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) April 22, 1999
J.P. Morgan Commercial Mortgage Finance Corp.
(Exact Name of Registrant as Specified in Charter)
Delaware 333-635896 3789046
- --------------------------- ----------------------- -------------------
State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
60 Wall Street
New York, New York 10260
(Address of Principal ExecutiveOffices and Zip Code)
Registrant's telephone number, including area code (212) 648-9344
<PAGE>
Item 5. Other Events
Filing of Pooling and Servicing Agreement.
On April 22, 1999, J.P. Morgan Commercial Mortgage Finance Corp. (the
"Company") entered into a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), by and among the Company, as depositor, Midland Loan
Services, Inc., as master servicer and special servicer, and State Street Bank
and Trust Company, as trustee. The Pooling and Servicing Agreement is annexed
hereto as Exhibit 99.
<PAGE>
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibits.
The following is filed herewith. The exhibit number corresponds with Item
601(b) of Regulation S-K.
Exhibit No. Description
----------- -----------
99 Pooling and Servicing Agreement
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
J.P. MORGAN COMMERCIAL MORTGAGE
FINANCE CORP.
By: /s/ Bianca Russo
---------------------------
Name: Bianca Russo
Title: Vice President
Dated: April 22, 1999
<PAGE>
Exhibit Index
Exhibit Page
99. Pooling and Servicing Agreement 6
<PAGE>
EXHIBIT 99
EXECUTION COPY
J. P. Morgan Commercial Mortgage Finance Corp.,
Depositor,
Midland Loan Services, Inc.,
Master Servicer and Special Servicer,
and
State Street Bank and Trust Company,
Trustee
--------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 1999
--------------------------------
$801,352,036
Mortgage Pass-Through Certificates
Series 1999-C7
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
<S> <C>
Section 1.01 Defined Terms......................................................................................3
Accepted Servicing Practices................................................................................3
Accepted Special Servicing Practices........................................................................4
Acquisition Date............................................................................................4
Adjusted Available Distribution Amount......................................................................5
Advance.....................................................................................................5
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......................................................................................6
Available Distribution Amount...............................................................................6
Balloon Mortgage Loan.......................................................................................6
Balloon Payment.............................................................................................6
Bankruptcy Code.............................................................................................6
Book-Entry Certificate......................................................................................6
Business Day................................................................................................6
Certificate.................................................................................................7
Certificate Account.........................................................................................7
Certificate Balance.........................................................................................7
Certificateholder...........................................................................................7
Certificate Owner...........................................................................................7
Certificate Register........................................................................................7
Certificate Registrar.......................................................................................7
Class.......................................................................................................7
Class A1 Certificate........................................................................................7
Class A2 Certificate........................................................................................7
Class B Certificate.........................................................................................8
Class Balance...............................................................................................8
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......................................................................................9
Class R-III Certificate.....................................................................................9
Class X Certificate.........................................................................................9
Class X Component...........................................................................................9
Code.......................................................................................................10
Collateral Value Adjustment................................................................................10
Collateral Value Adjustment Event..........................................................................10
Collection Account.........................................................................................11
Collection Period..........................................................................................11
Condemnation Proceeds......................................................................................11
Corporate Trust Office.....................................................................................11
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.................................................................................................12
Depository Participant.....................................................................................12
Detailed Loan Indicative Data File.........................................................................13
Determination Date.........................................................................................13
Directing Certificateholder................................................................................13
Directly Operate...........................................................................................13
Disqualified Organization..................................................................................13
Distribution Date..........................................................................................13
DSCR.......................................................................................................14
Due Date...................................................................................................14
Eligible Account...........................................................................................14
Environmental Laws.........................................................................................15
Escrow Account.............................................................................................15
Escrow Payments............................................................................................15
Event of Default...........................................................................................15
Excess Cash Flow...........................................................................................15
Excess Condemnation Proceeds...............................................................................16
Excess Insurance Proceeds..................................................................................16
Excess Interest............................................................................................16
FDIC.......................................................................................................16
Final Certification........................................................................................16
Final Recovery Determination...............................................................................17
Fitch......................................................................................................17
Hazardous Materials........................................................................................17
Healthcare Adviser.........................................................................................17
Healthcare Adviser Fee.....................................................................................17
Healthcare Adviser Loans...................................................................................17
Holder.....................................................................................................17
Independent................................................................................................18
Initial Subservicer........................................................................................18
Insurance Policy...........................................................................................18
Insurance Proceeds.........................................................................................18
Interest Accrual Amount....................................................................................19
Interest Distribution Amount...............................................................................19
Interest Reserve Account...................................................................................19
Interest Reserve Loan......................................................................................19
Interested Person..........................................................................................20
Law........................................................................................................20
Liquidation Event..........................................................................................20
Liquidation Proceeds.......................................................................................20
Loan Sale Agreement........................................................................................20
Loss Mortgage Loan.........................................................................................20
MAI........................................................................................................20
Master Remittance Date.....................................................................................20
Master Servicer............................................................................................20
Master Servicing Fee.......................................................................................20
Master Servicing Fee Rate..................................................................................21
Maturity Date..............................................................................................21
MGT........................................................................................................21
Midland....................................................................................................21
Minimum Master Servicing Fee Rate..........................................................................21
Modification...............................................................................................21
Monitoring Certificateholder...............................................................................21
Monitoring Class...........................................................................................21
Monthly Payment............................................................................................21
Mortgage...................................................................................................21
Mortgage Loan..............................................................................................21
Mortgage Loan Documents....................................................................................22
Mortgage Loan File.........................................................................................22
Mortgage Loan Schedule.....................................................................................22
Mortgage Loan Seller.......................................................................................22
Mortgage Note..............................................................................................22
Mortgage Rate..............................................................................................22
Mortgaged Property.........................................................................................22
Mortgagor..................................................................................................22
Most Subordinate Class of Certificates.....................................................................23
Net Prepayment Premium.....................................................................................23
Nonrecoverable Advance.....................................................................................23
Nonrecoverable Advance Certificate.........................................................................23
Non-United States Person...................................................................................23
Non-U.S. Treasury Net Prepayment Premium...................................................................23
Notional Amount............................................................................................23
Officers'Certificate.......................................................................................23
Operating Statements and Rent Rolls Report.................................................................23
Opinion of Counsel.........................................................................................24
Original Class Balance.....................................................................................24
Ownership Interest.........................................................................................24
P&I Advance................................................................................................24
Pass-Through Rate..........................................................................................24
Payment Reserve............................................................................................24
Percentage Interest........................................................................................24
Permitted Investments......................................................................................24
Person.....................................................................................................25
Pool Factor................................................................................................25
Prepayment Assumption......................................................................................26
Prepayment Interest Excess.................................................................................26
Prepayment Interest Shortfall..............................................................................26
Prepayment Premium.........................................................................................26
Primary Servicing Fees.....................................................................................26
Prime Rate.................................................................................................26
Principal Distribution Amount..............................................................................26
Principal Prepayment.......................................................................................27
Private Certificates.......................................................................................27
Property Improvement Expenses..............................................................................27
Property Inspection Report.................................................................................27
Property Protection Expenses...............................................................................27
Purchase Price.............................................................................................28
Qualified Insurer..........................................................................................28
Rated Final Distribution Date..............................................................................29
Rating Agency..............................................................................................29
Realized Loss..............................................................................................29
Record Date................................................................................................30
REMIC......................................................................................................30
REMIC I....................................................................................................30
REMIC I Uncertificated Interests...........................................................................30
REMIC II...................................................................................................30
REMIC II Uncertificated Interests..........................................................................30
REMIC III..................................................................................................30
REMIC Provisions...........................................................................................30
Remittance Period..........................................................................................31
Remittance Rate............................................................................................31
Remittance Report..........................................................................................31
Rents from Real Property...................................................................................31
REO Account................................................................................................31
REO Acquisition............................................................................................31
REO Mortgage Loan..........................................................................................31
REO Proceeds...............................................................................................31
REO Property...............................................................................................32
REO Status Report..........................................................................................32
REO Tax....................................................................................................32
Repair and Remediation Reserve.............................................................................32
Replacement Reserve........................................................................................32
Replacement Special Servicer...............................................................................32
Request for Release and Receipt of Documents...............................................................32
Required Appraisal Date....................................................................................32
Required Rating............................................................................................32
Residual Certificate.......................................................................................33
Responsible Officer........................................................................................33
Revised Rate...............................................................................................33
S&P........................................................................................................33
Scheduled Principal Balance................................................................................33
Security Agreement.........................................................................................33
Servicer...................................................................................................33
Servicer Watch List........................................................................................33
Servicing Advance..........................................................................................34
Servicing Fee..............................................................................................34
Servicing Fee Rate.........................................................................................34
Servicing Officer..........................................................................................34
Servicing Transfer Date....................................................................................34
Servicing Transfer Event...................................................................................34
Specially Serviced Mortgage Loan...........................................................................35
Specially Serviced Mortgage Loan Status Report.............................................................35
Special Servicer...........................................................................................35
Special Servicing Fee......................................................................................35
Startup Day................................................................................................35
State Tax Laws.............................................................................................35
Stated Principal Balance...................................................................................35
Tax Matters Person.........................................................................................36
Tax Returns................................................................................................36
Tenant Improvement and Leasing Commissions Reserve.........................................................36
Transfer Date..............................................................................................36
Trust Fund.................................................................................................36
Trustee....................................................................................................37
Trustee Fee................................................................................................37
Trustee Fee Rate...........................................................................................37
UCC Financing Statement....................................................................................37
Uncertificated Interest I..................................................................................37
Uncertificated Interest II.................................................................................37
Uncertificated Interest III................................................................................37
Uncertificated Interest IV.................................................................................37
Uncertificated Interest V..................................................................................37
Uncertificated Interest VI.................................................................................37
Uncertificated Interest VII................................................................................37
Uncertificated Interest VIII...............................................................................38
Uncertificated Interest IX.................................................................................38
Uncertificated Interest X....................................................................................
Underwriter................................................................................................38
United States Person.......................................................................................38
U.S. Treasury Net Prepayment Premium.......................................................................38
Voting Rights..............................................................................................38
Weighted Average Remittance Rate...........................................................................38
Withheld Amount............................................................................................39
Section 1.02 Calculations......................................................................................39
Section 1.03 Rules of Construction.............................................................................39
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans......................................................................40
Section 2.02 Acceptance by Trustee.............................................................................42
Section 2.03 Representations and Warranties of the Depositor, the Master Servicer and the Special
Servicer; Assignment of Rights................................................................... 43
Section 2.04 Repurchase of Mortgage Loans for Breaches of Representation and Warranty..........................48
Section 2.05 Execution of Certificates.........................................................................49
ARTICLE III
GENERAL SERVICING AND ADMINISTRATION
Section 3.01 Access to Certain Documentation Regarding the Mortgage Loans and This Agreement...................50
Section 3.02 Annual Statement As to Compliance.................................................................50
Section 3.03 Annual Independent Public Accountants' Servicing Report...........................................50
Section 3.04 Merger or Consolidation of Any Servicer...........................................................51
Section 3.05 Limitation on Liability of the Servicers and Others...............................................51
Section 3.06 Resignation of Servicers..........................................................................52
Section 3.07 Maintenance of Errors and Omissions and Fidelity Coverage.........................................52
Section 3.08 Indemnity.........................................................................................53
Section 3.09 Information Systems...............................................................................54
Section 3.10 Successor to a Servicer...........................................................................54
Section 3.11 REMIC Administration..............................................................................56
Section 3.12 Notices to Mortgagors.............................................................................59
Section 3.13 Subservicing......................................................................................60
Section 3.14 Record Title to Mortgage Loans, Etc...............................................................61
Section 3.15 Release of Documents and Instruments of Satisfaction..............................................61
Section 3.16 Additional Servicing Restrictions.................................................................62
Section 3.17 Interest Reserve Account..........................................................................62
ARTICLE IV
MASTER SERVICING
Section 4.01 The Master Servicer...............................................................................64
Section 4.02 Collection Account; Collection of Certain Mortgage Loan Payments..................................66
Section 4.03 Permitted Withdrawals from the Collection Account.................................................68
Section 4.04 Remittances to the Trustee........................................................................70
Section 4.05 Master Servicer Advances..........................................................................71
Section 4.06 Escrow Accounts...................................................................................73
Section 4.07 Maintenance of Insurance..........................................................................75
Section 4.08 Enforcement of "Due-on-Sale" Clauses; Assumption Agreements.......................................77
Section 4.09 Review of Property Inspections, Operating Statements, Rent Rolls and Financial Statements.........79
Section 4.10 Reports of the Master Servicer....................................................................79
Section 4.11 Confirmation of Balloon Payment...................................................................80
Section 4.12 Master Servicer Compensation......................................................................80
Section 4.13 Adjustment of Master Servicer's Compensation......................................................81
Section 4.14 Implementation of Operations and Maintenance Plans................................................81
Section 4.15 Dissemination of Information......................................................................81
ARTICLE V
[RESERVED]
ARTICLE VI
SPECIAL SERVICING
Section 6.01 The Special Servicer..............................................................................83
Section 6.02 Transfer to Special Servicing.....................................................................83
Section 6.03 Servicing of Specially Serviced Mortgage Loans....................................................84
Section 6.04 Management of REO Property........................................................................88
Section 6.05 Sale of REO Property and Specially Serviced Mortgage Loans........................................90
Section 6.06 REO Account; Collection of REO Proceeds...........................................................91
Section 6.07 Master Servicer...................................................................................92
Section 6.08 Remittances to Master Servicer....................................................................92
Section 6.09 Specially Serviced Mortgage Loan Status Reports, REO Status Reports and Other Reports.............92
Section 6.10 Special Servicer Advances.........................................................................94
Section 6.11 Environmental Considerations......................................................................95
Section 6.12 Restoration of Specially Serviced Mortgage Loans..................................................96
Section 6.13 Special Servicer Compensation.....................................................................97
Section 6.14 Limitations on the Special Servicer with Respect to ARD Loans.....................................97
Section 6.15 Collateral Value Adjustments......................................................................98
Section 6.16 Replacement Special Servicer......................................................................98
Section 6.17 Healthcare Adviser Loans..........................................................................99
ARTICLE VII
PAYMENTS TO CERTIFICATEHOLDERS
Section 7.01 Certificate Account; Remittances to the Trustee..................................................101
Section 7.02 Distributions....................................................................................101
Section 7.03 Statements to Certificateholders.................................................................105
Section 7.04 Distribution of Reports to the Trustee and the Depositor; Advances by the Master Servicer........107
Section 7.05 Allocations of Realized Losses and Collateral Value Adjustments..................................108
ARTICLE VIII
THE CERTIFICATES
Section 8.01 The Certificates.................................................................................109
Section 8.02 Registration of Transfer and Exchange of Certificates............................................110
Section 8.03 Mutilated, Destroyed, Lost or Stolen Certificates................................................113
Section 8.04 Persons Deemed Owners............................................................................114
ARTICLE IX
THE DEPOSITOR
Section 9.01 Liability of the Depositor.......................................................................115
Section 9.02 Merger, Consolidation or Conversion of the Depositor.............................................115
Section 9.03 Limitation on Liability of the Depositor and Others..............................................115
ARTICLE X
DEFAULT
Section 10.01 Events of Default................................................................................116
Section 10.02 Trustee to Act; Appointment of Successor.........................................................119
Section 10.03 Notification to Certificateholders...............................................................119
Section 10.04 Waiver of Events of Default......................................................................119
Section 10.05 Additional Remedies of Trustee Upon Event of Default.............................................120
ARTICLE XI
CONCERNING THE TRUSTEE
Section 11.01 Duties of Trustee................................................................................121
Section 11.02 Monitoring Certificateholders and Directing Certificateholder....................................122
Section 11.03 Powers of Attorney...............................................................................123
Section 11.04 Certification by Certificate Owners..............................................................124
Section 11.05 Certain Matters Affecting the Trustee............................................................124
Section 11.06 Trustee Not Liable for Certificates or Mortgage Loans............................................125
Section 11.07 Trustee May Own Certificates.....................................................................126
Section 11.08 Fees and Expenses of Trustee; Indemnification of Trustee.........................................126
Section 11.09 Eligibility Requirements for Trustee.............................................................127
Section 11.10 Resignation and Removal of the Trustee...........................................................127
Section 11.11 Successor Trustee................................................................................128
Section 11.12 Merger or Consolidation of Trustee...............................................................129
Section 11.13 Appointment of Co-Trustee or Separate Trustee....................................................129
Section 11.14 Appointment of Custodians........................................................................130
Section 11.15 Representations and Warranties of the Trustee....................................................132
Section 11.16 SEC Filings......................................................................................133
Section 11.17 Massachusetts Filings............................................................................133
ARTICLE XII
TERMINATION
Section 12.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans.................................134
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment........................................................................................136
Section 13.02 Recordation of Agreement; Counterparts...........................................................137
Section 13.03 Limitation on Rights of Certificateholders.......................................................138
Section 13.04 Governing Law....................................................................................139
Section 13.05 Notices..........................................................................................139
Section 13.06 Severability of Provisions.......................................................................139
Section 13.07 Grant of a Security Interest.....................................................................139
Section 13.08 Successors and Assigns...........................................................................140
Section 13.09 Article and Section Headings.....................................................................140
Section 13.10 Notices and Information to Rating Agencies.......................................................140
Section 13.11 Certificateholders' List .....................................................................141
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-1 Health Care Adviser Loans
Exhibit H-2 Congregate Care Mortgage Loans
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)
</TABLE>
This Pooling and Servicing Agreement, dated and effective as
of April 1, 1999, among J.P. Morgan Commercial Mortgage Finance Corp., a
Delaware corporation, as Depositor, Midland Loan Services, Inc., a Delaware
corporation, as Master Servicer and 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". One hundred and forty-five partial undivided
beneficial ownership interests in each of the Mortgage Loans (the "REMIC I
Uncertificated Classes") will be designated as the "regular interests" in
REMIC I and the Class R-I Certificates will be the sole class of "residual
interests" in REMIC I, for purposes of the REMIC Provisions (as defined
herein) under federal income tax law. A segregated pool of assets consisting
of the REMIC I Uncertificated Classes will be designated as "REMIC II" and the
Trustee will make a separate REMIC election with respect thereto. Ten partial
undivided beneficial ownership interests in REMIC II (the "REMIC II
Uncertificated Classes") will be designated as the "regular interests" in
REMIC II and the Class R-II Certificates will be the sole class of "residual
interests" in REMIC II, for purposes of the REMIC Provisions under federal
income tax laws. Each of the REMIC II Uncertificated Classes will be allocated
distributions of principal and Realized Losses on each Distribution Date in an
amount equal to the aggregate amount of principal distributions and Realized
Losses allocated to the related Class of Certificates. In addition, each of
the REMIC II Undertificated Claims will be allocated distributions on interest
in the same order of priority as the related Class of Certificates. For
purposes of the preceding two sentences, each REMIC II Uncertificated Class
will be deemed related to the Class of Certificates referenced in the
definition thereof. 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 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 Designation Pass-Through Rate Original Class Balance
Class A1 6.180% $208,000,000
Class A2 6.507% $356,953,000
Class B 6.658% $40,067,000
Class C (1) $40,067,000
Class D (2) $52,087,000
Class E (2) $12,020,000
Class X (3) $0(4)
Class F 6.000% $38,064,000
Class G 6.000% $26,043,000
Class H 6.000% $4,006,000
Class NR 6.000% $24,045,036
Class R-I NA NA
Class R-II NA NA
Class R-III NA NA
- --------------
(1) The Pass-Through Rate for the Class C Certificates will be a rate equal
to the Weighted Average Remittance Rate minus 0.378%.
(2) The Pass-Through Rate will be a rate equal to the Weighted Average
Remittance Rate.
(3) 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.
(4) Interest will be calculated 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 $801,352,036.
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;
(vi) the obligation of the Master Servicer to repurchase
any Mortgage Loan; or
(vii) any debt that the Master Servicer has extended to
any borrower.
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;
(vi) the obligation of the Special Servicer to repurchase
any Mortgage Loan; or
(vii) any debt that the Special Servicer has extended to
any borrower.
"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.
"Advance": A P&I Advance or Servicing Advance.
"Advance/Delinquency Report": The report prepared pursuant to
Section 4.10(a)(ii) hereof substantially 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.
"Available Distribution Amount": With respect to any
Distribution Date, (a) 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 and (b) with respect to the Distribution
Date occurring in March of each calendar year, the Withheld Amounts with
respect to the Interest Reserve Loans deposited in the Interest Reserve
Account by the Trustee in January and/or February of such calendar year in
accordance with Section 3.17; net of, with respect to the Distribution Date
occurring in (A) January of each calendar year that is not a leap year and (B)
February of each calendar year, the Withheld Amounts with respect to the
Interest Reserve Loans deposited in the Interest Reserve Account by the
Trustee with respect to such Distribution Date in accordance with Section
3.17.
"Balloon Mortgage Loan": Any Mortgage Loan that by its
original terms or by virtue of any modification provides for an amortization
schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan
as of any date of determination, the amount outstanding on the Maturity Date
of such Mortgage Loan in excess of the related Monthly Payment.
"Bankruptcy Code": The federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking and savings and loan institutions in the states of
Missouri, Massachusetts or New York are authorized or obligated by law or
executive order to remain closed.
"Certificate": Any Class A1, Class A2, 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
1999-C7".
"Certificate Balance": With respect to any Class A1, Class A2,
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,
Special Servicer, the Depositor or any Affiliate thereof 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 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 the Original Class Balance thereof minus (B) 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 6.180%
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 6.507%
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 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 6.658%
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;
(d) the Class CX Component, with a Pass-Through Rate for
any Distribution Date equal to 0.378% 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;
(e) 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;
(f) 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;
(g) 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
(h) 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 ss. 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 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, (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, (v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the related Mortgagor and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days, (vi) the
related Mortgagor shall have admitted in writing its inability to pay its
debts generally as they become due or filed a petition to take advantage of
any applicable insolvency or reorganization statute, or (vii) the third
anniversary of the date on which the first extension of the Maturity Date of
such Mortgage Loan becomes effective as a result of a modification of such
Mortgage Loan by the Special Servicer pursuant to 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 "Midland Loan Services, Inc., as
master servicer, for the benefit of J.P. Morgan Commercial Mortgage Finance
Corp. Mortgage Pass-Through Certificates Series 1999-C7".
"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 (to the extent consistent with 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 1999-C7.
"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": April 1, 1999.
"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": April 22, 1999.
"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)(ii) hereof substantially 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 May 1999.
"DSCR": With respect to any Mortgage Loan, the ratio of (a)
monthly operating revenues minus monthly operating expenses (as determined for
purposes of Section 4.10) for the related Mortgaged Property to (b) the
related Monthly Payments.
"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 S&P and if
rated by Fitch, either have a long-term rating of "AA-" or a
short-term rating of F-1+ by Fitch; 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. ss. 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,
by S&P). 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. ss.ss. 9601-9657;
(ii) the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
ss.ss. 6901-6991i;
(iii) the Toxic Substance Control Act, 15 U.S.C. ss.ss. 2601-2629;
(iv) the Water Pollution Control Act (also known as the Clean Water
Act), 33 U.S.C. ss. 1251 et seq.;
(v) the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; and
(vi) the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1801
et seq.
"Escrow Account": Each separate account or subaccount, each of
which shall be an Eligible Account (to the extent consistent with the related
Mortgage Loan Documents), created and maintained for the Mortgage Loans
pursuant to Section 4.06 hereof, each of which shall be entitled "Midland Loan
Services, Inc., as master servicer, for the benefit of J.P. Morgan Commercial
Mortgage Finance Corp. Mortgage Pass-Through Certificates, Series 1999-C7,
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": Subject to the related Mortgage Loan
Documents, cash flow from the Mortgaged Property securing an ARD Loan after
payments of interest (at the Mortgage 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 (to the extent consistent with 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 (to the extent consistent
with 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 interest on an ARD
Loan allocable to the Excess Rate and, to the extent permitted by law,
interest thereon at the Revised Rate.
"Excess Rate": With respect to each ARD Loan after the
related Anticipated Repayment Date, the excess of (i) the applicable Revised
Rate over (ii) the applicable Mortgage Rate in effect prior to the Anticipated
Repayment Date.
"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.
"Fitch": Fitch IBCA, Inc.
"Hazardous Materials": All materials subject to any
Environmental Law, including, without limitation, materials listed in 49
C.F.R. ss. 172.010, materials defined as hazardous pursuant to ss. 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.
"Healthcare Adviser": A Person who is acceptable to Fitch to
advise the Special Servicer with respect to the Healthcare Adviser Loans. No
Person shall be a Healthcare Adviser (i) without the written consent of Fitch
or (ii) if Fitch submits in writing a notice stating that if the designated
Person were to serve as health care adviser hereunder, any of the then-current
ratings assigned by Fitch to the respective Classes of the Certificates would
be qualified, downgraded or withdrawn as a result thereof.
"Healthcare Adviser Fee": The monthly fee payable to the
Healthcare Adviser with respect to a Healthcare Adviser Loan.
"Healthcare Adviser Loans": (a) The Mortgage Loans listed on
Exhibit H-1 and (b) the Mortgage Loans listed in Exhibit H-2, only if the
Special Servicer has determined that issues may arise in connection with
servicing any such Mortgage Loan related to maintaining any licenses necessary
for providing healthcare services or making or collecting any insurance or
government reimbursement claims arising from healthcare services.
"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,
Special Servicer, the Depositor or any Affiliate thereof 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, the Trustee 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.
"Independent Contractor": Either (i) any Person that would
be an "independent contractor" with respect to the Trust Fund within the
meaning of Section 856(d)(3) of the Code if the Trust Fund were a real estate
investment trust (except that the ownership tests set forth in that section
shall be considered to be met by any Person that owns, directly or indirectly
35% or more of any Class or 35% or more of the aggregate value of all Classes
of Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except that the Special Servicer shall not be considered to be
an Independent Contractor under the definition in this clause (i) unless an
Opinion of Counsel (obtained at the expense of the Special Servicer) addressed
to the Special Servicer and the Trustee has been delivered to the Trustee to
the effect that the Special Servicer meets the requirements of such
definition) or (ii) any other Person (including the Special Servicer) if the
Special Servicer, on behalf of itself and the Trustee, has received an Opinion
of Counsel (obtained at the expense of the party seeking to be deemed an
Independent Contractor) to the effect that the taking of any action in respect
of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code) or cause any income realized with respect of such REO
Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Initial Subservicer": With respect to each Mortgage Loan that
is subject to a subservicing agreement with the Master Servicer as of the
Delivery Date, the subservicer under any such subservicing agreement.
"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 (to the extent
consistent with 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 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 (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.
"Interest Reserve Account": The separate account, which shall
be an Eligible Account, created and maintained by the Trustee pursuant to
Section 3.17 in trust for the 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 1999-C7-- Interest Reserve Account."
"Interest Reserve Loan": Any Mortgage Loan bearing interest
computed on an actual/360 basis.
"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
April 1, 1999, 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.
"MAI": Member of Appraisal Institute.
"Master Remittance Date": With respect to each Distribution
Date, one Business Day preceding such Distribution Date.
"Master Servicer": Midland Loan Services, Inc., a Delaware
corporation, 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.
"Midland": Midland Loan Services, Inc., or its successor in
interest.
"Minimum Master Servicing Fee Rate": A rate of 0.02% per
annum.
"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 (or if modified, as
modified in accordance with this Agreement) 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 or
collections 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 obtained within the preceding twelve months).
"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 substantially 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 Section 4.05(a) 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.
"Primary Servicing Fees": The monthly fee payable by the
Master Servicer from the Master Servicing Fee to each Initial Subservicer,
which monthly fee accrues at the rate per annum specified as such in the
Mortgage Loan Schedule.
"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, and (d) any other portion of the Adjusted Available Distribution
Amount remaining undistributed after payment of any interest payable on the
Certificates pursuant to clause (xix) of Section 7.02(a) for the related or
any prior Distribution Date, including any Prepayment Interest Excess not
offset by any Prepayment Interest Shortfall occurring during the related
Remittance Period or otherwise required to reimburse the Master Servicer and
interest distributions on the Mortgage Loans, in excess of interest
distributions on the Certificates, resulting from the allocation of amounts
described in this clause (d) to principal distributions on the Certificates.
"Principal Prepayment": Any payment or other recovery of
principal on a Mortgage Loan that is received in advance of its scheduled Due
Date which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month of prepayment.
"Private Certificates": The Class F, Class G, Class 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 substantially 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 (x)
the lower of (A) "A-" and (B) one rating category below the highest
rating for the outstanding Certificates, but not less than "BBB", by
S&P and (y) either (A) "A" by Fitch (or, if not rated by Fitch, by
S&P) or (B) "A-(IX)" by AM Best, Inc.; 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).
"Rated Final Distribution Date": The Distribution Date in
October 2035, which is the first Distribution Date following the third
anniversary of the date at which the Stated Principal Balance of all the
Mortgage Loans would be 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.
"Rating Agency": Each of Fitch and S&P.
"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 one hundred
forty-five 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 one
hundred forty-five 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, and Uncertificated Interest VII, Uncertificated Interest VIII,
Uncertificated Interest IX and Uncertificated Interest X.
"REMIC III": A segregated pool of assets consisting of
Uncertificated Interest I, Uncertificated Interest II, Uncertificated Interest
III, Uncertificated Interest IV, Uncertificated Interest V, Uncertificated
Interest VI, Uncertificated Interest VII, Uncertificated Interest VIII,
Uncertificated Interest IX and Uncertificated Interest X.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"Remittance Period": For any Distribution Date is the period
beginning after a Determination Date in the immediately preceding month (or
the Cut-off Date, in the case of the first Distribution Date) through the
related Determination Date.
"Remittance Rate": With respect to any Mortgage Loan, the per
annum rate equal to the excess of the related Mortgage Rate (without giving
affect to any modification or other reduction thereof following the Cut-off
Date) over the 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; provided, however, that with respect to the
Interest Reserve Loans, (i) the Remittance Rate for the one-month period
preceding the Due Dates in (a) January of each calendar year that is not a
leap year and (b) February of each calendar year, will be determined net of
the Withheld Amounts and (ii) the Remittance Rate for the one-month period
preceding the Due Dates in March of each calendar year will be determined
after taking into account the addition of the Withheld Amounts.
"Remittance Report": The report prepared pursuant to Section
4.10(a)(i) hereof substantially 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": The report prepared pursuant to Section
6.09(a) substantially in the form of Exhibit V hereto.
"REO Tax": As defined in Section 6.04(d).
"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) twelve consecutive months following a Collateral Value
Adjustment if the Servicers have made P&I Advances consecutively during such
twelve month period.
"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 ("F-1+"
by Fitch and "A-1+" by S&P) (or if such obligations are
not rated by Fitch, by S&P); or
(b) with respect to long-term debt obligations, the long-term
rating of "AA-" by Fitch and S&P (or, if such obligations
are not rated by Fitch, by S&P).
"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.
"S&P": Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"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.
"Servicer Watch List": A report or reports setting forth,
among other things, certain Mortgage Loans that (i) have experienced a
decrease of at least (a) 10% in DSCR from the previous reporting period or (b)
20% in DSCR in the prior 12 month period (unless the Master Servicer shall
have reasonably determined that such decrease is due to the seasonal nature or
use of the related Mortgaged Property), (ii) have experienced a loss of or
bankruptcy of the largest tenant (to the extent the Master Servicer has actual
knowledge of such loss or bankruptcy) or (iii) the Master Servicer has
determined in its good faith and reasonable judgment that a default in the
payment of a Monthly Payment is likely to occur.
"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.
"Servicing Fee Rate": With respect to any Mortgage Loan, shall
equal the sum of the related Master 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": The report
prepared pursuant to Section 6.09(a) substantially in the form of Exhibit V.
"Special Servicer": Midland Loan Services, Inc., a Delaware
corporation, its successor in interest, or any successor servicer appointed as
such as herein provided.
"Special Servicing Fee": The compensation the Special Servicer
shall be entitled to receive pursuant to Section 6.13.
"Startup Day": The Delivery Date.
"State Tax Laws": The laws of the states of New York, Missouri
and 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.
"Transferable Servicing Interest": Subject to reduction by the
Trustee pursuant to Section 4.12, the amount by which the Master Servicing
Fees otherwise payable to the Master Servicer hereunder exceed the sum of (i)
the Primary Servicing Fees and (ii) the amount of such Master Servicing Fees
calculated using the Minimum Master Servicing Fee Rate.
"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 B Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest IV": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class C Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest V": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class D 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 E 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 F 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 G 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 H Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest X": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class NR Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Underwriter": Each of J.P. Morgan Securities Inc., Deutsche
Bank Securities, Inc. and Chase 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 ss.7701(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 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 0.33-1/3% 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.
"Withheld Amount": With respect to (a) each Interest Reserve
Loan and (b) each Distribution Date occurring in (i) January of each calendar
year that is not a leap year and (ii) February of each calendar year, an
amount equal to one day's interest at the related Mortgage Rate (less any
Master Servicing Fee and Trustee Fee payable therefrom) on the respective
Stated Principal Balance as of the Due Date in the month in which such
Distribution Date occurs, to the extent that a Monthly Payment or P&I Advance
is made in respect thereof.
Section 1.02 Calculations.
Unless otherwise specified herein or in the related Mortgage
Loan Documents, 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 1999-C7", 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 1999-C7";
(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;
(xi) any escrow, guarantee, environmental liability agreement,
intercreditor agreement, management agreement, or lockbox
arrangement, in each case if any such document exists.
(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 1999-C7" 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 60 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, an initial certification in a form
acceptable to the Depositor (the "Initial 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 Initial Certification.
Promptly following the first anniversary of the Closing Date, the Trustee
shall deliver a final report as to any remaining document deficiencies (the
"Final Certification"), whereupon, within 90 days, the Depositor shall
either: (i) cause such document deficiency to be cured; (ii) cause to be
delivered to the Trustee an Opinion of Counsel to the effect that such
document deficiency is not material; or (iii) repurchase (or cause MGT to
repurchase) the related Mortgage Loan pursuant to Section 2.04.
Notwithstanding that any 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 Master Servicer and the Special Servicer
hereby represents and warrants or covenants to the Trustee and the Depositor,
as of the Delivery Date, that:
(i) Due Organization and Authority.
(A) such Servicer has or shall obtain all licenses
necessary to carry on its business as now being conducted
and is or will become licensed, qualified and in good
standing in each state where a Mortgaged Property is
located, if the laws of such state require licensing or
qualification in order to conduct business of the type
conducted by such Servicer and if such failure to be
licensed or qualified could have a material and adverse
effect on the ability of the Servicer to perform its
obligations under this Agreement or enforce the Mortgage
Loan Documents; no license, consent, approval,
authorization or order of, or registration or filing
with, or notice to any court or governmental agency or
body is required for the execution, delivery and
performance by such Servicer of or compliance by such
Servicer with this Agreement or the consummation of the
transactions of such Servicer 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;
(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, receivership, 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 such Servicer in accordance with their terms
and conditions; and
(D) such Servicer is duly authorized, validly
existing and in good standing as a corporation under the
laws of Delaware;
(ii) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the
ordinary course of business of such Servicer;
(iii) Conflicts. Neither the execution and delivery of this
Agreement by such Servicer, the acquisition of the
servicing responsibilities by such Servicer, nor the
transactions of such Servicer contemplated hereby, nor
the fulfillment of or compliance with the terms and
conditions of this Agreement by such Servicer, 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 upon 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, which, in
the case of any of (a), (b), (c) or (d), would have a
material adverse effect upon the financial condition
of such Servicer or its properties taken as a whole or
upon the ability of the Servicer to perform under the
terms and conditions of 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. Such Servicer covenants that
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;
(viii) No Litigation. There is no action, suit or proceeding
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 taken as a whole, or in any material
liability on the part of such Servicer, or which would
draw into question the validity of this Agreement or
the Mortgage Loans or of any action taken or to be
taken in connection with the obligations of such
Servicer contemplated herein, or which would be likely
to impair materially the ability of such Servicer to
perform under the terms and conditions of this
Agreement; and
(ix) Year 2000 Compliance. Such Servicer covenants that by
June 30, 1999, any custom-made software or hardware
designed or purchased or licensed by such Servicer and
used by such Servicer in the course of the operation
or management of, or the compiling, reporting or
generation of data required by this Agreement, will
not contain any material deficiency (x) in the ability
of such software or hardware to identify correctly or
perform calculations or other processing with respect
to dates after June 30, 1999 or (y) that would cause
such software or hardware to be fit no longer for the
purpose for which it was indended by reason of the
changing of the date of 1999 to 2000. The foregoing
matters extend and relate only to the internal
functioning of the software and hardware maintained by
such Servicer, and such Servicer shall not be
responsible for the accuracy or integrity of any data
or calculations provided to such Servicer by any third
party.
(c) 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.
(d) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall (i) survive the execution and
delivery of this Agreement and (ii) not be diminished by any limitation in
any assignment, endorsement or allonge relating to any Mortgage Loan
Document, 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 and each Rating Agency.
Section 2.04 Repurchase of Mortgage Loans for Breaches of
Representation 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(c) for the benefit
of the Certificateholders, which materially and adversely affects the value
of any Mortgage Loan or the interest of any Certificateholder therein, the
Depositor shall at its option (i) (A) in all material respects cure such
breach or (B) purchase the affected Mortgage Loan from the 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.
<PAGE>
ARTICLE III
GENERAL SERVICING AND ADMINISTRATION
Section 3.01 Access to Certain Documentation Regarding the Mortgage
Loans and This Agreement.
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 relating to any Mortgage Loan, REO Property, 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 or procedures manuals 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.
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, 2000, 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,
2000, 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 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(d) 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 willful misconduct);
provided, however, that this provision shall not protect any Servicer or
agents of such Servicer against any liability resulting from any breach of any
representation or warranty made herein, or from any liability specifically
imposed on such Servicer herein; and provided, further, that this provision
shall not protect any Servicer or agents of such Servicer against any
liability that would otherwise be imposed by reason of the willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of the obligations or duties hereunder. Each Servicer
and any director, officer, employee or agent thereof may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
other Servicer, the Depositor, the Trustee or the Custodian respecting any
matters arising hereunder. No Servicer shall be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties
to service the Mortgage Loans in accordance with this Agreement; provided,
however, that any Servicer may undertake any such action that it may deem
necessary or desirable in respect to this Agreement and any Mortgage Loan and
the rights and duties of the parties hereto or the interest of the
Certificateholders. In such event, the reasonable legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and such Servicer shall be entitled to be
reimbursed therefor from the Trust Fund upon written demand.
Section 3.06 Resignation of Servicers.
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.
Not withstanding the foregoing, 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 Trustee
shall be designated as a loss payee under such policy. 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 long term investments on 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
(which report may omit any references to individuals suspected of
embezzlement, fraud or irregularities of operation) 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's willful misfeasance, bad faith or
negligence.
(b) Each Servicer and its respective officers, directors,
employees, general partner and agents shall be entitled to indemnification
from the Trust Fund for any and all costs, expenses, losses, damages, claims
and liabilities, including reasonable fees and expenses of counsel and
expenses of litigation, incurred in connection with any legal action relating
to any Mortgage Loan or 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 reasonable 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 reasonable 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 Sections 3.05 and 3.08 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, Section 10.01 or
Section 12.01 hereof shall not affect any rights or claims that the Trustee
or any Servicer may have against the Trust Fund, Trustee or another Servicer,
in any case arising prior to any such termination or resignation.
(c) Upon its termination or resignation, the terminated or
resigning Servicer shall immediately deliver to the successor the funds in
any account maintained by such Servicer pursuant to this Agreement (net of
all unpaid Servicing Fees payable to it, unreimbursed Advances advanced by it
and interest on such Advances at the Advance Rate), any Mortgage Loan
Documents in such Servicer's possession and related documents and statements
held by it hereunder and such Servicer shall account for all funds. Such
Servicer shall execute and deliver such instruments and do all such other
things as may reasonably be required to more fully and definitely vest and
confirm in the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of such Servicer. The successor shall promptly
make arrangements to reimburse such Servicer for amounts such Servicer
actually expended, unreimbursed Advances and amounts owed to such Servicer in
respect of unpaid Servicing Fees pursuant to this Agreement that would
otherwise have been recovered by such Servicer pursuant to this Agreement but
for the appointment of the successor servicer, net of any amounts owed by
such Servicer hereunder.
(d) Notwithstanding anything contained herein, a successor
Servicer shall be an established housing and home finance institution or
mortgage servicing institution (x) which has a net worth of not less than
$15,000,000 and (y) as to which each Rating Agency has given written
confirmation stating that if the designated replacement (including the
Trustee) 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 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) subject to Section 6.04, 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 Servicer
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 October 2035, which is the first Distribution Date
following the third anniversary of the date on which the Stated Principal
Balance of all the Mortgage Loans would be zero, assuming no prepayments and
that the Balloon Mortgage 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 Loan 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 Fitch 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 related 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 (or any Custodian appointed by 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 substantially 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.
To the extent not inconsistent with the Mortgage Loan
Documents, no Servicer shall allow a Mortgagor to defease a Mortgage Loan
unless such Servicer shall have obtained written confirmation from S&P
stating that upon such defeasance none of the then-current rating or ratings
of all outstanding classes of the Certificates would be qualified,
downgraded or withdrawn by S&P as a result thereof.
Section 3.17 Interest Reserve Account.
(a) The Trustee shall establish and maintain the Interest
Reserve Account, which shall be an Eligible Account, in the name of, and for
the benefit of, the Trustee on behalf of the Certificateholders in trust for
the benefit of the Certificateholders. The Interest Reserve Account shall be
maintained as a as a segregated account, separate and apart from trust funds
for mortgage pass-through certificates of other series administered by the
Trustee and other accounts of the Trustee. Funds in the Interest Reserve
Account shall be held uninvested.
(b) On each Master Remittance Date occurring in (i) January
of each calendar year that is not a leap year and (ii) February of each
calendar year, the Trustee shall calculate the Withheld Amount with respect
to each Interest Reserve Loan. On each such Master Remittance Date, the
Trustee shall withdraw from the Certificate Account and deposit in the
Interest Reserve Account an amount equal to the aggregate of the Withheld
Amounts calculated in accordance with the previous sentence. If the Trustee
shall deposit in the Interest Reserve Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Interest
Reserve Account, any provision herein to the contrary notwithstanding. On or
prior to the Master Remittance Date in March of each calendar year, the
Trustee shall transfer to the Certificate Account the aggregate of all
Withheld Amounts on deposit in the Interest Reserve Account.
ARTICLE IV
<PAGE>
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, unless, with respect to the payment of taxes
and assessments, the Master Servicer reasonably anticipates that such bill
will be paid by the Mortgagor by the close of business on or before the
delinquency date, but in any event the Master Servicer shall make such advance
within 90 days after such date or five Business Days after the Master Servicer
has received confirmation that such item has not been paid, whichever is
earlier, provided that during such 90-day period the Master Servicer shall use
best efforts consistent with Accepted Servicing Practices to confirm whether
such bill has been paid. 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
substantially 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.
(g) The Master Servicer shall calculate, to the extent
provided in and consistent with a Mortgage Loan, any related Prepayment
Premium required to be calculated by reference to a U.S. Treasury Rate (or a
specified number of basis points in excess thereof) by determining the
present value as of the date of prepayment of the remaining Monthly Payments
from such date of prepayment through the related stated maturity (including
the Balloon Payment).
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 may be
retained by the Master Servicer as additional servicing compensation. 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)
amounts representing fees or late charge penalties or modification fees,
assumption fees (subject to Section 4.08(d)), extension fees, NSF check
charges and similar fees and charges payable by Mortgagors with respect to the
Mortgage Loans, which may be retained by the Master Servicer or the Special
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 recoveries of payments with
respect to which such P&I Advances were made;
(iv) to the extent not reimbursed from amounts on
deposit in the Escrow Account pursuant to
Section 4.06(c)(v) hereof or the REO Account
pursuant to Section 6.10 hereof, to reimburse
the 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;
(x) to pay expenses of the Trust Fund specifically
identified as such and authorized in this
Agreement; and
(xi) 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:
(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 to the Trustee for
delivery to 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 or make an advance for default interest or Excess
Interest 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 and,
provided further, that if a Collateral Value Adjustment exists with respect
to any Mortgage Loan, then, in the event of subsequent delinquencies thereon,
the interest portion of the P&I Advance in respect of such Mortgage Loan for
the related Distribution Date shall be reduced (it being herein acknowledged
that there shall be no reduction in the principal portion of such P&I
Advance) to equal the product of (i) the amount of the interest portion of
such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the Stated Principal Balance
of such Mortgage Loan immediately prior to such Distribution Date, net of the
related Collateral Value Adjustment, if any, and the denominator of which is
equal to the Stated Principal Balance of such Mortgage Loan immediately prior
to such Distribution Date. 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 P&I Advance pursuant to Section 6.10,
then the Master Servicer shall be required to make such P&I Advance pursuant
to Section 7.04 to the extent such Advance would not be a Nonrecoverable
Advance.
(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. 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
to the extent consistent with the related Mortgage Loan Documents. 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, on the related Master
Remittance Date, 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 as additional servicing compensation
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 Sections 4.01(c) and 4.07 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 with interest thereon at the Advance Rate
pursuant to Section 4.03(a), Section 4.06(c) or Section 6.10(b).
Section 4.07 Maintenance of Insurance.
(a) The Master Servicer shall use its best efforts
consistent with Accepted Servicing Practices to cause the related Mortgagor
to maintain, or if the Mortgagor does not so maintain, the Master Servicer
shall cause to be maintained with a Qualified Insurer 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 and the Trustee, as
mortgagee, has an insurable interest. 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 use its best
efforts consistent with Acceptable Servicing Practices to 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) If the Master Servicer or the Special Servicer, as
applicable, causes any Mortgaged Property or REO Property to be covered by a
master force placed insurance policy, which policy is issued by a Qualified
Insurer and provides no less coverage in scope and amount for such Mortgaged
Property or REO Property than the insurance required to be maintained
pursuant to Section 4.07(a), the Master Servicer or Special Servicer shall
conclusively be deemed to have satisfied its obligations to maintain
insurance pursuant to Section 4.07(a). Such policy may contain a deductible
clause, in which case the Master Servicer or Special Servicer, as applicable
shall, in the event that (i) there shall not have been maintained on the
related Mortgaged Property or REO Property a policy otherwise complying with
the provisions of Section 4.07(a), and (ii) there shall have been one or more
losses which would have been covered by such a policy had it been maintained,
immediately deposit into the Collection Account from its own funds the amount
not otherwise payable under such policy because of such deductible to the
extend that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan, or, in the absence of any such
deductible limitation, the deductible limitation which is consistent with
Accepted Servicing Practices or Accepted Special Servicing Practices, as
applicable.
(c) 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.
(d) 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, in the event the Master
Servicer has knowledge of any sale or encumbrance in contravention of such
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 provided that
the Special Servicer's consent shall be deemed to have been granted if the
Special Servicer fails to notify the Master Servicer of its intent to
withhold such consent within five Business Days after receipt of such
materials provided by the Master Servicer. Prior to entering into any such
assumption agreement, (i) (A) if the new mortgage loan is one of the ten
largest Mortgage Loans by Stated Principal Balance or (B) if the assuming
Mortgagor, together with Affiliates thereof, which are also Mortgagors with
respect to any of the Mortgage Loans, constitute one of the ten largest
groups of Affiliates which are Mortgagors based on the aggregate Stated
Principal Balance of the Mortgage Loans, or (ii) if the aggregate Stated
Principal Balance of the Mortgage Loans of the assuming Mortgagor and its
Affiliates and any other Mortgage Loans cross-collateralized therewith is
more than (a) $20,000,000 or (b) 5% of the current outstanding Certificate
Balance, then the Master Servicer shall obtain written confirmation from
Fitch in the case of (i) above or S&P in the case of (ii) above stating that
none of the then-current rating or ratings of all outstanding classes of the
Certificates would be qualified, downgraded or withdrawn by such Rating
Agency 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; provided, however, that with respect to the Mortgage Loans
identified as Loan Nos. 48, 80 and 89 in the Mortgage Loan Schedule, the
Master Servicer shall retain 100% of such fees. 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 Rate, the amount of the Monthly Payment, any interest rate floor
or cap applicable to the calculation of the Mortgage 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 substantially the form of Exhibit M hereto
to the Trustee at such times and in such manner as are consistent with
Accepted Servicing Practices; provided that (i) each Mortgaged Property
securing a Mortgage Loan with an outstanding principal balance in excess of
$2,000,000 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 after such
inspection.
(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. Within 105 calendar days after the end of each
quarter (or 180 calendar days after the end of each year for annual
information received), commencing in the quarter ending on September 30,
1999, the Master Servicer shall deliver to the Trustee and each Rating Agency
the Operating Statement and Rent Rolls Report for each Mortgaged Property,
provided that the Master Servicer has timely received (either directly or
from a subservicer or the Special Servicer) the related operating statements
and rent rolls from the related Mortgagor.
(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
after receipt.
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
substantially the form of Exhibit O hereto (including the information
required pursuant to Section 7.04), a Servicer Watch List, a copy of the
Advance/Delinquency Report, and a copy of a Detailed Loan Indicative Data
File in substantially 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 Remittance 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 relating to the Mortgage
Loans 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
Servicing Fee"), with respect to each Mortgage Loan that shall be equal to
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 Sections 4.02(b) and 4.06(c), and certain fees described in
clause (2) of Section 4.02(c) with respect to any Mortgage Loan that is not a
Specially Serviced Mortgage Loan (subject to 4.08(d) and except for NSF check
charges which may be retained by the Master Servicer for any Mortgage Loan)
and as otherwise permitted under this Agreement.
Notwithstanding anything herein to the contrary, Midland
may at its option assign or pledge to any third party or retain for itself
the Transferable Servicing Interest; provided, however, that in the event of
any resignation or termination of Midland as Master Servicer hereunder, all
or any portion of the Transferable Servicing Interest may be reduced by the
Trustee to the extent reasonably necessary (in the sole discretion of the
Trustee) for the Trustee to obtain a qualified successor Master Servicer
(which successor may include the Trustee) that meets the requirements of
Section 3.10 and who requires market rate servicing compensation that
accrues at a per annum rate in excess of the Minimum Master Servicing Fee
Rate. The Master Servicer shall pay the Transferable Servicing Interest to
the holder of the Transferable Servicing Interest (i.e., Midland or any such
third party) at such time and to the extent the Master Servicer is entitled
to receive payment of its Master Servicing Fees hereunder, notwithstanding
any resignation or termination of Midland hereunder.
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 the lesser of (a)
any excess of any Prepayment Interest Shortfall over the sum of any Prepayment
Interest Excess and any Prepayment Premiums available for such Distribution
Date and (b) the Master Servicing Fee for such Distribution Date calculated
assuming a Master Servicing Fee Rate of 0.02% per annum. The Master Servicer
shall be entitled to retain on any Distribution Date the lesser of (a) any
amounts by which its Master Servicing Fee 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
<PAGE>
[RESERVED]
ARTICLE VI
<PAGE>
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 substantially 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 substantially 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
substantially in the form of Exhibit U hereto notifying the related Mortgagor
that servicing has been transferred to the Special Servicer.
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. Servicing 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 provided, however, with respect to any such modification, waiver or
amendment, the Special Servicer has determined in its reasonable judgement
that such modification, waiver or amendment is expected to increase the
recovery value of the related Mortgage Loan on a net present value basis.
Notwithstanding the foregoing, the Special Servicer shall not release,
substitute, or add any Mortgaged Property, except as otherwise provided in
the related Mortgage Loan Documents, unless such Special Servicer shall have
obtained written confirmation from S&P stating that upon such release none of
the then-current rating or ratings of all outstanding classes of the
Certificates would be qualified, downgraded or withdrawn by S&P as a result
thereof. 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 Rated 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 3.15. 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 Directing 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; provided,
however, the Special Servicer shall implement the last submitted Asset
Strategy Report if 60 days have elapsed since the Mortgage Loan has become a
Specially Serviced Mortgage Loan. 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 from the Trust Fund 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 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 not later then the end of the third calendar year
following the year of acquisition 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. Subject to Section 6.04(e), 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) Subject to clause (e) below, 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
(other than an Independent Contractor) 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.
(d) The Special Servicer shall, prior to the acquisition of
title to any Mortgaged Property, review the operations of such property
securing a defaulted loan and determine the character of the income that the
Trust Fund would realize if the Trust Fund acquired title to such Mortgaged
Property. The Special Servicer shall undertake this analysis with a view to
retaining the status of the REO Property as foreclosure property under the
REMIC provisions while maximizing the net after-tax REO Proceeds received
without materially adversely affecting the Special Servicer's ability to sell
such REO Property.
(e) If the Special Servicer determines, in its good faith
and reasonable judgment, that if there are no other commercially feasible
means of operating such Mortgaged Property as REO Property without the Trust
Fund potentially or actually incurring an REO Tax it may Directly Operate the
Mortgaged Property; provided, however, that the Special Servicer shall have
prepared and delivered to the Trustee a written proposed plan regarding the
plan of operations, the estimated income (and character thereof) derived
therefrom, the estimated amount of taxes payable on such income and such
other information as is necessary to make a reasoned judgment as to whether
the REO Property will remain a foreclosure property and whether such plan is
likely to maximize the net after tax REO income to the Trust Fund. Within a
reasonable period of time after receipt of such proposed plan, the Trustee
shall agree or disagree with the related tax position. The Special Servicer
shall avoid subjecting the income from such Mortgaged Property to tax as
either "net income from foreclosure property" or a "prohibited transaction"
within the meaning of the REMIC Provisions (an "REO Tax") to the maximum
extent possible.
Neither the Special Servicer nor the Trustee shall be liable
to the Certificateholders, the Trust Fund or the other parties to this
Agreement or each other for errors in judgment made in good faith in the
exercise of their discretion while performing their respective
responsibilities under this Section.
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 offer if the Special
Servicer determines, in accordance with the servicing standard set forth in
Section 6.01, that rejection of such offer would be in the best interests of
the Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the servicing standard stated in
Section 6.01, that acceptance of such offer would be in the best interests of
the Certificateholders (for example, if the prospective buyer making the lower
offer is more likely to perform its obligations, or the terms offered by the
prospective buyer making the lower offer are more favorable).
In determining whether any offer 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 offer 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.
(b) Subject to Accepted Special Servicing Practices, 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.
(c) The proceeds of any sale after deduction of the expenses
of such sale incurred in connection therewith shall be promptly remitted by
the Special Servicer to the Master Servicer for deposit 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 may be retained by the Special Servicer as
additional servicing compensation. 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 within one
Business Day after receipt.
(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 or prior to 1:00 p.m., Boston Time, on the second
Business Day immediately preceding 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 Report and
REO Status Report substantially 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 or Realized
Loss 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 or Realized Loss.
(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 substantially 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, or upon the Trustee's reasonable request, 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 inconsistencies in the reports provided by the Special
Servicer pursuant to Section 6.09, 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 or prior
to 1:00 p.m., Boston time, on the second Business Day immediately preceding
the Master Remittance Date for deposit into the related Collection Account, a
P&I Advance; 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 (i) 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 (ii) 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, or upon receipt of notice from the Master Servicer
that the Master Servicer has made a P&I Advance that was required to be made
by the Special Servicer, 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, which notice shall be included in the Asset Strategy Report
pursuant to Section 6.03(c). 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 paid by
the Special Servicer as 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 in the Asset Strategy Report pursuant to Section
6.03(c) as it deems in good faith to be in the best economic interests of the
Certificateholders.
(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 substantially 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 substantially in
the form of Exhibit X hereto, with a copy to the Master Servicer, notifying
the related Mortgagor that such Mortgage Loan has ceased being a Specially
Serviced Mortgage Loan and instructing such Mortgagor to direct all future
notices and communications to the Master Servicer.
(c) In the event that a Specially Serviced Mortgage Loan
ceases to be such pursuant to this Section 6.12, not later than five (5)
Business Days after notice has been given in (a) above the Special Servicer
shall provide the Master Servicer with copies of all information, documents
and records (including records stored electronically on computer tapes,
magnetic disks and the like) in its possession relating to such Mortgage
Loan. Upon receipt of such notice and all information, documents and records
by the Master Servicer pursuant to Section 6.02(c) hereof, such Mortgage Loan
shall cease to be a Specially Serviced Mortgage Loan, the Special Servicer's
obligation to service such Mortgage Loan shall terminate, and all duties and
obligations of the Master Servicer with respect to such Mortgage Loan to the
extent set forth herein previously assumed by the Special Servicer shall be
reassumed by the Master Servicer.
Section 6.13 Special Servicer Compensation.
The Special Servicer shall be entitled to reasonable
compensation for services rendered by it hereunder on each Master Remittance
Date from amounts in the Trust Fund in an amount equal to 1.00% of all amounts
collected on each Mortgage Loan for the period beginning immediately following
the date on which such Mortgage Loan became a Specially Serviced Mortgage
Loan.
The Special Servicer shall also be entitled to receive as
part of its servicing compensation net investment income pursuant to Section
6.06(c) and certain fees described in clause (2) of Section 4.02(c) with
respect to any Specially Serviced Mortgage Loan (subject to 4.08(d) and except
for NSF check charges) and as otherwise permitted under this Agreement.
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;
provided, however, if the related Mortgagor indicates that it can make
payments of principal but not payments of Excess Interest, the Special
Servicer shall have the right to waive or modify the required payment of
Excess Interest. Subject to the related Mortgage Loan Documents, 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 use its best efforts consistent
with Accepted Special Servicing Practices to 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 terminated 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 termination; 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. Subject to clause
(c) below, the Replacement Special Servicer shall be entitled to the Special
Servicing Fee for all other Specially Serviced Mortgage Loans.
(c) Notwithstanding the replacement of a Special Servicer
pursuant to clause (a) above, the terminated Special Servicer shall be
entitled to receive (i) 50% of the Special Servicing Fee for any Mortgage
Loan which became a Specially Serviced Mortgage Loan and was not subsequently
returned to a performing status prior to such termination and (ii) all
amounts accrued and owing to it under this Agreement prior to the effective
date of such resignation, including unreimbursed Advances with interest
thereon at the Advance Rate. The Replacement Special Servicer shall be
entitled to 50% of the Special Servicing Fee for such Specially Serviced
Mortgage Loans.
(d) The Directing Certificateholder shall be responsible for
paying any costs associated with such replacement, including reasonable costs
of any servicing transfer.
Section 6.17 Healthcare Adviser Loans.
(a) The Master Servicer shall prepare and deliver as part of
the Servicer Watch List to each Rating Agency a list of Healthcare Adviser
Loans (for which the Master Servicer has knowledge) in which the DSCR has
decreased by 20% or more from the DSCR in effect on the Cut-off Date.
(b) Promptly (but in no event later than five days) after
the Trustee has been notified that a Healthcare Adviser Loan has become a
Specially Serviced Mortgage Loan, the Trustee shall request the Directing
Certificateholder to appoint a Healthcare Adviser. If the Directing
Certificateholder does not appoint a Healthcare Adviser within five days of
such request, the Special Servicer shall use reasonable efforts to make such
appointment, provided that in no event will the appointment of the Healthcare
Adviser be later than 30 days following the Trustee's receipt of notice of
the Healthcare Adviser Loan becoming a Specially Serviced Mortgage Loan. The
Healthcare Adviser will provide the Special Servicer and the Directing
Certificateholder with advice with respect to the Healthcare Adviser Loan and
the related property as long as such Healthcare Adviser Loan remains a
Specially Serviced Mortgage Loan.
(c) The Trustee and the Special Servicer shall deliver to
the Healthcare Adviser all reports and other information each has received
with respect to the related healthcare properties and Healthcare Adviser
Loans. The Special Servicer shall not take any material actions with respect
to any Healthcare Adviser Loan and the properties without first providing
notice to, and consulting with, the Healthcare Adviser; provided, however,
the Special Servicer shall not be required to take any actions pursuant to
such consultation if in its reasonable judgement such actions do not conform
to Accepted Special Servicing Practices.
(d) The Healthcare Adviser will be entitled to receive from
the Certificate Account the Healthcare Adviser Fee pursuant to Section
7.02(a). By its acceptance of a Certificate, each Certificateholder confirms
its understanding that the Healthcare Adviser may advise actions that favor
the interests of one or more Classes of the Certificates over other Classes
of the Certificates, and that the Healthcare Adviser may have special
relationships and interests that conflict with those of Holders of some
Classes of the Certificates.
ARTICLE VII
<PAGE>
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
and the amounts from the Interest Reserve Account pursuant to Section 3.17.
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, second to
payment of the Healthcare Adviser Fee, if any, and third, 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 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 Interest Distribution
Amount for such Distribution Date on the Class B
Certificates;
(vi) to distribution 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 is reduced to zero) for such
Distribution Date on the Class B Certificates,
until the Class Balance thereof is reduced to
zero;
(vii) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class C
Certificates;
(viii) 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;
(ix) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class D
Certificates;
(x) 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;
(xi) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class E
Certificates;
(xii) 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;
(xiii) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class F
Certificates;
(xiv) 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;
(xv) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class G
Certificates;
(xvi) 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;
(xvii) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class H
Certificates;
(xviii) 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;
(xix) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class
NR Certificates;
(xx) 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;
(xxi) sequentially to the Classes of Certificates,
whether or not outstanding, 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
(xxii) 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 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 or statement, the Trustee shall forward such written
request to the Master Servicer. To the extent such report or statement 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 (including the
calculation of the Prepayment Premium for any Mortgage Loan made pursuant to
Section 4.01(g)). The request, reproduction and delivery of such report or
statement, shall be at the expense of the requesting Certificateholder (or
Certificate Owner).
(b) The Trustee on behalf of the Depositor, shall 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, statements 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 or statements delivered to Certificateholders pursuant to
the first paragraph of clause (a) above, a copy of such reports or
statements. 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.
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, upon request, 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
provisions of Section 10.01 shall apply and the Trustee (a) may terminate all
of the rights and obligations of the Master Servicer under this Agreement in
accordance with Section 10.01, (b) may assume the rights and obligations of
the Master Servicer hereunder in accordance with Section 10.02, and (c) shall
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.
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 and Class A2 Certificates, pro rata, until their respective Class
Balances have been reduced to zero. 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
<PAGE>
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 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 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 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
<PAGE>
THE DEPOSITOR
Section 9.01 Liability of the Depositor.
The Depositor shall be liable in accordance herewith only to
the extent of the obligations specifically imposed upon and undertaken by the
Depositor herein.
Section 9.02 Merger, Consolidation or Conversion of the Depositor.
Subject to the following paragraph, the Depositor will keep
in full effect its existence, rights and franchises as a corporation under the
laws of the jurisdiction of its incorporation, and will obtain and preserve
its qualification to do business as a foreign corporation in each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and enforceability of this Agreement, the Certificates or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
The Depositor may be merged or consolidated with or into any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which the
Depositor, shall be a party, or any Person succeeding to the business of the
Depositor, shall be the successor of the Depositor hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 9.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers,
employees or agents shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor or any such Person against any breach of warranties or
representations made herein, or against any liability which would otherwise be
imposed by reason of misfeasance, bad faith or negligence in the performance
of duties. The Depositor and any director, officer, employee or agent thereof
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
respective duties under this Agreement and in its opinion does not involve it
in any expense or liability.
ARTICLE X
<PAGE>
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) Fitch 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 or a
Servicer is no longer approved as a Servicer by
S&P;
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, or (b) in the case of any Event of Default
described in clauses (ix) through (xi) hereof, at least 25% of all of the
Voting Rights, subject to Section 3.10, 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 or the Special
Servicer receives a notice of termination pursuant to Section 10.01, the
Trustee shall be the successor in all respects to such 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 such Servicer by the terms and provisions
hereof; provided, however, that any failure to perform such duties or
responsibilities caused by such 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 the Special Servicer
or for any losses incurred by such Servicer hereunder. As compensation
therefor, the Trustee shall be entitled to the servicing fees and all funds
relating to the Mortgage Loans which such Servicer would have been entitled to
charge to the Trust Fund if such Servicer had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so
act, or shall, if it is unable to so act or such Trustee is not an approved
Servicer, or if the Holders of Certificates entitled to at least more than
66 2/3% of the Voting Rights so request in writing to the Trustee, promptly
appoint a successor pursuant to Section 3.10. Pending appointment of a
successor to the Master Servicer or the Special 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
<PAGE>
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 Master Servicer, the Special
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;
(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 0.0035% 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.
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, by S&P) 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; provided, however, a
confirmation from Fitch shall be required if there is a downgrade of any
long-term debt obligation of the Trustee. 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 a Fitch confirmation) 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 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, 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 overnight 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 substantially 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). No later than January 30, 2000, the
Trustee shall file a Form 15 Notice of Suspension of Duty to File Reports
pursuant to Sections 13 and 15(d) of the Securities Exchange Act of 1934, with
respect to the Certificates. The Trustee shall have no responsibility to file
any items other than those specified in this Section 11.16.
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
<PAGE>
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 together with any
unreimbursed Advances (including any 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
<PAGE>
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 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 Midland Loan Services, Inc. as
Master Servicer and Special Servicer, Midland Loan Services, Inc., 210 West
10th Street, 6th Floor, Kansas City, Missouri, Attention: President,
telephone number: 816-435-5000, telecopy number: 816-435-2326; (iii) 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 1999-C7, telephone
number: (617) 664-5473, telecopy number: (617) 664-5370; 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) This Agreement shall not be assigned, pledged or
hypothecated by any Servicer to a third party without the prior written
consent of the Trustee and subject to Section 3.06.
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,
(iv) monthly and annual Mortgage Loan level
reporting, including Comparative Financial
Status Report, Delinquent Loan Status Report,
REO Status Report, Historical Loan Modification
Report, Historical Loss Estimate Report, and
Servicer Watch List (including a separate
healthcare property list) in the form published
by the Commercial Real Estate Secondary Market
and Securitization Association or any successor
organization, reported pursuant to Sections
4.09, 4.10 and 6.09, and
(v) 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above written.
J.P. MORGAN COMMERCIAL MORTGAGE
FINANCE CORP.,
Depositor
By: /s/ Lawrence J. Blume
--------------------------------------
Name: Lawrence J. Blume
--------------------------------------
Title: Vice President
--------------------------------------
MIDLAND LOAN SERVICES, INC.,
Master Servicer and Special Servicer
By: /s/ Clarence A. Krantz
--------------------------------------
Name: Clarence A. Krantz
--------------------------------------
Title: Executive Vice President
--------------------------------------
STATE STREET BANK AND TRUST COMPANY,
Trustee
By: /s/ William G. Swan
--------------------------------------
Name: William G. Swan
--------------------------------------
Title: Vice President
--------------------------------------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 22nd day of April, 1999 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]
<PAGE>
STATE OF MISSOURI )
) ss.:
COUNTY OF JACKSON )
On the 22nd day of April, 1999 before me, a notary public in
and for said State, personally appeared Clarence A. Krantz known to me to be
an Executive Vice President of Midland Loan Services, Inc., 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/ Jill Ann Palmer
----------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 22nd day of April, 1999, 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]
<PAGE>
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(b)[(i), (iii) or (iv)][(ii)] 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.]
<PAGE>
CLASS [ ] [PRIVATE][REGULATION S GLOBAL]
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 1999-C7
[Original Class Balance][Initial Aggregate Notional
Amount]: $[_________]
Date of Pooling and Servicing Agreement: [Initial [Certificate
April 1, 1999 Balance][Notional Amount] of this
Class [ ] Certificate as of the
Delivery Date: $____________]
Cut-off Date: April 1, 1999
Delivery Date: April 22, 1999 [Percentage Interest: ____%]
First Distribution Date: May 17, 1999 Pass-Through Rate:
[__%][Variable]
Master Servicer: Midland Loan Trustee: State Street Bank and
Services, Inc. Trust Company
No. [__] [ISIN No.: US617059 _______]
CUSIP No.: 617059 [___]
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN J.P.
MORGAN COMMERCIAL MORTGAGE FINANCE CORP. OR ANY OF ITS AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, A PORTION OF THE INTEREST
ACCRUED IN RESPECT OF THIS CERTIFICATE FROM TIME TO TIME MAY NOT BE PAYABLE
CURRENTLY BUT MAY INSTEAD BE ADDED TO THE CERTIFICATE BALANCE HEREOF AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE HEREOF AT ANY
TIME MAY BE 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 April 1, 1999 (the
"Agreement"), among J.P. Morgan Commercial Mortgage Finance Corp., as
depositor (hereinafter called the "Depositor", which term includes any
successor entity under the Agreement), Midland Loan Services, Inc., as master
servicer (the "Master Servicer", which term includes any successor entity
under the Agreement) and 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 substantially 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 together with any unreimbursed Advances (including any
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.
<PAGE>
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
<PAGE>
EXHIBIT B
FORM OF ASSET STRATEGY REPORT
<PAGE>
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 1999-C7, 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 April 1, 1999,
among J.P. Morgan Commercial Mortgage Finance Corp., as depositor, Midland
Loan Services, Inc., as master servicer and 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: ___________
<PAGE>
EXHIBIT D-1
FORM OF INVESTMENT LETTER --
QUALIFIED INSTITUTIONAL BUYER
[Date]
[Purchaser]
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 1999-C7, [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 April 14, 1999, 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 April 1, 1999 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
<PAGE>
EXHIBIT D-2
FORM OF INVESTMENT LETTER --
REGULATION S
[Date]
[Purchaser]
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 1999-C7, [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 April 14, 1999, 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 April 1, 1999 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
<PAGE>
EXHIBIT D-3
FORM OF INVESTMENT LETTER --
RULE 144A
[Date]
[Purchaser]
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 1999-C7, [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 April 14, 1999, 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 April 1, 1999 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
<PAGE>
EXHIBIT E
FORM OF INVESTMENT LETTER --
ACCREDITED INVESTOR
[Date]
[Purchaser]
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 1999-C7, [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 April 14, 1999, 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 April 1, 1999 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
<PAGE>
EXHIBIT F-1
FORM OF TRANSFER AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
1. He is the [Title of Officer] of [Name of Owner] (the record or
beneficial owner (the "Owner") of J.P. Morgan Commercial Mortgage Finance
Corp., Mortgage Pass-Through Certificate, Series 1999-C7, 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__.
<PAGE>
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
1999-C7, 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:
<PAGE>
EXHIBIT G
MORTGAGE LOAN SCHEDULE
<PAGE>
EXHIBIT H-1
HEALTHCARE ADVISER LOANS
Mortgage Loan Number 63
Mortgage Loan Number 122
<PAGE>
EXHIBIT H-2
CONGREGATE CARE LOANS
Mortgage Loan Number 3
Mortgage Loan Number 16
Mortgage Loan Number 52
<PAGE>
EXHIBIT I
FORM OF LOAN SALE AGREEMENT
<PAGE>
EXHIBIT K
FORM OF REPORTS
<PAGE>
EXHIBIT L
FORM OF PRELIMINARY SERVICER LETTER PURSUANT TO SECTION 4.01(e)
<PAGE>
EXHIBIT "L"
PRIMARY SERVICER STATIONERY
Date
Mortgagor's Name
Mortgagor's Address
Re: Transfer of Servicing of Loan in the Name of
[Mortgagor's Name], Loan [Mortgagor's Primary Loan ID
Number]
Dear [Mortgagor]:
Please be advised that the servicing of the above referenced
loan has been returned to ["Primary Servicer's Name"].
Please continue to remit all payments to ["Primary
Servicer's Name"]. ["Primary Servicer's Name"] will continue to process your
checks and maintain the accounting records for this loan. Please remember to
use the above ["Primary Servicer's Name"] Loan Number when communicating with
us and making your payments to ["Primary Servicer's Name"].
Should you have any questions, please call
_________________________ or write at the following address:
Primary Servicer's Name
Primary Servicer's Address
Sincerely,
cc: ["Special Servicer's Name"]
<PAGE>
EXHIBIT M
FORM OF PROPERTY INSPECTION REPORT PURSUANT TO SECTION 4.09(A)
[STANDARD COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION
ASSOCIATION REPORTS (CSSA) REPORTS AS OF THE CLOSING DATE]
<PAGE>
EXHIBIT N
FORM OF SUMMARY OF OPERATING STATEMENTS AND RENT ROLLS PURSUANT
TO SECTION 4.09(B)
[STANDARD COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION
ASSOCIATION REPORTS (CSSA) REPORTS AS OF THE CLOSING DATE]
<PAGE>
EXHIBIT O
FORM OF REMITTANCE REPORT PURSUANT TO SECTION 4.10(A)
[STANDARD COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION
ASSOCIATION REPORTS (CSSA) REPORTS AS OF THE CLOSING DATE]
<PAGE>
EXHIBIT P
FORM OF DETAILED LOAN INDICATIVE DATA FILE PURSUANT TO SECTION 4.10(A)
[STANDARD COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION
ASSOCIATION REPORTS (CSSA) REPORTS AS OF THE CLOSING DATE]
<PAGE>
EXHIBIT Q
[RESERVED]
<PAGE>
EXHIBIT R
[RESERVED]
<PAGE>
EXHIBIT S
FORM OF NOTICE REGARDING TRANSFER TO SPECIAL SERVICING PURSUANT TO
SECTION 6.02(a)
<PAGE>
EXHIBIT "S"
PRIMARY SERVICER STATIONERY
Date
Trustee Name and Address
Depositor Name and Address
Master Servicer Name and Address
Special Servicer Name and Address
Re: Transfer of Servicing of Loan in the Name of
[Mortgagor's Name], Loan [Mortgagor's Primary ID Number]
Dear Sir/Madam:
Please be advised that the servicing of the above-referenced
loan will be transferred to ["Special Servicer's Name"] for special servicing
as of the date of this letter. This loan is being transferred to ["Special
Servicer's Name"] for servicing the following noted reason:
1. The loan has become a Defaulted Mortgage Loan;
2. The Mortgagor has entered into or consented to bankruptcy,
appointment of a receiver or conservator or a similar
insolvency or a similar proceeding, or the Mortgagor has
become a subject of a decree or order for such a proceeding
which shall have remained in force on discharged or unstayed
for a period of 6 days;
3. Either ["Special Servicer's Name"] or ["Primary Servicer's
Name"] has received notice of the foreclosure or proposed
foreclosure of any other lien on the Mortgaged Property;
4. In the judgment of ["Special Servicer' s Name"] or ["Primary
Servicer's Name"], a payment default has occurred or is
imminent and is not likely to be cured by the related
Mortgagor within sixty (60) days;
5. The related Mortgagor has admitted in writing its inability
to pay its debts generally as they become due, has filed a
petition to take advantage of any applicable insolvency or
reorganization statute, made an assignment for the benefit
of its creditors, or voluntarily suspended payment of its
obligations;
6. With respect to a Balloon Mortgage Loan, the related
Mortgagor, in response to a letter from ["Primary Servicer's
Name"] pursuant to Section 4.11 of the Servicing Agreement,
has requested either an extension of the related Maturity
Date of any other modification or has otherwise indicated
the inability to make the payment due on such Maturity Date,
or has failed to respond within thirty (30) days after the
3-months' notice letter referenced in Section 4.11 of the
Servicing agreement;
7. Any other material default has, in ["Special Servicer's
Name"]'s judgment or ["Primary Servicer's Name"]'s judgment,
occurred which is not reasonably susceptible of cure within
the time periods and on the terms and conditions, if any,
provided in the related Mortgage;
8. the related Mortgaged Property has become REO Property; or
9. If for any reason, ["Primary Servicer's Name"] cannot
enter into an assumption agreement pursuant to section
4.08 of the Servicing Agreement.
All capitalized terms used herein shall have the same
meaning as defined in, and all references to the "Servicing Agreement' shall
refer to, the Servicing Agreement among ["Special Servicer's Name"], ["Primary
Servicer's Name"], and the Initial Owner, Morgan Guaranty Trust Company of New
York.
Sincerely,
By:_______________________
Name:_____________________
Title:____________________
<PAGE>
EXHIBIT T
FORM OF SPECIAL SERVICER LETTER PURSUANT TO SECTION 6.02(b)
<PAGE>
EXHIBIT "T"
PRIMARY SERVICER STATIONERY
Date
Trustee Name and Address
Depositor Name and Address
Master Servicer Name and Address
Special Servicer Name and Address
Re: Transfer of Servicing of Loan in the Name of [Mortgagor's
Name], Loan [Mortgagor's Primary ID Number]
Dear Sir/Madam:
Please be advised that the servicing of the above-referenced
loan will be transferred to ["Special Servicer's Name"] for special servicing
as of the date of this letter. This loan is being transferred to ["Special
Servicer's Name"] for servicing the following noted reason:
10. The loan has become a Defaulted Mortgage Loan;
11. The Mortgagor has entered into or consented to bankruptcy,
appointment of a receiver or conservator or a similar
insolvency or a similar proceeding, or the Mortgagor has
become a subject of a decree or order for such a proceeding
which shall have remained in force on discharged or unstayed
for a period of 6 days;
12. Either ["Special Servicer's Name"] or ["Primary Servicer's
Name"] has received notice of the foreclosure or proposed
foreclosure of any other lien on the Mortgaged Property;
13. In the judgment of ["Special Servicer' s Name"] or ["Primary
Servicer's Name"], a payment default has occurred or is
imminent and is not likely to be cured by the related
Mortgagor within sixty (60) days;
14. The related Mortgagor has admitted in writing its inability
to pay its debts generally as they become due, has filed a
petition to take advantage of any applicable insolvency or
reorganization statute, made an assignment for the benefit
of its creditors, or voluntarily suspended payment of its
obligations;
15. With respect to a Balloon Mortgage Loan, the related
Mortgagor, in response to a letter from ["Primary Servicer's
Name"] pursuant to Section 4.11 of the Servicing Agreement,
has requested either an extension of the related Maturity
Date of any other modification or has otherwise indicated
the inability to make the payment due on such Maturity Date,
or has failed to respond within thirty (30) days after the
3-months' notice letter referenced in Section 4.11 of the
Servicing agreement;
16. Any other material default has, in ["Special Servicer's
Name"]'s judgment or ["Primary Servicer's Name"]'s judgment,
occurred which is not reasonably susceptible of cure within
the time periods and on the terms and conditions, if any,
provided in the related Mortgage;
17. the related Mortgaged Property has become REO Property; or
18. If for any reason, ["Primary Servicer's Name"] cannot
enter into an assumption agreement pursuant to section
4.08 of the Servicing Agreement.
All capitalized terms used herein shall have the same
meaning as defined in, and all references to the "Servicing Agreement' shall
refer to, the Servicing Agreement among ["Special Servicer's Name"], ["Primary
Servicer's Name"], and the Initial Owner, Morgan Guaranty Trust Company of New
York.
Sincerely,
By:_______________________
Name:_____________________
Title:____________________
<PAGE>
EXHIBIT U
FORM OF SPECIAL SERVICER LETTER PURSUANT TO SECTION 6.02(e)
<PAGE>
EXHIBIT "U"
SPECIAL SERVICER STATIONERY
Date
Mortgagor's Name
Mortgagor's Address
Re: Transfer of Servicing of Loan in the Name of [Mortgagor's
Name], Loan [Mortgagor's Primary Loan ID Number]
Dear [Mortgagor]:
Your loan has been transferred to ["Special Servicer Name"]
("Special Servicer") for Special Servicing. After we review your records, we
will be contacting you soon.
Please continue to remit all payments to ["Primary
Servicer's Name"] while your loan is being serviced by ("Special Servicer").
["Primary Servicer's Name"] will continue to process your checks and maintain
the accounting records for this loan. The acceptance of any payments by
["Primary Servicer's Name"] does not constitute any agreement to modify or
amend your loan in any way.
A ("Special Servicer") employee will contact you shortly to
discuss what options are available to you at this time. Should you have any
questions regarding your loans, please contact ("Special Servicer")'s
toll-free Customer Service number ["Customer Service Number"], or write to
("Special Servicer") at the following address. Please remember to use the
above ["Primary Servicer's Name"] loan number when communicating with
("Special Servicer") and making your payments to ["Primary Servicer's Name"]
while ("Special Servicer") is servicing your loan:
["Special Servicer's Name"]
["Special Servicer's Address"]
Attention: Special Servicing
("Special Servicer") may be engaging third party firms to
perform property inspections as well as certain other analyses and studies on
property which serves as collateral for your loan. You may be contacted by
such third party firms to provide access to your property and other
information. We will appreciate your cooperation during this process and look
forward to completing these activities in the near future.
No statement, act, omission or course of dealing or conduct
on the part of the ["Primary Servicer's Name"] or ("Special Servicer"), or
both, shall be construed to alter or waive any default or any obligation under
applicable law and/or the documents pertaining to your loan; no agreement or
waiver shall be binding on ["Primary Servicer's Name"] or ("Special Servicer")
unless reduced to writing and signed by an employee duly authorized to do so;
and neither delay in nor failure of [Primary Servicer's Name] or ("Special
Servicer") to exercise any right, power or privilege under any loan document
shall operate as a waiver thereof, and no single or partial exercise of any
right, power or any privilege shall preclude any other and further exercise
thereof or the exercise of any right, power or privilege.
Sincerely,
By:_______________________
Name:_____________________
Title:____________________
ATTENTION TO ANY DEBTOR IN BANKRUPTCY OR WHO HAS RECEIVED A DISCHARGE IN
BANKRUPTCY OR WHO MAY HAVE PAID, SETTLED OR IS OTHERWISE NOT OBLIGATED: Please
be advised that this letter constitutes neither a demand for payment of the
captioned debt nor a notice of personal liability to any recipient hereof who:
might have received a discharge of such debt in accordance with applicable
bankruptcy laws or who might be subject to the automatic stay of Section 362
of the United States Bankruptcy Code, has paid, settled, or is otherwise not
obligated by law.
cc: ("Special Servicer")
<PAGE>
EXHIBIT V
FORM OF SPECIALLY SERVICED MORTGAGE LOAN AND REO STATUS REPORT
PURSUANT TO SECTION 6.09(A)
[STANDARD COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION
ASSOCIATION REPORTS (CSSA) REPORTS AS OF THE CLOSING DATE]
<PAGE>
EXHIBIT W
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(a)
<PAGE>
EXHIBIT "W"
SPECIAL SERVICER STATIONERY
Date
Trustee
Trustee Owner's Address
Master Servicer
Master Servicer's address
Primary Servicer
Primary Servicer's Address
Re: Transfer of Servicing of Mortgage Loan in the Name of [Mortgagor's
Name], Loan [Mortgager's Number]
Dear [Mortgagor]:
Please be advised that the servicing of the above referenced Mortgage Loan
will be returned to ["Primary's Name"] as of [Date]. This Mortgage Loan is
being returned for the following reason:
_____ 1. Request from Master Servicer that the
Mortgage Loan be returned based on receipt of
information which resulted in the Mortgage Loan
not being considered a Specially Serviced
Mortgage Loan.
_____ 2. The Mortgage Loan is current as to payments of
principal and interest. No Servicing Transfer
Event is continuing. Three Monthly Payments
have been made in accordance with the terms of
the related Mortgage Note for the months of
[List Months], [Year].
_____ 3. Other:
All capitalized terms, unless otherwise defined, shall have the meanings set
forth in the Servicing Agreement among the above addresses and the
undersigned.
Very truly yours,
Name of Special Servicer Servicing Officer and Title
<PAGE>
EXHIBIT X
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(b)
<PAGE>
EXHIBIT "X"
SPECIAL SERVICER STATIONERY
Date
Mortgagor's Name
Mortgagor's Address
Primary Servicer's Name
Primary Servicer's Address
Re: Transfer of Servicing of Loan in the Name of [Mortgagor's
Name], Loan [Mortgager's Primary ID Number]
Dear Sir or Madam:
Please be advised that the servicing of the above-referenced
loan will be returned to [Primary Servicer's Name] for servicing as of the
date of this letter. This loan is being returned to ["Primary Servicer's
Name"] for servicing for the following reason:
1. The loan has been current in payments under existing
terms for three consecutive monthly payments.
2. The loan is returned to ["Primary Servicer's Name"] based
upon receipt of information which resulted in the loan not
being considered a Specially Serviced Mortgage Loan.
3. The loan has been modified and the three consecutive monthly
payments have been made in accordance with the terms of the
modified mortgage note.
4. Other:
Please continue to remit all payments to ["Primary
Servicer's Name"]. ["Primary Servicer's Name"] will continue to process your
checks and maintain the accounting records for this loan. Please remember to
use the above ["Primary Servicer's Name"] Loan Number when communicating with
us and making your payments to ["Primary Servicer's Name"].
<PAGE>
Please acknowledge receipt of this letter by signing the
enclosed copy and return it to my attention.
Sincerely,
By:_______________________
Name:_____________________
Title:____________________
cc: ["Primary Servicer's Name"]
Borrower Acknowledgment
By:
Name:
Title:
Date:
<PAGE>
EXHIBIT Y
FORM OF REQUEST FOR RELEASE AND RECEIPT OF DOCUMENTS PURSUANT TO
SECTION 11.14(b)
<PAGE>
EXHIBIT "Y"
REQUEST FOR RELEASE AND
RECEIPT OF DOCUMENTS
Date
To: State Street Bank and Trust Company
225 Franklin Street
Boston, MA 02110
Re: Custodial Agreement, dated as of August 4, 1994, as amended and
restated as of ______, 1995, by and between Mortgage Guaranty Trust
Company of New York and State Street Bank and Trust Company
In connection with the administration of the Mortgage Loans
held by you as the Custodian for the Company, we request the release of the
(Custodian's Mortgage File/[specify documents]) for the Mortgage Loan
described below, for the reason indicated. The undersigned agrees to
acknowledge receipt of such Mortgage Loan file promptly upon receipt.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number
Reason for Requesting Documents (check one)
_____ 1. Mortgage Loan paid in full. (Servicer hereby certifies that
all amounts received in connection therewith have been
credited or will be escrowed as provided in the Servicing
Agreement.)
_____ 2. Mortgage Loan Liquidated. (Servicer hereby certifies that
all proceeds of foreclosure, insurance or other liquidation
have been finally received and credited to or will be escrowed
pursuant to the Servicing Agreement.)
_____ 3. Mortgage Loan in Foreclosure.
_____ 4. Other (explain)
If item 1 or 2 above is checked, and if all or part of the
Custodian's Mortgage File was previously released to us, please release to us
our previous receipt on file with you, as well as any additional documents in
your possession relating to the above specified Mortgage Loan. If item 3 or 4
is checked, upon our return of all of the above documents to you as Custodian,
please acknowledge your receipt by signing in the space indicated below, and
returning this form.
[Servicer]
By:_______________________
Name:_____________________
Title:____________________
Date:_____________________
Documents returned to Custodian:
State Street Bank and Trust Company
By:
Name:
Title:
Date:
<PAGE>
EXHIBIT Z
REO ACCOUNT LETTER PURSUANT TO SECTION 6.09(B)
<PAGE>
EXHIBIT Z
REO ACCOUNTS REPORT
FROM (DAY AFTER PRIOR PRIMARY REMITTANCE DATE)
TO AND INCLUDING (CURRENT PRIMARY REMITTANCE DATE) Account #
BEGINNING BALANCE $0.00
COLLECTIONS:
DELINQUENT PAYMENTS $0.00
PAYMENTS FOR CURRENT DUE PERIOD
(Includes net liquidation proceeds & prepayments)
PAYMENTS FOR FUTURE DUE PERIODS $0.00
PRIMARY SERVICER ADVANCES $0.00
LIQUIDATION PROCEEDS - To be applied to servicer Advances $0.00
LATE FEES/PREPAYMENT PREMIUMS $0.00
UNAPPLIED FUNDS $0.00
LOANS IN PROCESS $0.00
INVESTMENT INCOME - Due to Primary Servicer $0.00 _____
TOTAL COLLECTIONS $0.00
=====
DISBURSEMENTS:
TRANSFER TO ESCROW $0.00
SERVICE FEES $0.00
MASTER SERVICER REMITTANCE $0.00
PRINCIPAL ADVANCE REIMBURSEMENTS $0.00
INTEREST ADVANCE REIMBURSEMENTS $0.00
SERVICER ADVANCE REIMBURSEMENTS $0.00
ADVANCE INTEREST (Due and collected) $0.00
INVESTMENT INCOME - Due Primary Servicer $0.00 _____
TOTAL DISBURSEMENTS $0.00
=====
