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) August 1, 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 August 1, 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/ Lawrence J. Blume
----------------------------
Name: Lawrence J. Blume
Title: Vice President
Dated: August 31, 1999
<PAGE>
Exhibit Index
-------------
Exhibit Page
- ------- ----
99. Pooling and Servicing Agreement 6
<PAGE>
EXHIBIT 99
----------------------------------------------------------------------
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 August 1, 1999
--------------------------------
$731,516,500
Mortgage Pass-Through Certificates
Series 1999-C8
----------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITION..................................3
Section 1.01 Defined Terms.................................................3
Accepted Servicing Practices...........................................3
Accepted Special Servicing Practices...................................4
Acquisition Date.......................................................4
Adjusted Available Distribution Amount.................................4
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
Canadian Loans.........................................................7
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...................................................8
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 J Certificate....................................................8
Class NR Certificate...................................................8
Class Portion..........................................................8
Class Prepayment Fraction..............................................9
Class R-I Certificate..................................................9
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.....................................11
Collection Account....................................................11
Collection Period.....................................................11
Condemnation Proceeds.................................................11
Corporate Trust Office................................................11
CSSA SIP..............................................................12
Custodian.............................................................12
Cut-off Date..........................................................12
Cut-off Date Balance..................................................12
DCR...................................................................12
Defaulted Mortgage Loan...............................................12
Defeasance Collateral"................................................12
Deficient Valuation...................................................12
Definitive Certificate................................................12
Delivery Date.........................................................13
Depositor.............................................................13
Depository............................................................13
Depository Participant................................................13
Detailed Loan Indicative Data File....................................13
Determination Date....................................................13
Directing Certificateholder...........................................13
Directly Operate......................................................13
Disqualified Organization.............................................14
Distribution Date.....................................................14
DSCR..................................................................14
Due Date..............................................................14
Eligible Account......................................................14
Environmental Laws....................................................15
Escrow Account........................................................16
Escrow Payments.......................................................16
Event of Default......................................................16
Excess Cash Flow......................................................16
Excess Condemnation Proceeds..........................................16
Excess Insurance Proceeds.............................................16
Excess Interest.......................................................17
Excess Rate...........................................................17
FDIC..................................................................17
Final Certification...................................................17
Final Recovery Determination..........................................17
Foreign Currency Exchange Contract....................................17
F/X Assignment Agreement..............................................17
F/X Counterparty......................................................17
F/X Market Rate.......................................................18
F/X Payment Date......................................................17
Hazardous Materials...................................................18
Holder................................................................18
Independent...........................................................18
Initial Subservicer...................................................19
Insurance Policy......................................................19
Insurance Proceeds....................................................19
Interest Accrual Amount...............................................19
Interest Distribution Amount..........................................19
Interest Reserve Account..............................................20
Interest Reserve Loan.................................................20
Interested Person.....................................................20
Law...................................................................20
Liquidation Event.....................................................20
Liquidation Proceeds..................................................20
Loan Sale Agreement...................................................20
Loss Mortgage Loan....................................................21
MAI...................................................................21
Master Remittance Date................................................21
Master Servicer.......................................................21
Master Servicing Fee..................................................21
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.......................................................22
Moody's...............................................................22
Mortgage..............................................................22
Mortgage Loan.........................................................22
Mortgage Loan Documents...............................................22
Mortgage Loan File....................................................22
Mortgage Loan Schedule................................................22
Mortgage Loan Seller..................................................23
Mortgage Note.........................................................23
Mortgage Rate.........................................................23
Mortgaged Property....................................................23
Mortgagor.............................................................23
Most Subordinate Class of Certificates................................23
Net Prepayment Premium................................................23
Nonrecoverable Advance................................................23
Nonrecoverable Advance Certificate....................................23
Non-United States Person..............................................24
Non-U.S. Treasury Net Prepayment Premium..............................24
Notional Amount.......................................................24
NRSRO.................................................................24
Officers'Certificate..................................................24
Operating Statements and Rent Rolls Repor.............................24
Opinion of Counsel....................................................24
Original Class Balance................................................24
Ownership Interest....................................................24
P&I Advance...........................................................25
Pass-Through Rate.....................................................25
Payment Reserve.......................................................25
Percentage Interest...................................................25
Permitted Investments.................................................25
Person................................................................26
Pool Factor...........................................................26
Prepayment Assumption.................................................26
Prepayment Interest Excess............................................27
Prepayment Interest Shortfall.........................................27
Prepayment Premium....................................................27
Primary Servicing Fees................................................27
Prime Rate............................................................27
Principal Distribution Amount.........................................27
Principal Prepayment..................................................28
Private Certificates..................................................28
Property Improvement Expenses.........................................28
Property Inspection Report............................................28
Property Protection Expenses..........................................28
Purchase Price........................................................29
Qualified Insurer.....................................................29
Rated Final Distribution Date.........................................30
Rating Agency.........................................................30
Realized Loss.........................................................30
Record Date...........................................................30
REMIC.................................................................31
REMIC I...............................................................31
REMIC I Uncertificated Interests......................................31
REMIC II..............................................................31
REMIC II Uncertificated Interests.....................................31
REMIC III.............................................................31
REMIC Provisions......................................................31
Remittance Period.....................................................31
Remittance Rate.......................................................31
Remittance Report.....................................................32
Rents from Real Property..............................................32
REO Account...........................................................32
REO Acquisition.......................................................32
REO Mortgage Loan.....................................................32
REO Proceeds..........................................................32
REO Property..........................................................32
REO Status Report.....................................................33
REO Tax...............................................................33
Repair and Remediation Reserve........................................33
Replacement Reserve...................................................33
Replacement Special Servicer..........................................33
Request for Release and Receipt of Docume.............................33
Required Appraisal Date...............................................33
Required Rating.......................................................33
Residual Certificate..................................................34
Responsible Officer...................................................34
Review Threshold......................................................34
Revised Rate..........................................................34
S&P...................................................................34
Scheduled Principal Balance...........................................34
Security Agreement....................................................34
Servicer..............................................................34
Servicer Watch List...................................................34
Servicing Advance.....................................................35
Servicing Fee.........................................................35
Servicing Fee Rate....................................................35
Servicing Officer.....................................................35
Servicing Transfer Date...............................................35
Servicing Transfer Event..............................................35
Single-Purpose Entity"................................................35
Specially Serviced Mortgage Loan......................................36
Specially Serviced Mortgage Loan Status R.............................36
Special Servicer......................................................36
Special Servicing Fee.................................................36
Startup Day...........................................................36
State Tax Laws........................................................36
Stated Principal Balance..............................................36
Tax Matters Person....................................................37
Tax Returns...........................................................37
Tenant Improvement and Leasing Commission.............................38
Transfer Date.........................................................38
Trust Fund............................................................38
Trustee...............................................................38
Trustee Fee...........................................................38
Trustee Fee Rate......................................................38
UCC Financing Statement...............................................38
Uncertificated Interest I.............................................38
Uncertificated Interest II............................................38
Uncertificated Interest III...........................................38
Uncertificated Interest IV............................................38
Uncertificated Interest V.............................................39
Uncertificated Interest VI............................................39
Uncertificated Interest VII...........................................39
Uncertificated Interest VIII..........................................39
Uncertificated Interest IX............................................39
Uncertificated Interest X.............................................39
Uncertificated Interest XI............................................39
Uncertificated Interest XII...........................................39
Underwriter...........................................................39
United States Person..................................................39
U.S. Treasury Net Prepayment Premium..................................39
Voting Rights.........................................................40
Weighted Average Remittance Rate .....................................41
Withheld Amount ......................................................41
Section 1.02 Calculations ................................................41
Section 1.03 Rules of Construction .......................................41
Section 1.04 Canadian Loans ..............................................41
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES..43
Section 2.01 Conveyance of Mortgage Loans ................................43
Section 2.02 Acceptance by Trustee .......................................45
Section 2.03 Representations and Warranties of the Depositor, the
Master Servicer and the Special Servicer;
Assignment of Rights ........................................47
Section 2.04 Repurchase of Mortgage Loans for Breaches of
Representation and Warranty .................................52
Section 2.05 Execution of Certificates ...................................53
ARTICLE III GENERAL SERVICING AND ADMINISTRATION .....................54
Section 3.01 Access to Certain Documentation Regarding the
Mortgage Loans and This Agreement ...........................54
Section 3.02 Annual Statement As to Compliance ...........................54
Section 3.03 Annual Independent Public Accountants' Servicing
Report ......................................................54
Section 3.04 Merger or Consolidation of Any Servicer .....................55
Section 3.05 Limitation on Liability of the Servicers and Others .........55
Section 3.06 Resignation of Servicers ....................................56
Section 3.07 Maintenance of Errors and Omissions and Fidelity
Coverage ....................................................56
Section 3.08 Indemnity ...................................................57
Section 3.09 Information Systems .........................................58
Section 3.10 Successor to a Servicer .....................................58
Section 3.11 REMIC Administration ........................................60
Section 3.12 Notices to Mortgagors .......................................63
Section 3.13 Subservicing ................................................64
Section 3.14 Record Title to Mortgage Loans, Etc. ........................65
Section 3.15 Release of Documents and Instruments of
Satisfaction ................................................65
Section 3.16 Additional Servicing Restrictions; Defeasance ...............67
Section 3.17 Interest Reserve Account ....................................68
ARTICLE IV MASTER SERVICING..................................69
Section 4.01 The Master Servicer .........................................69
Section 4.02 Collection Account; Collection of Certain
Mortgage Loan Payments ......................................72
Section 4.03 Permitted Withdrawals from the Collection Account ...........74
Section 4.04 Remittances to the Trustee ..................................76
Section 4.05 Master Servicer Advances ....................................77
Section 4.06 Escrow Accounts .............................................79
Section 4.07 Maintenance of Insurance ....................................81
Section 4.08 Enforcement of "Due-on-Sale" Clauses; Assumption
Agreements ..................................................83
Section 4.09 Review of Property Inspections, Operating
Statements, Rent Rolls and Financial Statements .............85
Section 4.10 Reports of the Master Servicer ..............................86
Section 4.11 Confirmation of Balloon Payment .............................87
Section 4.12 Master Servicer Compensation ................................88
Section 4.13 Adjustment of Master Servicer's Compensation ................88
Section 4.14 Implementation of Operations and Maintenance Plans ..........89
Section 4.15 Dissemination of Information ................................89
Section 4.16 Foreign Currency Exchange Contracts .........................89
ARTICLE V [RESERVED] ..................................90
ARTICLE VI SPECIAL SERVICING ..........................91
Section 6.01 The Special Servicer ........................................91
Section 6.02 Transfer to Special Servicing ...............................91
Section 6.03 Servicing of Specially Serviced Mortgage Loans ..............92
Section 6.04 Management of REO Property ..................................97
Section 6.05 Sale of REO Property and Specially Serviced Mortgage Loans...99
Section 6.06 REO Account; Collection of REO Proceeds ....................100
Section 6.07 Master Servicer ............................................101
Section 6.08 Remittances to Master Servicer .............................101
Section 6.09 Specially Serviced Mortgage Loan Status Reports, REO
Status Reports and Other Reports ...........................101
Section 6.10 Special Servicer Advances ..................................103
Section 6.11 Environmental Considerations ...............................104
Section 6.12 Restoration of Specially Serviced Mortgage Loans ...........106
Section 6.13 Special Servicer Compensation ..............................107
Section 6.14 Limitations on the Special Servicer with Respect
ARD Loans ..................................................107
Section 6.15 Collateral Value Adjustments ...............................107
Section 6.16 Replacement Special Servicer ...............................108
ARTICLE VII PAYMENTS TO CERTIFICATEHOLDERS ......................110
Section 7.01 Certificate Account; Remittances to the Trustee ............110
Section 7.02 Distributions ..............................................110
Section 7.03 Statements to Certificateholders ...........................114
Section 7.04 Distribution of Reports to the Trustee and the Depositor;
Advances by the Master Servicer ............................117
Section 7.05 Allocations of Realized Losses and Collateral
Value Adjustments ..........................................118
ARTICLE VIII THE CERTIFICATES ..............................119
Section 8.01 The Certificates ...........................................119
Section 8.02 Registration of Transfer and Exchange of Certificates ......120
Section 8.03 Mutilated, Destroyed, Lost or Stolen Certificates ..........124
Section 8.04 Persons Deemed Owners ......................................124
ARTICLE IX THE DEPOSITOR ..............................125
Section 9.01 Liability of the Depositor .................................125
Section 9.02 Merger, Consolidation or Conversion of the Depositor .......125
Section 9.03 Limitation on Liability of Depositor and Others ............125
ARTICLE X DEFAULT ..........................................126
Section 10.01 Events of Default ..........................................126
Section 10.02 Trustee to Act; Apointment of Successor ....................129
Section 10.03 Notification to Certificateholders .........................129
Section 10.04 Waiver of Events of Default ................................129
Section 10.05 Additional Remedies of Trustee Upon Event of Default .......130
ARTICLE XI CONCERNING THE TRUSTEE ..........................131
Section 11.01 Duties of Trustee ..........................................131
Section 11.02 Monitoring Certificateholders and Directing
Certificateholder ..........................................132
Section 11.03 Powers of Attorney .........................................133
Section 11.04 Cetification by Certificate Owners..........................134
Section 11.05 Certain Matters Affecting the Trustee ......................134
Section 11.06 Trustee Not Liable for Certificates or Mortgage Loans ......135
Section 11.07 Trustee May Own Certificates ...............................136
Section 11.08 Fees and Expenses of Trustee; Indemnification of Trustee ...136
Section 11.09 Eligibility Requirements for Trustee .......................137
Section 11.10 Resignation and Removal of the Trustee .....................137
Section 11.11 Successor Trustee ..........................................138
Section 11.12 Merger or Consolidation of Trustee .........................139
Section 11.13 Appointment of Co-Trustee or Separate Trustee ..............139
Section 11.14 Appointment of Custodians ..................................140
Section 11.15 Representations and Warranties of the Trustee ..............142
Section 11.16 SEC Filings ................................................143
Section 11.17 Massachusetts Filings ......................................143
ARTICLE XII TERMINATION ...............................144
Section 12.01 Termination Upon Repurchase or Liquidation of
All Mortgage Loans .........................................144
ARTICLE XIII MISCELLANEOUS PROVISIONS ......................146
Section 13.01 Amendment ..................................................146
Section 13.02 Recordation of Agreement; Counterparts .....................147
Section 13.03 Limitation on Rights of Certificateholders .................148
Section 13.04 Governing Law ..............................................149
Section 13.05 Notices ....................................................149
Section 13.06 Severability of Provisions .................................149
Section 13.07 Grant of a Security Interest ...............................150
Section 13.08 Successors and Assigns .....................................150
Section 13.09 Article and Section Headings ...............................150
Section 13.10 Notices and Information to Rating Agencies .................150
Section 13.11 Certificateholders' List ...................................152
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 Hedge Transactions Schedule
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)
<PAGE>
This Pooling and Servicing Agreement, dated and effective as
of August 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, including, with respect to the Canadian Loans (as defined
below), the related Foreign Currency Exchange Contracts (as defined below). 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 twenty-eight 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. Twelve 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
Uncertificated 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 J, Class K, 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.
Original
Class Designation Pass-Through Rate Class Balance
Class A1 (1) $171,500,000
----------------------------------
Class A2 (2) $357,019,000
----------------------------------
Class B (3) $36,575,000
----------------------------------
Class C (3) $32,918,000
----------------------------------
Class D (3) $14,630,000
----------------------------------
Class E (3) $25,603,000
----------------------------------
Class F (3) $10,972,000
----------------------------------
Class X (4) $0(5)
----------------------------------
Class G 6.000% $16,459,000
----------------------------------
Class H 6.000% $20,116,000
----------------------------------
Class J 6.000% $23,774,000
----------------------------------
Class K 6,000% $7,315,000
----------------------------------
Class NR 6.000% $14,635,500
----------------------------------
Class R-I NA NA
----------------------------------
Class R-II NA NA
----------------------------------
Class R-III NA NA
----------------------------------
- --------------
(1) The Pass-Through Rate for the Class A1 Certificates will be the lesser
of (i) a rate equal to the weighted average of the Remittance Rates
or the mortgage loans and (ii) 7.325%.
(2) The Pass-Through Rate for the Class A2 Certificates will be the lesser
of (i) a rate equal to the weighted average of the Remittance Rates
on the mortgage loans and (ii) 7.400%.
(3) The Pass-Through Rate for the Class B, Class C, Class D, Class E and
Class F Certificates will be a rate equal to the Weighted Average
Remittance Rate on the mortgage loans.
(4) 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.
(5) 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 $731,516,500.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"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; provided, however, that with respect to the Canadian
Loans, the Advance Rate will equal the Prime Rate in effect from time to time
plus 1% per annum.
"Adverse REMIC Event": Any action or omission which would
cause the termination of REMIC I, REMIC II or REMIC III or the imposition of a
tax on REMIC I, REMIC II or REMIC III other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement.
"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) or, with respect to any
Canadian Loan, any comparable Canadian law.
"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.
"Canadian Loans": The Mortgage Loans identified in the
Mortgage Loan Schedule attached hereto as Exhibit G as Loan Numbers: 40, 66,
74, 79, 99, 100, 102 and 115.
"Certificate": Any Class A1, Class A2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, 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-C8".
"Certificate Balance": With respect to any Class A1, Class
A2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K 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 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 J Certificate": Any of the Certificates issued
hereunder and designated as such.
"Class K 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 the Pass-Through Rate for
the Class A1 Certificates for such Distribution
Date 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 the Pass-Through Rate for
the Class A2 Certificates for such Distribution
Date 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 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;
(d) 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;
(e) the Class JX 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 J Certificates immediately prior to such
Distribution Date;
(f) the Class KX 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 K Certificates immediately prior to such
Distribution Date; and
(g) 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, except with respect to any Canadian Loan, 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)), (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) and (E) the Master Servicer's good faith
estimate of the items in clauses (B), (C) and (D) that will be incurred during
the next twelve months (to the extent not included in clauses (B) through (D)
above). 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-C8".
"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 Avenue de Lafayette, 6th Floor, Boston, Massachusetts
02111, Attention: Global Investor Services Group Corporate Trust Department,
J.P. Morgan Commercial Mortgage Finance Corp. Series 1999-C8.
"CSSA SIP": Includes the following five electronic files and eight
supplemental reports: Five Electronic Files: 1) Loan Set-Up File, 2) Loan
Periodic File, 3) Property File, 4) Bond File, 5) Collateral File
Eight Supplemental Reports: 1) Watchlist, 2) Delinquent Loan Status, 3) REO
Status, 4) Comparative Financial, 5) Historical Loan Modification, 6)
Historical Liquidation, 7) Operating Statement Analysis, 8) NOI Adjustment
Worksheet.
"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": August 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.
"DCR": Duff & Phelps Credit Rating Co.
"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.
"Defeasance Collateral": As defined in Section 3.16 hereof.
"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": August 17, 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 September 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 DCR, either have a
long-term rating of "A" or a short-term rating of "D-1" by
DCR (or if not rated by DCR, then an equivalent rating from
at least two other NRSROs) and if rated by Moody's, either
have long-term rating of at least "Aa3" or a short-term
rating of "P-1+" by Moody's; 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" or its equivalent by each Rating
Agency (or if such obligations are not rated by DCR, then an
equivalent rating from at least two other NRSROs) covering
such debt obligation. 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, REO Account or
Collection Account will not result in a downgrading,
qualification (if applicable) 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.;
(vi) the Hazardous Materials Transportation Act, 49
U.S.C.ss. 1801 et seq; and
(vii) comparable Canadian federal, provincial or other
local law applicable to any of the Mortgaged
Properties securing any of the Canadian Loans.
"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-C8, 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.
"Foreign Currency Exchange Contract": With respect to each
Canadian Loan, each ISDA Master Agreement dated as of August 1, 1999, as
amended and supplemented from time to time, between the F/X Counterparty and
the Depositor and the related confirmations dated August 1, 1999 in the manner
assigned to the Trustee for the benefit of the Certificateholders pursuant to
the F/X Assignment Agreement.
"F/X Assignment Agreement": The assignment agreement dated
as of August 1, 1999 by and among the Depositor, the F/X Counterparty and the
Trustee in the form delivered by the Depositor on the Delivery Date.
"F/X Counterparty": MGT, as a party to the Foreign Currency
Exchange Contract.
"F/X Payment Date": As defined in Section 4.16.
"F/X Market Rate": As defined in Section 4.16.
"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.
"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-C8-- 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, provincial, 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
August 1, 1999, between the Mortgage Loan Seller 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 resulting in a Realized Loss, (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.
"Moody's": Moody's Investors Service, Inc.
"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 (including all environmental 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, the related
Foreign Currency Exchange Contract with respect to any Canadian Loan 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, ground leases, 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 in its capacity as Mortgage Loan
Seller under the Loan Sale Agreement.
"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).
"No Downgrade Confirmation": A written confirmation from DCR
that the taking of the proposed action (including consents, waivers and
approvals), in and of itself, will not result in a downgrade or withdrawal of
the then current rating on any Class of Certificates.
"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). With respect
to any Canadian Loan, such determination may also be based upon and take into
account the then-current foreign exchange rate and any potential fluctuations
thereto in the future and whether the related Mortgaged Property may be
realized upon in compliance with Section 6.03(i).
"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.
"NRSRO": A nationally recognized statistical rating
organization.
"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 is
rated "D-1+" by DCR (or if such obligations are
not rated by DCR, then an equivalent rating from
at least two other NRSROs), "P-1" by Moody's and
"A-1+" by S&P;
(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
(if applicable) 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 (xxiii) 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 G, Class H, Class J, Class
K, 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, (y) "A(VIII) by AM Best, Inc. and (z) "A"
by DCR; and
(iii) with respect to any insurance required pursuant to
Section 6.03(b), duly qualified as such under the
laws of the state or province 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 (if applicable) or
withdrawal of the ratings then assigned to the Certificates).
"Rated Final Distribution Date": The Distribution Date in
July 2031, which is the first Distribution Date preceding the second
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 (or final payment on the Anticipated Repayment Date) is
made.
"Rating Agency": Each of DCR, Moody's 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
twenty-one interests with a principal balance and interest rate equal to that
of one of the Mortgage Loans.
"REMIC II": A segregated pool of assets consisting of one
hundred twenty-one uncertificated regular interests issued under REMIC I.
"REMIC II Uncertificated Interests": Each of Uncertificated
Interest I, Uncertificated Interest II, Uncertificated Interest III,
Uncertificated Interest IV, Uncertificated Interest V, Uncertificated Interest
VI, and Uncertificated Interest VII, Uncertificated Interest VIII,
Uncertificated Interest IX, Uncertificated Interest X, Uncertificated Interest
XI and Uncertificated Interest XII.
"REMIC III": A segregated pool of assets consisting of
Uncertificated Interest I, Uncertificated Interest II, Uncertificated Interest
III, Uncertificated Interest IV, Uncertificated Interest V, Uncertificated
Interest VI, Uncertificated Interest VII, Uncertificated Interest VIII,
Uncertificated Interest IX, Uncertificated Interest X, Uncertificated Interest
XI and Uncertificated Interest XII.
"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 Amount; provided,
further, however, that with respect to each Canadian Loan, the Remittance Rate
shall be equal to the interest rate derived from interest payments in U.S.
dollars specified in the related Foreign Currency Exchange Contract over the
related Servicing Fee Rate.
"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, (c) twelve consecutive months following a Collateral Value
Adjustment if the Servicers have made P&I Advances consecutively during such
twelve month period or (d) the making of a material Advance by either Servicer
or the Trustee which the Special Servicer did not include in calculating the
most recent Collateral Value Adjustment.
"Required Rating": The following ratings:
(a) with respect to commercial paper, short-term debt
obligations or other short-term deposits, "D-1" by DCR (or if
such obligations are not rated by DCR, then an equivalent rating
from at least two other NRSROs), "P-1" by Moody's and "A-1+" by
S&P; or
(b) with respect to long-term debt obligations, the
long-term rating of "A" by DCR (or, if such obligations are not
rated by DCR, then an equivalent rating from at least two other
NRSROs) and "AA-" or its equivalent by Moody's and 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.
"Review Threshold": A Mortgage Loan having a current
outstanding principal balance equal to or exceeding 2% of the then-current
aggregate principal balance of all the Mortgage Loans. For this purpose, in
connection with any direct or indirect transfer of an ownership interest in a
Mortgagor and any assumption of a Mortgage Loan, groups of
cross-collateralized Mortgage Loans and groups of Mortgage Loans with the same
or affiliated Mortgagors will be aggregated and treated as one.
"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.
"Single-Purpose Entity" or "SPE": A person, other than an
individual, whose organizational documents provide that it is formed solely
for the purpose of assuming a Mortgage Loan and owning and pledging Defeasance
Collateral; does not engage in any business unrelated to such Mortgage Loan
and Defeasance Collateral; does not have any assets other than those related
to its interest in the Mortgage Loan and Defeasance Collateral or any
indebtedness other than as permitted by the related Mortgage; maintains its
own books, records and accounts, in each case which are separate and apart
from the books, records and accounts of any other person; conducts business in
its own name and uses separate stationery, invoices and checks; does not
guarantee or assume the debts or obligations of any other person; does not
commingle its assets or funds with those of any other person; transacts
business with affiliates on an arm's length basis pursuant to written
agreements; holds itself out as being a legal entity, separate and apart from
any other person. The SPE's organizational documents must provide that any
dissolution and winding up or insolvency filing for such entity requires the
unanimous consent of all partners or members, as applicable, and that such
documents may not be amended with respect to the Single-Purpose Entity
requirements during the term of the Mortgage Loan.
"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:
(v) 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
(vi) 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 J Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XI": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class K Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XII": 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. and
Deutsche Bank 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, Class J, Class K 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.
Section 1.04 Canadian Loans.
(a) All Servicing Advances with respect to Canadian Loans
will be made in the currency in which such payments is required to be paid.
(b) For purposes of preparing the reports and making
calculations hereunder in respect of the Certificates and the servicing of the
Mortgage Loans on behalf of the Certificateholders, all dollar amounts with
respect to the Canadian Loans (e.g., Scheduled Principal Balances, Monthly
Payments, Remittance Rate, Prepayment Interest Shortfalls, Prepayment Interest
Excesses, Purchase Price, Servicing Fees, etc.) shall be converted to U.S.
dollars at the foreign currency exchange rate specified in the related Foreign
Currency Exchange Agreement; provided, however, that with respect to any
amounts collected on any of the Canadian Loans, if the F/X Currency Exchange
Agreement is terminated, or if the F/X Counterparty is in default thereunder,
or if such amounts are not permitted to be exchanged under the related F/X
Currency Exchange Agreement (e.g., late fees or assumption fees), such amounts
shall be determined based on the F/X Market Rate.
<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby assign to the Trustee without recourse all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in, to and under the mortgage loans
identified on the Mortgage Loan Schedule (the "Mortgage Loans"), with respect
to the Canadian Loans, the related Foreign Currency Exchange Contracts, 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) and, with respect to the
Canadian Loans, the related Foreign Currency Exchange Contracts. 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 the Mortgage Loan Seller 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 the
Mortgage Loan Seller 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-C8", 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 the Mortgage Loan Seller 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-C8", in
complete (including recording information) and
recordable form;
(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; and
(xii) with respect to each Canadian Loan, a copy of the
related Foreign Currency Exchange Contract;
together with an Assignment and Assumption
Agreement with respect thereto, which the Trustee
shall execute and deliver in the form presented to
it.
(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-C8" 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 (but in no event later than ten Business days of
notice thereof) 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), (vii) and (xii) 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. In connection with the
assignment of the Canadian Loans and the related Foreign Currency Exchange
Contracts, the Trustee will execute and deliver the F/X Assignment Agreement.
(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 Delivery 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 the Mortgage Loan Seller 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 Loan 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
(including, with respect to a Canadian Loan, the related Foreign Currency
Exchange Contract) 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 (including, if applicable, the
related Foreign Currency Exchange Contract) released pursuant hereto and
thereafter such Mortgage Loan (including, if applicable, the related Foreign
Currency Exchange Contract) 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.
References to any Mortgage Loan in this clause (c) shall include, in respect
of a Canadian Loan, the related Foreign Currency Exchange Contract.
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
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
December 31, 1999 or (y) that would cause such
software or hardware to be fit no longer for the
purpose for which it was intended 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 the Mortgage Loan Seller
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, including the
Depositor's right to require the Mortgage Loan Seller to cure any material
breach of a representation or warranty by the Mortgage Loan Seller with
respect to each Mortgage Loan or repurchase such Mortgage Loan.
(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 the Mortgage Loan Seller under the Loan Sale Agreement, 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 the
Mortgage Loan Seller 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
the Mortgage Loan Seller 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, the Mortgage Loan Seller 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, the Mortgage Loan Seller or its designee,
as applicable, any Mortgage Loan (including, with respect to a Canadian Loan,
the related Foreign Currency Exchange Contract) released pursuant hereto. In
connection with such repurchase, the Master Servicer, and the Special
Servicer, as applicable, shall release to the Depositor or the Mortgage Loan
Seller all documents and records maintained by such Servicer and requested by
the Depositor or the Mortgage Loan Seller; 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 negligent 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
Accepted Special 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 negligent 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
(if applicable), downgraded or withdrawn as a result thereof.
Section 3.11 REMIC Administration and Other Tax Matters.
(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, Class J, Class K 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 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.
(q) At the direction of the Depositor, the Trustee hereby
identifies the hedging transactions set forth in Exhibit H as qualified
hedging transactions in accordance with the identification requirements of
Treas. Reg. ss. 1.988-5(a)(8) and agrees to treat such hedging transactions
and the Canadian Loans they hedge as being synthetic U.S. dollar debt
instruments with respect to the REMIC for United States federal income tax
purposes as provided in Treas. Reg. ss. 1.988-5.
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 and
such Servicer shall pay the fees for any subservicer from its own funds. 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 without payment of a termination fee, or
(ii) succeed to all of the rights and obligations of the Master Servicer or
Special Servicer under any subservicing agreement, subject to the terms of the
related subservicing agreement; provided, however, that the Trustee or
successor Master Servicer may not terminate any subservicing agreement entered
into by the Master Servicer as of the Delivery Date with L.J. Melody &
Company, Northland/Marquette Capital Group, Inc. or Legg Mason Real Estate
Services, Inc. unless the related subservicer is in default under such
subservicing agreement, which subservicing agreement must provide that (i) the
subservicer is in default if it causes the Master Servicer to be in default
under this Agreement and (ii) the related subservicer is required to perform
its servicing obligations in a manner consistent with Accepted Servicing
Practices. In the event the Trustee or such successor Servicer assumes the
obligations of the Master Servicer or the Special Servicer hereunder, it 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, but solely to the extent not otherwise chargeable to and paid
by the related Mortgagor. Such Servicer shall notify the Trustee of an
instrument of satisfaction described above as soon as practicable.
Section 3.16 Additional Servicing Restrictions; Defeasance
With respect to each Mortgage Loan that provides for
defeasance, to the extent permitted by the terms of such Mortgage Loan in
connection with effecting a defeasance, the Master Servicer shall require the
related Mortgagor to (i) deliver to the Trustee replacement collateral
consisting of U.S. government securities within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Note when due ("Defeasance Collateral"),
(ii) deliver a written certification from an independent certified public
accounting firm certifying that the Defeasance Collateral is sufficient to
make such payments, (iii) designate a Single-Purpose Entity (which may be a
subsidiary of the Depositor or the Master Servicer established for the purpose
of assuming all defeased Mortgage Loans) to assume the Mortgage Loan and own
the Defeasance Collateral and (iv) provide an opinion of counsel that the
Trustee has a perfected security interest in the Defeasance Collateral. All
expenses of the defeasance shall be charged to the borrower or other
responsible party to the extent permitted by the terms of such Mortgage Loan.
If the terms of the Mortgage Loan permit the Master Servicer to impose the
foregoing requirements, a No Downgrade Confirmation from DCR is not required
(provided that the Master Servicer delivers a letter to DCR stating that the
foregoing requirements have been imposed). If, however, the terms of the
Mortgage Loan do not permit the Master Servicer to impose such requirements or
the Master Servicer does not satisfy such requirements on its own, the Master
Servicer shall notify DCR.
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 (if applicable),
downgraded or withdrawn by S&P as a result thereof.
Each of the following actions, to the extent the consent of
the Mortgagee under the related Mortgage Loan is required or permitted, will
be subject to a No Downgrade Confirmation: (a) a transfer of a direct or
indirect controlling interest (i.e. either voting control or in excess of 49%
economic interest in the aggregate) in a Mortgagor, except (i) solely for
estate planning purposes, and (ii) Mortgagors with respect to a Mortgage Loan
below the Review Threshold; (b) any material amendment to the Mortgage Loan
Documents (other than with respect to Specially Serviced Mortgage Loans),
grant of a material easement or encumbrance, or change in franchise
affiliation, in each case with respect to a Mortgage Loan within the Review
Threshold; and (c) any change in property manager for a Mortgaged Property
secured by a Mortgage Loan representing 5% or more of the then current
aggregate outstanding principal balance of all Mortgage Loans in the pool.
In connection with any of the foregoing requests, the
Special Servicer shall prepare and deliver to DCR a memorandum outlining its
analysis and recommendation in accordance with Accepted Special Servicing
Practices, together with copies of all relevant documentation. The Master
Servicer or the Special Servicer, as applicable, shall also prepare and
provide DCR with such memorandum and documentation for all consents granted by
the Special Servicer for transfers, assumptions, encumbrances, additional
debt, material amendments, grants of easement of encumbrance, franchise
affiliation changes and property manager changes concerning Mortgage Loans
below the Review Threshold, but for which the Special Servicer's decision in
accordance with Accepted Special Servicing Practices will be sufficient and a
No Downgrade Confirmation will not be required.
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.
<PAGE>
ARTICLE IV
MASTER SERVICING
Section 4.01 The Master Servicer.
(a) The Master Servicer shall service and administer each
Mortgage Loan (except as such obligations may be assigned to the Special
Servicer pursuant to Article VI hereof) on behalf of the Trust Fund and in the
best interests of and for the benefit of the Certificateholders in accordance
with the terms of this Agreement, the terms of the respective Mortgage Loans
and Accepted Servicing Practices.
(b) Subject to Accepted Servicing Practices and the terms of
this Agreement and of each Mortgage Loan, the Master Servicer shall have full
power and authority to do or cause to be done any and all things in connection
with such servicing and administration that it may deem, in its best judgment,
necessary or desirable, including, without limitation, to execute and deliver,
on behalf of the Trust Fund, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to any Mortgage Loan which is not a
Specially Serviced Mortgage Loan. Without limiting the generality of the
foregoing, the Master Servicer shall, and is hereby authorized and empowered
with respect to each Mortgage Loan, to prepare, execute and deliver, on behalf
of the Trust Fund and at the Trust Fund's expense, any and all financing
statements, continuation statements and other documents or instruments
necessary to maintain the lien on the related Mortgaged Property and related
collateral. The Master Servicer shall service and administer each Mortgage
Loan in accordance with applicable state and federal law and shall provide to
each related Mortgagor any information required to be provided to it thereby.
Subject to the foregoing, the Master Servicer shall service and administer
each Mortgage Loan in accordance with the related Mortgage Loan Documents, and
shall enforce all provisions designated in such Mortgage Loan Documents,
including but not limited to the establishment and administration of escrow
accounts, reserve accounts, impound accounts and operation and maintenance
plans. The Master Servicer may from time to time obtain from the Trustee any
powers of attorney and other documents necessary or appropriate to enable such
Master Servicer to carry out its servicing and administrative duties
hereunder. Notwithstanding the foregoing, the Master Servicer shall not
modify, waive or amend any term of any Mortgage Loan (or consent to any such
modification, waiver or amendment) if such modification, waiver or amendment
would affect the related Monthly Payment (other than the portion thereof
relating to Escrow Payments), the related Maturity Date, the related Mortgage
interest rate or the related amortization schedule unless the Master Servicer
determines in accordance with Accepted Servicing Practices or in reliance upon
an Opinion of Counsel that the contemplated action will not result in an
Adverse REMIC Event. 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) 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).
(h) With respect to any Mortgage Loan that has a ground
lease, the Master Servicer, on behalf of the Trustee, shall send notice to the
related ground lessor to the effect that the Trustee is the new mortgagee
under such Mortgage Loan.
(i) Notwithstanding anything to the contrary in this
Agreement, the Master Servicer shall not service any of the Canadian Loans on
behalf of the Trust Fund (other than collecting periodic rent rolls,
collecting Mortgagor financial statements, making and forwarding reports,
inspecting property and any other similar servicing activities) from an office
located in Canada, unless (A) the Master Servicer has obtained an Opinion of
Counsel at the expense of the Trust Fund to the effect that such action will
not (i) cause the Trust Fund to be or to be deemed to be resident for the
purposes of the Canadian Income Tax Act and therefore cause the Trust Fund to
be subject to tax under the Canadian Income Tax Act (other than with respect
to withholding taxes, if any, under Part XIII of the Canadian Income Tax Act
on payments made pursuant to the Canadian Loans); (ii) cause the Trust Fund to
be subject to Canadian federal or provincial sales or value added taxes; or
(iii) cause the Trust Fund to be subject to compliance with the Canadian Bank
Act or (B) Canadian law requires certain servicing activities to be conducted
from offices located in Canada.
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;
(viii) any amounts received from the Special Servicer
under Section 6.08 hereof; and
(ix) any amounts received from the F/X Counterparty
pursuant to any Foreign Currency Exchange Contract
or exchanged by the Master Servicer pursuant
Section 4.03(a)(x);
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; provided, however,
that with respect to any Advance made on a
Canadian Loan, the reimbursement of such interest
shall be solely from amounts collected on the
Canadian Loans;
(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; provided, however, that with
respect to any Advance made on a Canadian Loan,
the reimbursement of such Advance shall be solely
from amounts collected on the Canadian 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) to pay expenses of the Trust Fund specifically
identified as such and authorized in this
Agreement (such reimbursement for expenses
incurred in Canadian dollars shall be made in U.S.
dollars at the foreign currency exchange rate in
effect at the time such expense was incurred);
(x) to remit to the F/X Counterparty any amounts in
Canadian dollars received with respect to the
Canadian Loans pursuant to the related Foreign
Currency Exchange Contract, or if the Foreign
Currency Exchange Contract for a Canadian Loan has
been terminated or if the F/X Counterparty is in
default under the related Foreign Currency
Exchange Contract, the Master Servicer shall
exchange the amount of Canadian dollars otherwise
required to be remitted to the F/X Counterparty
into U.S. dollars at the F/X Market Rate;
(xi) on each Master Remittance Date, to make
remittances to the Trustee pursuant to Section
4.04 hereof; and
(xii) 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 (x) of Section 4.03(a); 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.
(d) Any P&I Advances required to be made by the Master
Servicer hereunder with respect to any Canadian Loan shall be made in Canadian
dollars. The amount of any P&I Advance with respect to a Canadian Loan for any
Distribution Date shall be included in the report to the F/X Counterparty and
the Trustee prepared for such Distribution Date pursuant to Section 4.10(d).
Any such P&I Advance for any Distribution Date shall be included in the
amounts paid to the F/X Counterparty by the Master Servicer on behalf of the
Trustee two Business Days prior to such Distribution Date pursuant to the
related Foreign Currency Exchange Contract.
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 except to the extent such
investments were made at the direction of and for the benefit of the Mortgagor
under the related Mortgage Loan Documents.
(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, 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 with a Qualified Insurer (to the extent permitted by the Mortgage
Loan Documents), 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
without deduction for depreciation 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, 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 each of S&P and Moody's stating that none of the
then-current rating or ratings of all outstanding classes of the Certificates
would be qualified (if applicable), downgraded or withdrawn by S&P and
Moody's, respectively, as a result thereof. Prior to entering into any such
assumption agreement, 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 equal to or more than 2% of
the current outstanding aggregate principal balance of the Mortgage Loans,
then the Master Servicer shall obtain written confirmation from DCR stating
that none of the then-current rating or ratings of all outstanding classes of
the Certificates would be (if applicable) downgraded or withdrawn by DCR, 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 Loan
identified as Loan No. 68 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 or 2% of the current aggregate principal balance of all Mortgage
Loans 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; provided, however, that any Mortgaged
Property securing a Mortgage Loan which becomes a Specially Serviced Mortgage
Loan shall be inspected promptly after the Servicing Transfer Event occurs
and, so long as the related Mortgage Loan is a Specially Serviced Mortgage
Loan, annually thereafter. 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) 12:00 noon New York City 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 or the
Rating Agencies. The Master Servicer shall be entitled to charge a reasonable
fee reflecting the internal and external costs to such Master Servicer of
preparing any such report and such fee shall be charged to the Person making
such a request to the Trustee (other than the Rating Agencies, in which case
such expenses shall be an expense of the Trust and paid as a Servicing
Advance).
(d) The Master Servicer shall prepare and deliver to the F/X
Counterparty, Depositor and the Trustee, not later than 12:00 noon New York
City time one Business Day prior to each F/X Payment Date, a copy of a report
specifying the total amount to be remitted by the Master Servicer to the F/X
Counterparty with respect to each Canadian Loan pursuant to each Foreign
Currency Exchange Contract.
(e) If, with respect to any Canadian Loan, (i) the Master
Servicer has knowledge that an unscheduled payment or collection may be
received, or (ii) the Master Servicer has knowledge that a Monthly Payment and
the related P&I Advance may not be made, the Master Servicer shall notify the
Depositor and the F/X Counterparty by telephone or facsimile transmission
within one Business Day of obtaining any such knowledge. Such notice shall
indicate (i) with respect to a notice of an event described in clause (i) of
the preceding sentence, the amount of such unscheduled payment or collection
and the date made or received or expected to be made or received and (ii) with
respect to a notice of an event described in clause (ii) of the preceding
sentence, the amount of the Monthly Payment and the amount by which it may
exceed any related P&I Advance. The Master Servicer shall indicate to the F/X
Counterparty in connection with giving any such notice that it is not the
notice required under the related Foreign Currency Exchange Contract and
therefore shall not obligate the Master Servicer or the Trustee to make any
payment on an F/X Payment Date.
(f) The Master Servicer shall notify the Depositor and the
F/X Counterparty within one Business Day, with copy to the Trustee, of the
occurrence of any of the following events:
(i) any Canadian Loan is cancelled, satisfied or paid
in full;
(ii) the Trust Fund has obtained title to any Mortgaged
Property securing a Canadian Loan by foreclosure
or otherwise;
(iii) the Trust Fund has sold, transferred or otherwise
disposed of all the REO Property which, prior to
becoming REO Property, secured a Canadian Loan; or
(iv) a Canadian Loan is subject to a modification or
amendment in respect to the related payment term.
In connection with an event discussed in clause (ii) above, the Master
Servicer shall specify an effective date for the related Foreign Currency
Exchange Contract as required thereunder, only if the Opinion of Counsel
referenced in Section 6.03(h) has been obtained.
(g) The Master Servicer shall notify the Depositor and the
F/X Counterparty pursuant to this Agreement and the Foreign Currency Exchange
Contract of the occurrence of a Required Appraisal Date or a Collateral Value
Adjustment within one Business Day of the occurrence of any such event.
(h) Subject to Section 1.04(b), all reports hereunder with
respect to amounts collected in connection with the Canadian Loans or the
related Mortgaged Properties shall report such amounts in U.S. dollars based
on the exchange rate between Canadian dollars and U.S. dollars specified in
the related Foreign Currency Exchange Contract, whether or not then in effect.
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)
Section 4.16 Foreign Currency Exchange Contracts.
(a) The Master Servicer shall administer and enforce each
Foreign Currency Exchange Contract on behalf of the Trustee for the benefit of
the Certificateholders in accordance with the terms thereof.
(b) The Master Servicer shall deliver to the Depositor,
Trustee and the F/X Counterparty the required notice of payment pursuant to
Section 4.10(d). The amount reported in such notice will include all
collections expected to be received with respect to the Canadian Loans or, if
applicable, the related REO Property, and any P&I Advances required to be made
hereunder with respect thereto net of any amounts the Master Servicer
withdraws from the Collection Account pursuant to Section 4.03(a)(i), (iii),
(iv), (v), (vi) and (vii) and any amounts the Master Servicer is not required
to deposit into the Collection Account pursuant to Section 4.02(c).
(c) Two Business Days immediately prior to each Distribution
Date (each an "F/X Payment Date") the Master Servicer shall remit to the F/X
Counterparty pursuant to the terms of the related Foreign Currency Exchange
Contract in Canadian dollars the net amount described in clause (b) above.
(d) If a Foreign Currency Exchange Contract is terminated
pursuant to its terms or as a result of a default thereunder by the F/X
Counterparty, the Master Servicer shall prior to the Master Remittance Date
exchange the amounts in Canadian dollars otherwise payable to the F/X
Counterparty for U.S. dollars at the then-current foreign currency exchange
rate (the "F/X Market Rate"). U.S. dollars obtained pursuant to such currency
exchange shall be deposited into the Collection Account and shall be remitted
to the Trustee on the Master Remittance Date pursuant to Section 4.04.
<PAGE>
ARTICLE V
[RESERVED]
<PAGE>
ARTICLE VI
SPECIAL SERVICING
Section 6.01 The Special Servicer.
The Special Servicer, as independent contract servicer,
shall, notwithstanding any other provisions hereof, service and administer the
Specially Serviced Mortgage Loans and REO Property on behalf of and in the
best interests of and for the benefit of the Certificateholders in accordance
with this Agreement and Accepted Special Servicing Practices. In the event
that a Mortgage Loan becomes a Specially Serviced Mortgage Loan, subject to
the provisions contained in this Article VI, the Master Servicer shall
continue to collect all Monthly Payments called for under the terms and
provisions of the Mortgage Loan in accordance with Section 4.02, except as
otherwise directed by the Special Servicer in writing, but the Special
Servicer shall make any Advances pursuant to Section 6.10.
Section 6.02 Transfer to Special Servicing.
(a) The Master Servicer shall notify the Trustee, the
Depositor and the Special Servicer as promptly as practicable by telephone and
in an electronic format reasonably acceptable to the Trustee after it becomes
aware of (i) any facts or circumstances that might result in any Mortgage Loan
becoming a Specially Serviced Mortgage Loan or (ii) the occurrence of a
Servicing Transfer Event. If applicable, such notification shall include a
discussion of all appropriate courses of action that might be employed to
prevent the Mortgage Loan in question from becoming a Specially Serviced
Mortgage Loan and shall, to the extent applicable, set forth the information
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 each Rating
Agency stating that upon such release, substitution or addition none of the
then-current rating or ratings of all outstanding classes of the Certificates
would be qualified (if applicable), downgraded or withdrawn by each Rating
Agency 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 unless required pursuant
to this Section 6.03 or Accepted Special Servicing Practices.
(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, Class E or Class F
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.
(h) Before obtaining title for the Trust Fund to a Mortgaged
Property securing a Canadian Loan as a result or in lieu of foreclosure or
otherwise, the Special Servicer shall obtain an Opinion of Counsel to the
effect that the inclusion of the related Foreign Currency Exchange Contract in
REMIC I would not cause REMIC I to be disqualified as a REMIC; provided that
if the Special Servicer is unable to obtain such Opinion of Counsel, it shall
not proceed to obtain title for the Trust Fund to such Mortgaged Property
unless the most recent Asset Strategy Report indicated that such course of
action was the most favorable course of action even though the related Foreign
Currency Exchange Contract would be terminated upon taking title to such
Mortgaged Property.
(i) Notwithstanding anything to the contrary in this
Agreement, the Special Servicer shall not service any of the Canadian Loans on
behalf of the Trust Fund (other than collecting periodic rent rolls,
collecting Mortgagor financial statements, making and forwarding reports,
inspecting property and any other similar servicing activities) from an office
located in Canada, unless (A) the Special Servicer has obtained an Opinion of
Counsel at the expense of the Trust Fund to the effect that such action will
not (i) cause the Trust Fund to be or to be deemed to be resident for the
purposes of the Canadian Income Tax Act and therefore cause the Trust Fund to
be subject to tax under the Canadian Income Tax Act (other than with respect
to withholding taxes, if any, under Part XIII of the Canadian Income Tax Act
on payments made pursuant to the Canadian Loans); (ii) cause the Trust Fund to
be subject to Canadian federal or provincial sales or value added taxes; or
(iii) cause the Trust Fund to be subject to compliance with the Canadian Bank
Act or (B) Canadian law requires certain servicing activities to be conducted
from offices located in Canada.
Notwithstanding anything to the contrary in this Agreement,
in connection with any foreclosure proceedings relating to any of the Canadian
Loans, the Special Servicer shall not enter into possession of any of the
Canadian properties or in any manner carry on the business of the related
Mortgagor on behalf of the Trust Fund other than by way of a receiver
appointed by the applicable Canadian court; unless, in any such case, the
Special Servicer has obtained an Opinion of Counsel at the expense of the
Trust Fund to the effect that such action will not (i) cause the Trust Fund to
be or to be deemed to be resident for the purposes of the Canadian Income Tax
Act and therefore cause the Issuer to be subject to tax under the Canadian
Income Tax Act (other than with respect to withholding taxes, if any, under
Part XIII of the Canadian Income Tax Act on payments made pursuant to the
Canadian Loans); (ii) cause the Trust Fund to be subject to Canadian federal
or provincial sales or value added taxes; or (iii) cause the Trust Fund to be
subject to compliance with the Canadian Bank Act.
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 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;
provided, however, that with respect to the Canadian Loans, the Special
Servicer shall remit such amounts on or prior to 1:00 p.m., Boston time, on
the related Determination Date.
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. The Master Servicer will verify the accuracy of the
mathematical computation of the Collateral Value Adjustment by the Special
Servicer and that the amounts used therein are consistent with the Master
Servicer's records.
(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 (other than the Rating Agencies, in which case
such expenses shall be an expense of the Trust and paid as a Servicing
Advance.)
(f) The Special Servicer shall prepare and deliver to the
F/X Counterparty (in the manner specified in the related Foreign Currency
Exchange Contract) the Depositor, the Master Servicer and the Trustee, not
later than the fourth Business Day immediately preceding each Distribution
Date, a copy of a report specifying the total amount to be remitted by the
Special Servicer with respect to each Canadian Loan, if any, which is a
Specially Serviced Mortgage Loan pursuant to the related Foreign Currency
Exchange Contract then in effect.
(g) If all the REO Property which secured any Canadian Loan
has been sold, transferred or otherwise disposed of by the Trust Fund, the
Special Servicer shall notify the Master Servicer of the occurrence of such
event. Any such notice shall specify whether the Special Servicer has obtained
the Opinion of Counsel referenced in Section 6.03(h).
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.
(e) Any P&I Advance required to be made by the Special
Servicer hereunder with respect to a Canadian Loan shall be made in Canadian
dollars. The amount of any P&I Advance for any Distribution Date with respect
to a Canadian Loan shall be included in the report to the F/X Counterparty,
the Depositor, the Master Servicer and the Trustee prepared for such
Distribution Date pursuant to Section 6.09(f). Any such P&I Advance for any
Distribution Date shall be included in the amount remitted to the Master
Servicer pursuant to Section 6.08 in connection with such Distribution Date.
(f) The Special Servicer shall notify the Master Servicer
within one Business Day if (i) the Special Servicer has knowledge that an
unscheduled payment or collection may be received or (ii) the Special Servicer
has knowledge that a Monthly Payment and the related P&I Advance may not be
made.
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 or would be
subject to similar liability and responsibility under applicable Canadian
federal, provincial or other local law, 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 (or such longer period as the Special Servicer is (as certified
thereby to the Trustee in writing) diligently and in good faith proceeding to
obtain such appraisal), 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 (if
applicable), 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.
<PAGE>
ARTICLE VII
PAYMENTS TO CERTIFICATEHOLDERS
Section 7.01 Certificate Account; Remittances to the Trustee.
(a) The Trustee shall establish and maintain one or more
accounts (collectively, the "Certificate Account"), held in trust for the
benefit of the Certificateholders. The Certificate Account shall be an
Eligible Account. The Trustee shall deposit in the Certificate Account, when
received or as otherwise required hereunder, all amounts received from the
Master Servicer with respect to all Mortgage Loans pursuant to this Agreement
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 and second, to
the extent of the Available Distribution Amount, in the following order of
priority:
(i) On each Distribution Date, the related Class
Portion of any U.S. Treasury Net Prepayment
Premiums to each Class of 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 J
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 J
Certificates, until the Class Balance thereof is
reduced to zero;
(xxi) to distributions of the Interest Distribution
Amount for such Distribution Date to the Class K
Certificates;
(xxii) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class J Certificates
in reduction of the Class Balance thereof to zero)
for such Distribution Date on the Class K
Certificates, until the Class Balance thereof is
reduced to zero;
(xxiii) to the distributions of the Interest
Distribution Amount for such Distribution Date to
the Class NR Certificates;
(xxiv) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class J 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;
(xxv) 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
(xxvi) 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, Class J, Class K 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 make
available to each Holder and to each Certificate Owner which shall have
certified to the Trustee that it is a Certificate Owner (or forward, in the
case of each Holder or Certificate Owner which shall have requested such
report from the Trustee), a statement as to the distributions made on such
Distribution Date setting forth the information set forth in Exhibit K based,
in so far as practicable and relevant, on the reports furnished to the Trustee
by the Master Servicer for such Distribution Date in accordance with the
provisions of this Agreement.
In addition, on each Distribution Date, the Trustee shall
make available to each Rating Agency and each Underwriter in an electronic
format each statement received prior to such Distribution Date prepared by the
Master Servicer pursuant to this Agreement.
On each Distribution Date, the Trustee shall forward to the
Depositor, each Underwriter, the Mortgage Loan Seller, the F/X Counterparty,
each Rating Agency, and 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 G, Class H, Class J, Class K, 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 (other than the Rating
Agencies, in which case such expenses shall be an expense of the Trust and
paid as a Servicing Advance) 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. With the written
approval of the Depositor, the Trustee may make available such Additional
Information through its Corporate Trust home page on the world wide web. In
furtherance of the foregoing, within twenty days following the Closing Date,
the Depositor shall furnish to the Trustee in electronic format copies of this
Pooling Agreement, which, with the written approval of the Depositor, the
Trustee may also make available through its Corporate Trust home page on the
world wide web. 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) The Trustee shall make available to all
Certificateholders, Pool Factor information for the immediately succeeding
Distribution Date (but no earlier than two (2) Business Days preceding such
Distribution Date) through the Trustee's Factor Lookup On the Web ("FLOW")
system. Certificateholders can access FLOW through the Trustee's web page at
"corporatetrust.statestreet.com" by clicking the "Investor Information and
Reporting" button and clicking on the "General" tab on the left side. Pool
Factor information is available on FLOW for up to and including the four
previous Distribution Dates.
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 12:00 P.M., New York City time, on 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 reported for any Distribution Date 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 K Certificates until the Class
Balance thereof has been reduced to zero; third, to the Class J Certificates
until the Class Balance thereof has been reduced to zero; fourth, to the Class
H Certificates until the Class Balance thereof has been reduced to zero;
fifth, to the Class G Certificates until the Class Balance thereof has been
reduced to zero; sixth, to the Class F Certificates until the Class Balance
thereof has been reduced to zero; seventh, to the Class E Certificates until
the Class Balance thereof has been reduced to zero; eighth, to the Class D
Certificates until the Class Balance thereof has been reduced to zero; ninth,
to the Class C Certificates until the Class Balance thereof has been reduced
to zero; tenth, 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. Notwithstanding the foregoing, Realized
Losses with respect to interest amounts will not be allocated to any class of
Certificates in reduction of the related Class Balance in an amount which
exceeds the excess of the aggregate Stated Principal Balance of the Mortgage
Loans as of the related Determination Date over the aggregate Class Balance of
the Certificates after any other reductions or payments thereon for such
Distribution Date. The allocation of a Collateral Value Adjustment to a Class
of Certificates shall reduce such Class' Class Balance for purposes of
determining Voting Rights.
<PAGE>
ARTICLE VIII
THE CERTIFICATES
Section 8.01 The Certificates.
(a) The Certificates will be substantially in the form
annexed hereto as Exhibit A. The Class A1, Class A2, Class X, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, 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 as of the Delivery Date of not less than $25,000,
or Notional Amounts as of the Delivery Date of not less than $100,000, and
integral multiples of $1 in excess thereof. Only one Class R-I, one Class R-II
and one Class R-III Certificate may be issued.
(b) The Certificates shall be executed by manual or
facsimile signature on behalf of the Trustee in its capacity as trustee
hereunder by an authorized officer under its seal imprinted thereon.
Certificates bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of such Certificates. No Certificate shall
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein executed by the Certificate
Registrar by manual signature, and such certificate upon any Certificate shall
be conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder. All Certificates shall be dated
the date of their authentication.
(c) The Class A1, Class A2, Class X, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J , Class K, 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 G, Class H, Class J, Class K 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.
Within ten Business Days after the Closing Date, the
Depositor shall supply the Trustee with an inventory of certificate forms
comprised of ten blank forms for each class of certificate together with the
forms of each class of certificate on diskette in read-only format.
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 G, Class H, Class J, Class K,
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 G, Class
H, Class J, Class K, 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 G, Class H, Class J, Class K, Class NR, Class R-I, Class R-II and
Class R-III Certificate without registration or qualification. Any Class G,
Class H, Class J, Class K, 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 Section 4975 of 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 G, Class H, Class J, Class K,
Class NR, Class R-I, Class R-II or Class R-III Certificate to certify, 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) Transfers of the Class B, Class C, Class D, Class E and
Class F Certificates shall not be registered by the Trustee unless the Trustee
receives: (i) a representation from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Trustee, to the
effect that such transferee is not a Plan or a person investing on behalf of
or using the assets of a Plan to effect such transfer, (ii) if the purchaser
is an insurance company, a representation that the purchaser is an insurance
company general account" (as such term is defined in Section V(e) of the
Prohibited Transaction Class Exemption 95-60 (60 Fed. Reg. 35925, July 12,
1995) ("PTCE 95-60")) and that the purchase and holding of such Certificates
are covered under Sections I and III of PTCE 95-60; or (iii) an Opinion of
Counsel satisfactory to the Trustee that the purchase and holding of such
Certificate by a Plan, any person acting on behalf of a Plan or using a Plan's
assets will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the prohibited transaction requirements of ERISA
and the Code and will not subject the Trustee to any obligation in addition to
those undertaken in this Agreement. The representations in (i) or (ii) shall
be deemed to have been made to the Trustee by the transferee's acceptance of a
Class B, Class C, Class D, Class E or Class F Certificate.
(e) 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.
(f) Each Holder of a Certificate, by its acceptance thereof,
shall be deemed to represent that neither MGT nor any of its affiliates has
discretionary authority or control with respect to the investment of the
Plan's assets invested in the related Certificate, or gives investment advice
with respect to the investment of such assets.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
<PAGE>
ARTICLE IX
THE DEPOSITOR
Section 9.01 Liability of the Depositor.
The Depositor shall be liable in accordance herewith only to
the extent of the obligations specifically imposed upon and undertaken by the
Depositor herein.
Section 9.02 Merger, Consolidation or Conversion of the
Depositor.
Subject to the following paragraph, the Depositor will keep
in full effect its existence, rights and franchises as a corporation under the
laws of the jurisdiction of its incorporation, and will obtain and preserve
its qualification to do business as a foreign corporation in each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and enforceability of this Agreement, the Certificates or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
The Depositor may be merged or consolidated with or into any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which the
Depositor, shall be a party, or any Person succeeding to the business of the
Depositor, shall be the successor of the Depositor hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 9.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers,
employees or agents shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor or any such Person against any breach of warranties or
representations made herein, or against any liability which would otherwise be
imposed by reason of misfeasance, bad faith or negligence in the performance
of duties. The Depositor and any director, officer, employee or agent thereof
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
respective duties under this Agreement and in its opinion does not involve it
in any expense or liability.
<PAGE>
ARTICLE X
DEFAULT
Section 10.01 Events of Default.
"Event of Default", wherever used herein, means with respect
to any Servicer any one of the following events:
(i) with respect to the Master Servicer, failure to
advance or remit when due to the Trustee for
deposit into the Certificate Account any amount
required to be advanced or remitted under the
terms of this Agreement; with respect to the
Special Servicer, failure to advance or remit to
the Master Servicer, as required hereunder, any
amount required to be advanced or remitted under
the terms of the Agreement within one Business Day
of the date required pursuant to the terms of this
Agreement; or
(ii) except as set forth in clause (i) above, such
Servicer shall (x) fail to remit to the Master
Servicer or deposit in the Collection Account,
Escrow Account or REO Account any amount required
to be so remitted or deposited under the terms of
this Agreement within one (1) Business Day of the
date required pursuant to the terms of this
Agreement or (y) fail to make any Advance required
to be made by such Servicer under this Agreement
within one (1) Business Day of the date required
pursuant to the terms of this Agreement; or
(iii) such Servicer shall fail to timely deliver to the
Trustee or any other Servicer any report required
pursuant to the provisions of this Agreement and
such failure shall continue unremedied for a
period of two (2) Business Days following receipt
by such Servicer of notice from the Trustee or
other Servicer of such failure; or
(iv) any failure on the part of such Servicer duly to
observe or perform in any material respect any
other of the covenants or agreements on the part
of such Servicer contained in this Agreement which
continues unremedied for a period of 30 days after
the date on which written notice of such failure,
requiring the same to be remedied, shall have been
given to such Servicer by the Depositor, the
Trustee, or, in the case of the Special Servicer,
the Master Servicer or to such Servicer (with a
copy to the Depositor, the Trustee, and, in the
case of the Special Servicer, the Master Servicer)
by the Holders of Certificates entitled to at
least 25% of the Voting Rights of any Class
affected thereby; or
(v) any breach of the representations and warranties
contained in Section 2.03(b) which materially and
adversely affects the interests of any Class of
Certificateholders and which continues unremedied
for a period of 30 days after the date on which
notice of such breach, requiring the same to be
remedied, shall have been given to such Servicer
by the Depositor, the Trustee or, in the case of
the Special Servicer, the Master Servicer, or to
such Servicer (with a copy to the Depositor, the
Trustee and, in the case of the Special Servicer,
the Master Servicer) by the Holders of
Certificates entitled to at least 25% of the
Voting Rights of any Class affected thereby; or
(vi) a decree or order of a court or agency or
supervisory authority having jurisdiction for the
appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall
have been entered against such Servicer and such
decree or order shall have remained in force
undischarged or unstayed for a period of sixty
(60) days; or
(vii) such Servicer shall consent to the appointment of
a conservator or receiver or liquidator in any
insolvency, bankruptcy, readjustment of debt,
marshaling of assets and liabilities or similar
proceedings of or relating to such Servicer or of
or relating to all or substantially all of its
property; or
(viii) such Servicer shall admit in writing its
inability to pay its debts generally as they
become due, file a petition to take advantage of
any applicable insolvency or reorganization
statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its
obligations; or
(ix) such Servicer shall fail to maintain a required
license to do business or service multifamily and
commercial mortgage loans in accordance with
Accepted Servicing Practices or Accepted Special
Servicing Practices, as applicable, and as
provided in this Agreement, in any jurisdiction
where the Mortgaged Properties or REO Properties
are located, which failure materially and
adversely affects the interests of any Class of
Certificateholders and such failure shall continue
unremedied for a period of thirty (30) Business
Days after the date upon which such Servicer has
been notified or otherwise becomes aware of such
failure (or such extended period reasonably
approved by the Trustee to the extent such
Servicer is diligently proceeding to cure such
failure and such extended period shall not have
any further material and adverse effect on such
Certificateholders' interests) and none of the
then-current rating or ratings of all outstanding
Classes of the Certificates would be qualified (if
applicable), downgraded or withdrawn by any Rating
Agency as a result thereof; or
(x) except as otherwise permitted pursuant to the
express terms of this Agreement, such Servicer
attempts to assign its right to servicing
compensation hereunder or a Servicer attempts,
without the prior written consent of Trustee, to
assign this Agreement or the servicing
responsibilities hereunder or any portion thereof;
or
(xi) Either DCR or Moody's has given written
confirmation that with respect to any Servicer
that maintaining the Servicer in such capacity
hereunder will cause a downgrade, qualification
(if applicable) 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 (x) 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; and with respect to clause
(xi) above the Trustee shall terminate all the rights and obligations of such
Servicer without a vote by the Holders, subject to Section 3.10(b). 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 does not meet the
requirements set forth in Section 3.10(d), 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.
<PAGE>
ARTICLE XI
CONCERNING THE TRUSTEE
Section 11.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiver of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default occurs and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs. Any permissive right of the Trustee contained in
this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform to the requirements of this Agreement, if
applicable. If any such instrument is found not to conform to the requirements
of this Agreement if applicable in a material manner, the Trustee shall take
such action as it deems appropriate to have the instrument corrected. The
Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Master Servicer or the Special
Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default,
and after the curing of all such Events of Default
which may have occurred, the duties and
obligations of the Trustee shall be determined
solely by the express provisions of this
Agreement, the Trustee shall not be liable except
for the performance of such duties and obligations
as are specifically set forth in this Agreement,
no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in
the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of
the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee
and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable for an
error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the
pertinent facts; and
(iii) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with
the direction of Holders of Certificates entitled
to at least 25% of the Voting Rights relating to
the time, method and place of conducting any
proceeding for any remedy available to the
Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement.
(d) Within 30 days after the Delivery Date, the Depositor
shall deliver to the Trustee and within 90 days after the Delivery Date, the
Trustee, shall sign and mail to each borrower in respect of an ARD Loan notice
in writing to the effect that the Trust Fund waives any and all rights to
receive Excess Interest at an Excess Rate exceeding 200 basis points (and all
interest on such Excess Interest). The Trustee may not waive any right to
receive Excess Interest in respect of any ARD Loan if the related borrower has
not been so advised within the first 90 days after the Delivery Date unless
the Trustee is provided with an Opinion of Counsel to the effect that such
waiver would not constitute an "exchange" under Section 1001 of the Code,
which Opinion of Counsel shall not be an expense of the Trust. Each such
borrower shall be an intended third-party beneficiary of the provisions of
this paragraph.
Section 11.02 Monitoring Certificateholders and Directing
Certificateholder.
(a) Each Monitoring Certificateholder is hereby deemed to
have agreed by virtue of its purchase of a Certificate to provide its name and
address to the Trustee and to notify the Trustee of the transfer of any
Certificate of a Monitoring Class, the selection of a Directing
Certificateholder or the resignation or removal thereof. The Directing
Certificateholder is hereby deemed to have agreed by virtue of its purchase of
a Certificate to notify the Trustee when such Certificateholder is appointed
Directing Certificateholder and when it is removed or resigns. To the extent
there is only one Monitoring Certificateholder and it is also the Special
Servicer, it shall be the Directing Certificateholder.
(b) Within thirty (30) days of the Delivery Date, the
Trustee shall notify the Monitoring Certificateholders that they may select a
Directing Certificateholder for purposes of Sections 6.03 and 6.11 of this
Agreement. Such notice shall set forth the process established by the Trustee
in order to select a Directing Certificateholder.
(c) A "Monitoring Class" as of any time of determination
shall be the following Class or Classes of Certificates:
(i) if the Class outstanding with the most subordinate
interest in the Trust Fund represents at least
1.50% by Class Balance (adjusted for Collateral
Value Adjustments) of all the Certificates, such
Class only;
(ii) otherwise, each Class, in reverse order of
seniority, but only to the extent necessary to
represent, in the aggregate, at least 1.50% by
Class Balance (adjusted for Collateral Value
Adjustments) of all the Certificates.
(d) Once a Directing Certificateholder has been selected
pursuant to clause (b) above, each of the 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 Moody's and
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. The
long-term debt obligations of the Trustee shall at all times be rated "A" by
DCR; provided, however, if a Trustee does not meet the foregoing criteria,
such Trustee may be retained subject to a No Downgrade Confirmation. The
appointment of any successor Trustee shall be subject to a No Downgrade
Confirmation. 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
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) 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.
(vii) The Trustee will take reasonable steps consistent
with industry norms to provide products (and in
connection therewith, services) that are Year 2000
compliant, including, but not limited to, century
recognition of dates, calculations that correctly
compute same century and multi-century formulas
and date values, and interface values that reflect
the date issues arising between now and the next
one hundred years. If any changes to its products
are so required, the Trustee will make such
changes in a commercially reasonable time frame,
and will require its third-party suppliers to do
likewise.
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.
<PAGE>
ARTICLE XII
TERMINATION
Section 12.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
The respective obligations and responsibilities under this
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than the obligations of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth and any indemnification
provision) shall terminate upon payment to the Certificateholders and the
deposit of all amounts held by or on behalf of the Master Servicer and the
Trustee and required hereunder to be so paid or deposited on the Distribution
Date following the earlier to occur of (i) the purchase of all the Mortgage
Loans 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 at the Advance Rate) 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 (including, with respect to any remaining Canadian Loans, the
related Foreign Currency Exchange Contracts).
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.
<PAGE>
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein which may be inconsistent with
any other provisions herein, (iii) to make any other provisions with respect
to matters or questions arising hereunder which shall not be inconsistent with
the provisions hereof, (iv) to relax or eliminate any requirement hereunder
imposed by the REMIC Provisions if the REMIC Provisions are amended or
clarified such that any such requirement may be relaxed or eliminated; or (v)
if such amendment, as evidenced by an Opinion of Counsel delivered to the
Trustee, is reasonably necessary to comply with any requirements imposed by
the Code or any successor or amendatory statute or any temporary or final
regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any
proposed such action which, if made effective, would apply retroactively to
the Trust Fund at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to
the operation of the Trust Fund; provided that such action (except any
amendment described in clause (v) above) shall not, as evidenced by an Opinion
of Counsel delivered to the Trustee, adversely affect in any material respect
the interests of any Certificateholder; provided further, however, that an
Opinion of Counsel (other than as to REMIC tax matters) 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 (if applicable) 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: Chief Executive Officer, telephone number: (816)
435-5000, telecopy number: (816) 435-2326; (iii) in the case of the Trustee,
State Street Bank and Trust Company, Two Avenue de Lafayette, Boston,
Massachusetts 02111, Attention: Global Investor Services Group Corporate Trust
Department, J.P. Morgan Financial Mortgage Finance Corp., Series 1999-C8,
telephone number: (617) 662-1327, telecopy number: (617) 662-1435; and (iv) in
the case of the Rating Agencies, (A) Duff & Phelps Credit Rating Co., 55 East
Monroe Street, Suite 3800, Chicago, Illinois 60603 Attention: CMBS Monitoring
Group, telephone number: (312) 368-3100, telecopy number: (312) 263-2852,
e-mail address: [email protected]; (B) Standard & Poor's Ratings
Group, 55 Water Street, New York, New York 10041, Attention: Commercial
Mortgage Surveillance Group, telephone number: (212) 438-1000, telecopy number
(212) 438-2657; and (c) Moody's Investors Service, 99 Church Street, New York,
New York 10007, Attention: Commercial Mortgage Surveillance Group, telephone
number: (212) 553-0300, telecopy number: (212) 553-1350; or as to each such
Person such other address as may hereafter be furnished by such Person to the
parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be sent to the address of such Holder
as shown in the Certificate Register.
Section 13.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions
or terms of this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Agreement or of the Certificates or the rights of the
Holders thereof.
Section 13.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's
right, title and interest in and to the Mortgage Loans pursuant to this
Agreement shall constitute a sale and not a pledge of security for a loan. If
such conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor
also intends and agrees that, in such event, (i) the Depositor shall be deemed
to have granted to the Trustee (in such capacity) a first priority security
interest in the Depositor's entire right, title and interest in and to the
assets comprising the Trust Fund, including without limitation, the Mortgage
Loans, all principal and interest received or receivable with respect to the
Mortgage Loans (other than loan principal and interest payments due and
payable prior to the Cut-off Date and Principal Prepayments received prior to
the Cut-off Date), all amounts held from time to time in the Certificate
Account, the 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;
(vi) any change in the location of the Certificate
Account;
(vii) CSSA SIP; and
(viii) any other information the Rating Agencies may
reasonably request consistent with the Trustee's
duties hereunder.
(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 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 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) any other information the Rating Agencies may
reasonably request consistent with the Servicer's
servicing duties hereunder.
(d) The Servicer shall promptly furnish to or notify DCR of
the following:
(i) notice of resignation or removal of the Trustee,
(ii) notification of any change of location of the
Collection Account,
(iii) any officer's certificate delivered by it to the
Trustee,
(iv) any site inspections unless notified by DCR (to
the extent required to be delivered by the
Mortgagor and actually received by the Servicer),
(v) any operating statements unless notified by DCR,
(vi) any rent rolls and sales reports to the extent
requested by DCR (to the extent required to be
delivered by the Mortgagor and actually received
by the Servicer),
(vii) any extension or modification of a Maturity Date,
and
(viii) any modification, waiver or amendment of any
term of any Mortgage Loan.
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/ Lawrence D. Ashley
Name: Lawrence D. Ashley
Title: Senior 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 17th day of August, 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/ Clarice Zanoni
----------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF MISSOURI )
) ss.:
COUNTY OF JACKSON )
On the 16th day of August, 1999 before me, a notary public in
and for said State, personally appeared Lawrence D. Ashley known to me to be
Senior 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/ Tandrea Jefferson
----------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF MASSACHUSETTS )
) ss.:
COUNTY OF SUFFOLK )
On the 16th day of August, 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/ Diana J. Kenneally
----------------------------
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 SECTION 4975 OF 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-C8
[Original Class Balance][Initial Aggregate
Notional Amount]: $[_________]
Date of Pooling and Servicing Agreement:
August 1, 1999 [Initial [Certificate
Balance][Notional Amount] of this Class [ ]
Certificate as of the Delivery Date:
$____________]
Cut-off Date: August 1, 1999
Delivery Date: [o], 1999 [Percentage Interest: ____%]
First Distribution Date: September [o], 1999 Pass-Through Rate:
[__%][Variable]
Master Servicer: Midland Loan Trustee: State Street Bank
Services Inc. and 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 August 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 Section 4975 of 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, not individually, but solely in
its capacity 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-C8, 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 August 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-C8, [Class G, Class H, Class J, 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 August [o], 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 August 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-C8, [Class G, Class H, Class J, 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 August [o], 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 August 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-C8, [Class G, Class H, Class J, 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 August [o], 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 August 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-C8, [Class G, Class H, Class J, 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 August [o], 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 August 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-C8, 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-C8, 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
HEDGE SCHEDULE
<TABLE>
<CAPTION>
- ------------- ----------- ----------- ---------- ----------- ------------ -----------------------------------------------------
Loan Number Date Foreign Effective Delivery Amount of Summary of Cash Flows
Acquired Currency Date Date Exchange
Exchange Gain or
Contract Loss
Number Deferred
Under
Treas.
Reg.ss.
1.988-5(a)
(6)
----------------------------------------
Cut-Off Date U.S. Cut-Off Date Canadian
U.S. Dollar Dollar Canadian Dollar Dollar
Principal Interest Principal($) Interest
Balance($) Rate(%) Rate(%)
- ------------- ---------- ----------- ---------- ----------- ---------- -------------- ----------- ---------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
99 8/11/98 CMF-1 8/17/99 8/17/99 none 2,843,595.86 8.443 2,848,894.26 7.940
74 12/16/97 CMF-2 8/17/99 8/17/99 none 4,403,154.40 8.422 4,408,558.52 7.910
100 8/11/98 CMF-3 8/17/99 8/17/99 none 2,843,595.86 8.433 2,848,894.26 7.940
40 6/30/98 CMF-4 8/17/99 8/17/99 none 7,961,984.52 8.305 7,977,412.09 7.750
102 8/11/98 CMF-5 8/17/99 8/17/99 none 2,696,513.26 8.433 2,701,537.61 7.940
66 4/15/99 CMF-6 8/17/99 8/17/99 none 4,953,208.99 8.555 4,968,545.14 8.000
79 8/11/98 CMF-7 8/17/99 8/17/99 none 4,167,338.64 8.443 4,175,103.54 7.940
115 8/11/98 CMF-8 8/17/99 8/17/99 none 2,216,043.65 8.433 2,220,172.75 7.940
- ------------- ---------- ----------- ---------- ----------- ---------- -------------- ----------- ----------------- -----------
</TABLE>
<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 DELIVERY 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 DELIVERY 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 DELIVERY 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 DELIVERY 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 DELIVERY 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
<PAGE>
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
