested to rate
the Certificates.
SECTION 20. 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 21. 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 22. No Third-Party Beneficiaries. The parties do not intend
----------------------------
the benefits of this Agreement to inure to any third party except as
expressly set forth in Section 11.
SECTION 23. 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 24. 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 25. 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 26. 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, 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 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; all collateral
securing a Mortgage Note is being transferred as part of the related Mortgage
Loan and 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 fee simple or leasehold title 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 the
----- ----------------
portion of each Mortgaged Property comprised of 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
comprised of 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 leases and of rents 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
related assignment of leases and rents 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 provide
that such Mortgage Loan is non-recourse to the related parties thereto except
for certain acts including the fraud, willful misconduct or material
misrepresentation by the related Mortgagor and/or its affiliates and any act
resulting in the Mortgaged Property becoming an asset in a voluntary
bankruptcy or insolvency proceeding. Additionally, the Mortgage Loan
Documents for each Mortgage Loan provide that the related Mortgagor
thereunder shall be liable to the Seller for any losses incurred by Seller
due to (1) the misapplication or misappropriation of rents, insurance
proceeds or condemnation awards, (2) any act of waste, and (3) any breach of
the environmental covenants contained in the related Mortgage Loan Documents.
(B) 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 practical 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).
(C) 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.
(D) The terms of the Mortgage Loans or the related Mortgage Loan
Documents, have not been altered, impaired, modified or waived in any
material respect.
(E) 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 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 regarding the 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, have any of its agents or predecessors 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 except for those Mortgage Loans identified in the
Prospectus Supplement as ARD Loans which may have capitalized interest from
and after the Anticipated Repayment Date. No Mortgage Loan is an interest
only loan.
(C) Each Mortgage Loan identified in the Prospectus Supplement as an
ARD Loan substantially fully amortizes over its stated term, which term is at
least 60 months after the related Anticipated Repayment Date. Each ARD Loan
has an Anticipated Repayment Date not less than seven years following the
origination of such Mortgage Loan. If the related Mortgagor elects not to
prepay its ARD Loan in full on or prior to the Anticipated Repayment Date (1)
the Mortgage Loan's interest rate will step up to an interest rate equal to
no more than 2% above the related Mortgage Interest Rate; provided, however,
that payment of such Excess Interest shall be deferred until the principal of
such ARD Loan has been paid in full; (2) all or a substantial portion of the
Excess Cash Flow collected after the Anticipated Repayment Date shall be
applied towards the prepayment of such ARD Loan and once the principal
balance of an ARD Loan has been reduced to zero all Excess Cash Flow will be
applied to the payment of certain costs associated with owning, managing and
operating the related Mortgaged Property and accrued Excess Interest; and (3)
if the property manager for the related Mortgaged
--
Property can be removed by or at the direction of the mortgagee on the basis
of a debt service coverage test, the subject debt service coverage ratio
shall be calculated without taking account of any increase in the related
Mortgage Interest Rate on such Mortgage Loan's Anticipated Repayment Date.
No ARD Loan provides that the property manager for the related Mortgaged
Property can be removed by or at the direction of the mortgagee solely
because of the passage of the related Anticipated Repayment Date.
(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 in each case 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) Each of the three (3) Mortgage Loans, which collectively
represent approximately 4.24% of the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date, that are identified in the Prospectus
Supplement as being secured in whole or in part by a leasehold estate (a
"Ground Lease"), satisfy 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; 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 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 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 for
which adequate sums were not reserved in connection with the origination of
the Mortgage Loan, 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 and the Secretary of Housing and Urban Development with respect to
other Mortgage Loans, as having special flood hazards); (D) workers'
compensation, if required by law; (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 or except for nonpayment of premiums, in which case not less
than ten (10) days prior written notice to the mortgagee is required). 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. Any insurance proceeds in respect of a casualty
loss or taking will be applied either to the repair or restoration of all or
part of the related Mortgaged Property or the payment of the outstanding
principal balance of the related Mortgage Loan together with any accrued
interest thereon.
(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) (A) 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 March 4, 1998 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 (1) no Significant Lease or other
possessory interest not specified on such Rent Roll is in effect with respect
to the relevant Mortgaged Property, (2) the related Mortgagor is the owner
and holder of the landlord's interest under each Significant Lease, (3) all
Significant Leases relating to the relevant Mortgaged Property are in full
force and effect, (4) 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, (5) neither the Mortgagor nor any
lessee thereunder is in default in any material respect under a Significant
Lease; (6) 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 (7) there has
been no termination or expiration of any lease which would have a material
and adverse effect on the value of the related Mortgaged Property 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.
(B) With respect to leases affecting a Mortgaged Property, the Mortgage
Loan Documents provide for the appointment of a receiver for collection of
rents or allow the mortgagee to enter into possession for collection of rents
or provide for rents to be paid directly to the mortgagee in the event of a
default.
(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 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 Mortgagor 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.
(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
Purchaser.
(xxxii) Except with respect to the five (5) Mortgage Loans listed on
Exhibit D hereto, 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 Mortgaged 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) Each 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:
-------------
The term "Anticipated Repayment Date" shall mean the date on which
--------------------------
all or substantially all of any Excess Cash Flow is required to be applied
toward prepayment of the relevant Mortgage Loan and on which any such
Mortgage Loan begins accruing Excess Interest.
The term "ARD Loan" shall mean five of the Mortgage Loans
--------
representing approximately 30.30% of the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date, which Mortgage Loans are identified in
the Prospectus Supplement as the Kilroy Loan, the Skyline Loan, the 1065
Avenue of the Americas Loan, the Shannon Enterprises Loan and the Crystal
Plaza Loan.
The term "Excess Cash Flow" shall mean the cash flow from the
----------------
Mortgaged Property securing an ARD Loan after payments of interest (at the
Mortgage Interest Rate) and principal (based on the amortization schedule),
and (i) required payments for the tax and insurance fund and ground lease
escrows fund, (ii) payment of monthly debt service, (iii) payments to any
other required escrow funds, (iv) payment of operating expenses pursuant to
the terms of an annual budget approved by the Master Servicer or in an amount
which is capped at 1/12 of 105% of the prior year's operating expenses,
(v) principal on the Mortgage Loan until such principal is paid in full and
(vi) Excess Interest.
The term "Excess Interest" shall mean any accrued and deferred
---------------
interest on an ARD Loan in accordance with the following terms. Commencing
on the respective Anticipated Repayment Date each ARD Loan generally will
bear interest at a fixed rate (the "Revised Rate") per
------------
annum equal to the Mortgage Interest Rate plus a specified percentage (no
more than 2%, so long as the Mortgage Loan is included in the Trust Fund).
Until the principal balance of each such Mortgage Loan has been reduced to
zero, such Mortgage Loan will only be required to pay interest at the
Mortgage Interest Rate and the interest accrued at the excess of the related
Revised Rate over the related Mortgage Interest Rate will be deferred (such
accrued and deferred interest and interest thereon, if any, is "Excess
Interest").
---------------
The term "in reliance on" shall mean 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.
The term "Mortgage Interest Rate" shall mean the fixed rate of
----------------------
interest per annum that each Mortgage Loan bears as of the Cut-off Date.
The term "Permitted Encumbrances" shall mean:
----------------------
(1) the lien of current real property taxes, water charges, sewer
rents and assessments not yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of public record acceptable to mortgage
lending institutions generally; and
(3) other matters to which like properties are commonly subject,
which together do not materially and adversely affect the related Mortgagor's
ability to timely make payments on the related Mortgage Loan, which do not
materially interfere with the benefits of the security intended to be
provided by the related Mortgage or the use, for the use currently being
made, the operation as currently being operated, enjoyment, value or
marketability of such Mortgaged Property, provided,
--------
however, that, for the avoidance of doubt, Permitted Encumbrances shall
- -------
exclude all second, junior and subordinated mortgages.
The term "Significant Leases" shall mean with respect to any
------------------
Mortgaged Property as of the date set forth in Annex A to the Prospectus
Supplement under "Occupancy As of": (a) any lease relating to a tenant which
occupies 20% or more of the net rentable space of such Mortgaged Property,
(b) any lease relating to a tenant which is an anchor tenant, as such term is
customarily used, of such Mortgaged Property and (c) any lease which
generates 15% or more of the scheduled gross revenues of all leases relating
to such Mortgaged Property.
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.
EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES--IF ANY
(xi):
- ----
Loan No. 19, Embassy Suites Airport/Westshore -- the representation is
true and accurate except that the Mortgaged Property secures the Mortgage
Loan as well as a mortgage loan which is not a part of the Mortgage Pool.
(x)(A):
- -------
Loan No. 14, Parkridge Three -- the representation is true and accurate
except that an act resulting in the Mortgaged Property becoming an asset in a
voluntary bankruptcy or insolvency proceeding does not give rise to recourse
liability.
Loan No. 51, East Point Apartments -- the representation is true and
accurate except that an act resulting in the Mortgaged Property becoming an
asset in a voluntary bankruptcy or insolvency proceeding does not give rise
to recourse liability.
Loan No. 60, Tree House Apartments -- the representation is true and
accurate except that an act resulting in the Mortgaged Property becoming an
asset in a voluntary bankruptcy or insolvency proceeding does not give rise
to recourse liability.
Loan No. 67, Villa Maria Health Care Center -- the representation is
true and accurate except that an act resulting in the Mortgaged Property
becoming an asset in a voluntary bankruptcy or insolvency proceeding does not
give rise to recourse liability.
Loan No. 73, Fairways Apartments -- the representation is true and
accurate except that an act resulting in the Mortgaged Property becoming an
asset in a voluntary bankruptcy or insolvency proceeding does not give rise
to recourse liability.
Loan No. 75, Harbor Plaza Shopping Center -- the representation is true
and accurate except that an act resulting in the Mortgaged Property becoming
an asset in a voluntary bankruptcy or insolvency proceeding does not give
rise to recourse liability.
Loan No. 77, Parkway Centre -- the representation is true and accurate
except that an act resulting in the Mortgaged Property becoming an asset in a
voluntary bankruptcy or insolvency proceeding does not give rise to recourse
liability.
Loan No. 83, Watertown Rite-Aid -- the representation is true and
accurate except that an act resulting in the Mortgaged Property becoming an
asset in a voluntary bankruptcy or insolvency proceeding does not give rise
to recourse liability.
Loan No. 88, Comfort Inn Webster -- the representation is true and
accurate except that an act resulting in the Mortgaged Property becoming an
asset in a voluntary bankruptcy or insolvency proceeding does not give rise
to recourse liability and Mortgagor shall not be liable to Seller for any
losses incurred by Seller due to the misapplication or misappropriation of
insurance proceeds or condemnation awards.
Loan No. 89, Forest Ridge Apartments -- the representation is true and
accurate except that an act resulting in the Mortgaged Property becoming an
asset in a voluntary bankruptcy or insolvency proceeding does not give rise
to recourse liability.
Loan No. 91, Woodland Hills Apartments -- the representation is true and
accurate except that an act resulting in the Mortgaged Property becoming an
asset in a voluntary bankruptcy or insolvency proceeding does not give rise
to recourse liability.
(xxxvi):
- -------
Loan No. 19, Embassy Suites Airport/Westshore -- the representation is
true and accurate except that the Mortgaged Property secures the Mortgage
Loan as well as a mortgage loan which is not a part of the Mortgage Pool.
EXHIBIT D
RELATED BORROWERS
With respect to representation (xxxii) of Exhibit B herein, the
following Mortgage Loans, representing 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:
1. Loan No. 1 (identified in the Prospectus Supplement as the Kilroy
Loan) which represents approximately 10.41% of the Initial Pool
Balance is made to one Mortgagor.
2. Loan Nos. 2, 3 and 7 (identified in the Prospectus Supplement as
the Crystal Gateway Loan, the Skyline Loan and the Crystal Plaza
Loan, respectively) which represent in the aggregate approximately
18.63% of the Initial Pool Balance (8.02%, 6.36% and 4.26%,
respectively) are made to entities under common control.
3. Loan No. 4 (identified in the Prospectus Supplement as the 1065
Avenue of the Americas Loan) which represents approximately 5.01%
of the Initial Pool Balance is made to one Mortgagor.
EXHIBIT K
FORM OF REPORTS
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 V
FORM OF SPECIALLY SERVICED MORTGAGE LOAN AND REO STATUS REPORT PURSUANT TO
SECTION 6.09(A)
EXHIBIT Z
REO ACCOUNT LETTER PURSUANT TO SECTION 6.09(B)
