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) January 25, 2000
-----------------------------------------
J.P. Morgan Commercial Mortgage Finance Corp.
------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
Delaware 333-87441 13-3789046
- ------------------------------ -------------------------- ---------------------
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
60 Wall Street
New York, New York 10260
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(Address of Principal Executive Offices and Zip Code)
Registrant's telephone number, including area code (212) 648-9344
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Item 5. Other Events
- ------ ------------
Filing of Pooling and Servicing Agreement.
- -----------------------------------------
On January 1, 2000, 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, ORIX Real
Estate Capital Markets, LLC, as master servicer and special servicer, Norwest
Bank Minnesota, National Association, as trustee, and LaSalle Bank National
Association, as bond administrator. The Pooling and Servicing Agreement is
annexed hereto as Exhibit 99.
Item 7. Financial Statements, Pro Forma Financial
- ------ -----------------------------------------
Information and Exhibits.
------------------------
(a) Not applicable
(b) Not applicable
(c) Exhibits.
The following is filed herewith. The exhibit number corresponds with
Item 601(b) of Regulation S-K.
Exhibit No. Description
---------- -----------
99 Pooling and Servicing Agreement
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
J.P. MORGAN COMMERCIAL MORTGAGE
FINANCE CORP.
By: /s/ Clive Bull
_____________________________________
Name: Clive Bull
Title: Vice President
Dated: February 9, 2000
Exhibit Index
-------------
Exhibit Page
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99. Pooling and Servicing Agreement
EXHIBIT 99
EXECUTION COPY
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J.P. Morgan Commercial Mortgage Finance Corp.,
Depositor,
ORIX Real Estate Capital Markets, LLC,
Master Servicer and Special Servicer,
Norwest Bank Minnesota, National Association,
Trustee
and
LaSalle Bank National Association,
Bond Administrator
--------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of January 1, 2000
--------------------------------
$814,388,116
Mortgage Pass-Through Certificates
Series 2000-C9
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................3
Section 1.01 Defined Terms..................................................3
Accepted Master Servicing Practices..................................3
Accepted Special Servicing Practices.................................4
Acquisition Date.....................................................4
Adjusted Available Distribution Amount...............................4
Advance..............................................................4
Advance Rate.........................................................5
Affiliate............................................................5
Agreement............................................................5
Allocated Net Prepayment Premium.....................................5
Allocation Fraction..................................................5
Anticipated Repayment Date...........................................5
ARD Loan.............................................................5
Asset Strategy Report................................................5
Assignment of Leases and Rents.......................................6
Assignment of Mortgage...............................................6
Available Distribution Amount........................................6
Balloon Mortgage Loan................................................6
Balloon Payment......................................................6
Basic Special Servicing Fee..........................................6
Basic Special Servicing Fee Rate.....................................6
Bankruptcy Code......................................................7
Bond Administrator...................................................7
Bond Administrator Fee...............................................7
Bond Administrator Fee Rate..........................................7
Book-Entry Certificate...............................................7
Business Day.........................................................7
Canadian Loans.......................................................7
Certificate..........................................................7
Certificate Account..................................................7
Certificate Balance..................................................7
Certificateholder....................................................7
Certificate Owner....................................................8
Certificate Register.................................................8
Certificate Registrar................................................8
Class................................................................8
Class A1 Certificate.................................................8
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..................................................9
Class H Certificate:.................................................9
Class J Certificate..................................................9
Class K Certificate..................................................9
Class NR Certificate.................................................9
Class Portion........................................................9
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
CMSA IRP............................................................11
Code................................................................11
Collateral Value Adjustment.........................................11
Collateral Value Adjustment Event...................................11
Collection Account..................................................12
Collection Period...................................................12
Condemnation Proceeds...............................................12
Corporate Trust Office..............................................12
Corrected Mortgage Loan.............................................13
Custodian...........................................................13
Cut-off Date........................................................13
Cut-off Date Balance................................................13
Defaulted Mortgage Loan.............................................13
Defeasance Collateral...............................................13
Deficient Valuation.................................................13
Definitive Certificate..............................................13
Delivery Date.......................................................13
Depositor...........................................................14
Depository..........................................................14
Depository Participant..............................................14
Determination Date..................................................14
Directing Certificateholder.........................................14
Directly Operate....................................................14
Disqualified Organization...........................................14
Distribution Date...................................................15
DSCR................................................................15
Due Date............................................................15
Eligible Account....................................................15
Environmental Laws..................................................16
Escrow Account......................................................16
Escrow Payments.....................................................17
Event of Default....................................................17
Excess Cash Flow....................................................17
Excess Condemnation Proceeds........................................17
Excess Insurance Proceeds...........................................17
Excess Interest.....................................................18
Excess Rate.........................................................18
FDIC................................................................18
Final Certification.................................................18
Final Recovery Determination........................................18
Fitch...............................................................18
Foreign Currency Exchange Contract..................................18
F/X Assignment Agreement............................................18
F/X Counterparty....................................................18
F/X Market Rate.....................................................18
F/X Payment Date....................................................18
Hazardous Materials.................................................19
Holder..............................................................19
Independent.........................................................19
Initial Subservicer.................................................20
Insurance Policy....................................................20
Insurance Proceeds..................................................20
Interest Accrual Amount.............................................20
Interest Distribution Amount........................................20
Interest Reserve Account............................................21
Interest Reserve Loan...............................................21
Interested Person...................................................21
LaSalle.............................................................21
LaSalle Loan Sale Agreement.........................................21
Law.................................................................21
Liquidation Event...................................................21
Liquidation Fee.....................................................21
Liquidation Fee Rate................................................22
Liquidation Proceeds................................................22
Loan Sale Agreements................................................22
Loss Mortgage Loan..................................................22
MAI.................................................................22
Master Remittance Date..............................................22
Master Servicer.....................................................22
Master Servicing Fee................................................22
Master Servicing Fee Rate...........................................22
Maturity Date.......................................................22
MGT.................................................................22
MGT Loan Sale Agreement.............................................22
Minimum Master Servicing Fee Rate...................................23
Monitoring Certificateholder........................................23
Monitoring Class....................................................23
Monthly Payment.....................................................23
Moody's.............................................................23
Mortgage............................................................23
Mortgage Loan.......................................................23
Mortgage Loan Documents.............................................23
Mortgage Loan File..................................................24
Mortgage Loan Schedule..............................................24
Mortgage Loan Sellers...............................................24
Mortgage Note.......................................................24
Mortgage Rate.......................................................24
Mortgaged Property..................................................24
Mortgagor...........................................................24
Most Subordinate Class of Certificates..............................24
Nonrecoverable Advance..............................................24
Nonrecoverable Advance Certificate..................................25
Non-United States Person............................................25
Non-U.S. Treasury Net Prepayment Premium............................25
Notional Amount.....................................................25
NRSRO...............................................................25
Officers' Certificate...............................................25
Opinion of Counsel..................................................25
Original Class Balance..............................................25
Ownership Interest..................................................25
P&I Advance.........................................................26
Pass-Through Rate...................................................26
Payment Reserve.....................................................26
Percentage Interest.................................................26
Permitted Investments...............................................26
Person..............................................................27
Pool Factor.........................................................27
Prepayment Assumption...............................................27
Prepayment Interest Excess..........................................28
Prepayment Interest Shortfall.......................................28
Prepayment Premium..................................................28
Primary Servicing Fees..............................................28
Prime Rate..........................................................28
Principal Distribution Amount.......................................28
Principal Prepayment................................................29
Private Certificates................................................29
Property Improvement Expenses.......................................29
Property Inspection Report..........................................29
Property Protection Expenses........................................29
Purchase Price......................................................30
Qualified Insurer...................................................30
Rated Final Distribution Date.......................................31
Rating Agency.......................................................31
Realized Loss.......................................................31
Record Date.........................................................32
REMIC...............................................................32
REMIC I.............................................................32
REMIC I Uncertificated Interests....................................32
REMIC II............................................................32
REMIC II Uncertificated Interests...................................32
REMIC III...........................................................32
REMIC Provisions....................................................32
Remittance Period...................................................32
Remittance Rate.....................................................33
Rents from Real Property............................................33
REO Account.........................................................33
REO Acquisition.....................................................33
REO Mortgage Loan...................................................33
REO Proceeds........................................................33
REO Property........................................................34
REO Tax.............................................................34
Repair and Remediation Reserve......................................34
Replacement Reserve.................................................34
Replacement Special Servicer........................................34
Request for Release and Receipt of Documents........................34
Required Appraisal Date.............................................34
Required Rating.....................................................34
Residual Certificate................................................34
Responsible Officer.................................................35
Revised Rate........................................................35
Security Agreement..................................................35
Servicer............................................................35
Servicer Watch List.................................................35
Servicing Advance...................................................35
Servicing Fee.......................................................35
Servicing Fee Rate..................................................35
Servicing Officer...................................................36
Servicing Transfer Date.............................................36
Servicing Transfer Event............................................36
Single-Purpose Entity...............................................36
Specially Serviced Mortgage Loan....................................37
Special Servicer....................................................37
Startup Day.........................................................37
State Tax Laws......................................................37
Stated Principal Balance............................................37
Tax Matters Person..................................................38
Tax Returns.........................................................38
Tenant Improvement and Leasing Commissions Reserve..................38
Transfer Date.......................................................38
Trust Fund..........................................................38
Trustee.............................................................39
Trustee Fee.........................................................39
Trustee Fee Rate....................................................39
UCC Financing Statement.............................................39
Uncertificated Interest I...........................................39
Uncertificated Interest II..........................................39
Uncertificated Interest III.........................................39
Uncertificated Interest IV..........................................39
Uncertificated Interest V...........................................39
Uncertificated Interest VI..........................................39
Uncertificated Interest VII.........................................39
Uncertificated Interest VIII........................................39
Uncertificated Interest IX..........................................40
Uncertificated Interest X...........................................40
Uncertificated Interest XI..........................................40
Uncertificated Interest XII.........................................40
Underwriter.........................................................40
United States Person................................................40
U.S. Treasury Net Prepayment Premium................................40
Voting Rights.......................................................40
Weighted Average Remittance Rate....................................40
Withheld Amount.....................................................41
Workout Fee.........................................................41
Workout Fee Rate....................................................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.........................................46
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.......................................59
Section 3.11 REMIC Administration and Other Tax Matters....................60
Section 3.12 Notices to Mortgagors.........................................64
Section 3.13 Subservicing..................................................64
Section 3.14 Record Title to Mortgage Loans, Etc...........................66
Section 3.15 Release of Documents and Instruments of Satisfaction..........66
Section 3.16 Additional Servicing Restrictions; Defeasance.................67
Section 3.17 Interest Reserve Account......................................67
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 Bond Administrator.........................76
Section 4.05 Master Servicer Advances......................................77
Section 4.06 Escrow Accounts...............................................80
Section 4.07 Maintenance of Insurance......................................82
Section 4.08 Enforcement of "Due-on-Sale" Clauses; Assumption
Agreements....................................................84
Section 4.09 Review of Property Inspections, Operating Statements, Rent
Rolls and Financial Statements................................86
Section 4.10 Reports of the Master Servicer................................86
Section 4.11 Confirmation of Balloon Payment...............................88
Section 4.12 Master Servicer Compensation..................................88
Section 4.13 Adjustment of Master Servicer's Compensation..................89
Section 4.14 Implementation of Operations and Maintenance Plans............89
Section 4.15 Dissemination of Information..................................89
Section 4.16 Foreign Currency Exchange Contracts...........................90
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 Remittance to Master Servicer of Non-REO Proceeds............101
Section 6.08 Remittances to Master Servicer from the REO Account..........101
Section 6.09 Specially Serviced Mortgage Loan Status Reports, REO
Status Reports and Other Reports.............................101
Section 6.10 Advances.....................................................103
Section 6.11 Environmental Considerations.................................103
Section 6.12 Restoration of Specially Serviced Mortgage Loans.............105
Section 6.13 Special Servicer Compensation................................105
Section 6.14 Limitations on the Special Servicer with Respect to ARD
Loans........................................................107
Section 6.15 Collateral Value Adjustments.................................107
Section 6.16 Replacement Special Servicer.................................108
ARTICLE VII PAYMENTS TO CERTIFICATEHOLDERS..................................109
Section 7.01 Certificate Account; Remittances to the
Bond Administrator...........................................109
Section 7.02 Distributions................................................109
Section 7.03 Statements to Certificateholders.............................113
Section 7.04 Distribution of Reports to the Bond Administrator and
the Depositor; Advances by the Master Servicer...............116
Section 7.05 Allocations of Realized Losses and Collateral Value
Adjustments..................................................117
ARTICLE VIII THE CERTIFICATES...............................................118
Section 8.01 The Certificates.............................................118
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 the Depositor and Others..........125
ARTICLE X DEFAULT...........................................................126
Section 10.01 Events of Default............................................126
Section 10.02 Trustee to Act; Appointment of Successor.....................129
Section 10.03 Notification to Certificateholders...........................129
Section 10.04 Waiver of Events of Default..................................130
Section 10.05 Additional Remedies of Trustee Upon Event of Default.........130
ARTICLE XI CONCERNING THE TRUSTEE AND THE BOND ADMINISTRATOR................131
Section 11.01 Duties of the Trustee and the Bond Administrator.............131
Section 11.02 Monitoring Certificateholders and Directing
Certificateholder............................................132
Section 11.03 Powers of Attorney...........................................134
Section 11.04 Certification by Certificate Owners..........................134
Section 11.05 Certain Matters Affecting the Trustee or the Bond
Administrator................................................134
Section 11.06 Neither the Trustee Nor Bond Administrator Liable for
Certificates or Mortgage Loans...............................136
Section 11.07 Trustee or the Bond Administrator May Own Certificates.......136
Section 11.08 Fees and Expenses of Trustee and Bond Administrator;
Indemnification of Trustee...................................136
Section 11.09 Eligibility Requirements for Trustee and the
Bond Administrator...........................................138
Section 11.10 Resignation and Removal of Trustee or Bond Administrator.....138
Section 11.11 Successor Trustee or Bond Administrator......................139
Section 11.12 Merger or Consolidation of Trustee or Bond Administrator.....140
Section 11.13 Appointment of Co-Trustee or Separate Trustee................140
Section 11.14 Appointment of Custodians....................................141
Section 11.15 Representations and Warranties of the Trustee................143
Section 11.16 SEC Filings..................................................145
Section 11.17 [RESERVED]...................................................145
Section 11.18 Representations and Warranties of the Bond Administrator.....145
Section 11.19 Indemnity....................................................147
ARTICLE XII TERMINATION.....................................................149
Section 12.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans...............................................149
ARTICLE XIII MISCELLANEOUS PROVISIONS.......................................151
Section 13.01 Amendment....................................................151
Section 13.02 Recordation of Agreement; Counterparts.......................152
Section 13.03 Limitation on Rights of Certificateholders...................153
Section 13.04 Governing Law................................................154
Section 13.05 Notices......................................................154
Section 13.06 Severability of Provisions...................................154
Section 13.07 Grant of a Security Interest.................................155
Section 13.08 Successors and Assigns.......................................155
Section 13.09 Article and Section Headings.................................155
Section 13.10 Notices and Information to Rating Agencies...................155
Section 13.11 Certificateholders' List.....................................157
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 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-1 Form of MGT Loan Sale Agreement
Exhibit I-2 Form of LaSalle Loan Sale Agreement
Exhibit J-1 Form of Acknowledgment
Exhibit J-2 Confidentiality Agreement
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 CMSA IRP Reports
Exhibit O Form of Payments Received After Determination Date Report
Exhibit P [RESERVED]
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
Exhibit U [RESERVED]
Exhibit V [RESERVED]
Exhibit W Form of Special Servicer Notice Pursuant to Section 6.12(a)
Exhibit X Form of Special Servicer Notice Pursuant to Section 6.12(b)
Exhibit Y Form of Request for Release and Receipt of Documents Pursuant to
Section 3.15 or Section 11.14(b)
Exhibit Z Form of REO Account Letter Pursuant to Section 6.09(b)
This Pooling and Servicing Agreement, dated and effective as of January
1, 2000, among J.P. Morgan Commercial Mortgage Finance Corp., a Delaware
corporation, as Depositor, ORIX Real Estate Capital Markets, LLC, a Delaware
limited liability company, as Master Servicer and as Special Servicer, Norwest
Bank Minnesota, National Association, as Trustee and LaSalle Bank National
Association, as Bond Administrator.
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 Bond Administrator on
behalf of 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 forty 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 Bond Administrator on behalf of 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 Classes
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 Bond Administrator on behalf of 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.
Class Designation Pass-Through Rate Original Class Balance
Class A1 7.59% $200,000,000
Class A2 7.77% $404,682,000
Class B (1) $36,647,000
Class C (2) $38,683,000
Class D (3) $10,179,000
Class E (3) $28,503,000
Class F (3) $14,251,000
Class X (4) $0(5)
Class G 6.25% $14,251,000
Class H 6.25% $20,359,000
Class J 6.25% $26,467,000
Class K 6.25% $6,107,000
Class NR 6.25% $14,259,116
Class R-I NA NA
Class R-II NA NA
Class R-III NA NA
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(1) The Pass-Through Rate for the Class B Certificates will be a rate equal to
the Weighted Average Remittance Rate minus 0.11%.
(2) The Pass-Through Rate for the Class C Certificates will be a rate equal to
the Weighted Average Remittance Rate minus 0.03%.
(3) The Pass-Through Rate for the Class D, Class E and Class F Certificates
will be a rate equal to the Weighted Average Remittance Rate.
(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 $814,388,116.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Bond
Administrator agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accepted Master 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 or
itself 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) any 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 adequacy of the Special Servicer's compensation for
its services hereunder or with respect to any particular
transaction;
(iii) the ownership, servicing or management for itself or
others by the Special Servicer of any other mortgage
loans or property;
(iv) the ownership by the Special Servicer of any Certificates
or other securities issued in connection with any
Securitization;
(v) any obligation of the Special Servicer to repurchase any
Mortgage Loan; or
(vi) 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 aggregate
Allocated Net Prepayment Premiums.
"Advance": A P&I Advance or Servicing Advance.
"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.
"Allocated Net Prepayment Premium": With respect to any Distribution
Date and any Mortgage Loan , the excess (but not less than zero) of (a) any
Prepayment Premium on such Mortgage Loan received prior to the Master Remittance
Date and not previously distributed over (b) the pro rata portion, based on the
Prepayment Premium collected on each of the Mortgage Loans during the same
period, of the sum of (i) the excess of any Prepayment Interest Shortfall over
any Prepayment Interest Excess for such Distribution Date and (ii) any amounts
required to reimburse the Master Servicer on such Distribution Date for
reductions in its compensation pursuant to Section 4.13 (but not less than
zero).
"Allocation Fraction": For any class of Certificates, any Mortgage Loan
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 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 Bond Administrator 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 Bond Administrator 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.
"Basic Special Servicing Fee": The compensation the Special Servicer is
entitled to receive at the Basic Special Servicing Fee Rate pursuant to Section
6.13.
"Basic Special Servicing Fee Rate": With respect to each Specially
Serviced mortgage loan, a per annum rate equal to 0.25% per annum.
"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.
"Bond Administrator": LaSalle, as bond administrator hereunder and its
successor in interest.
"Bond Administrator Fee" : means the portion of the Trustee Fee payable
to the Bond Administrator pursuant to the terms hereof calculated at the Bond
Administrator Fee Rate.
"Bond Administrator Fee Rate" : 0.002% per annum.
"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 Illinois,
Texas, Maryland 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: 62, 72, 79, 97, 101, 106,
117, 126, 134 and 137.
"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 Bond Administrator pursuant to Section 7.01 in trust for
Certificateholders, which shall be entitled "Norwest Bank Minnesota, National
Association, as Trustee, in trust for registered holders of J.P. Morgan
Commercial Mortgage Finance Corp., Mortgage Pass-Through Certificates, Series
2000-C9".
"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 and the Bond Administrator
shall be entitled to request and rely upon a certificate of the Master Servicer,
Special 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 U.S. Treasury Net Prepayment
Premium on any Mortgage Loan and 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 Premium for such Mortgage Loan and Distribution Date,
(y) the related Class Prepayment Fraction for such Distribution Date and (z) the
related Allocation Fraction for such Mortgage Loan and 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 7.59% per annum and a
notional amount solely for purposes of calculating interest thereon
equal to the Class Balance of the Class A-1 Certificates immediately
prior to such Distribution Date;
(b) the Class A2X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over 7.77% per annum and a
notional amount solely for purposes of calculating interest thereon
equal to the Class Balance of the Class A2 Certificates immediately
prior to such Distribution Date;
(c) the Class BX Component, with a Pass-Through Rate for any
Distribution Date equal to 0.11% per annum and a notional amount solely
for purposes of calculating interest thereon equal to the Class Balance
of the Class B Certificates immediately prior to such Distribution
Date;
(d) the Class CX Component, with a Pass-Through Rate for any
Distribution Date equal to 0.03% per annum and a notional amount solely
for purposes of calculating interest thereon equal to the Class Balance
of the Class C Certificates immediately prior to such Distribution
Date;
(e) the Class 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 6.25% 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;
(f) 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 6.25% 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;
(g) 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 6.25% 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;
(h) 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 6.25% 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
(i) 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 6.25% 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.
"CMSA IRP": The following six electronic files and eight supplemental
reports attached as Exhibit N, as amended to conform to forms recommended by the
Commercial Mortgage Securities Association: (A) the six electronic files are; 1)
Loan Set-Up File, 2) Loan Periodic Update File, 3) Property File, 4) Bond File,
5) Financial File, and 6) Collateral Summary File; and (B) the eight
supplemental reports are: 1) Watchlist, 2) Delinquent Loan Status, 3) REO
Status, 4) Comparative Financial, 5) Historical Loan Modification, 6) Historical
Liquidation, 7) Operating Statement Analysis Reports and 8) NOI Adjustment
Worksheets; provided, however, that files 4 and 6 shall not be prepared by the
Master Servicer.
"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) 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 (D) the Master Servicer's good faith estimate of the items in
clauses (B) and (C) that will be incurred during the next twelve months (to the
extent not included in clauses (B) and (C) 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 a Specially Serviced 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 or (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.
"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 "ORIX Real Estate Capital Markets, LLC, as
Master Servicer, for the benefit of Norwest Bank Minnesota, National
Association, in trust for the registered holders of J.P. Morgan Commercial
Mortgage Finance Corp. Mortgage Pass-Through Certificates Series 2000-C9
Collection Account".
"Collection Period": With respect to any Distribution Date, the period
beginning on and including 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 and including the first day of the month of such
Distribution Date; provided, that, notwithstanding the foregoing, in the event
that the last day of a Collection Period is not a Business Day, any payments
received with respect to the Mortgage Loans relating to such Collection Period
on the Business Day immediately following such day shall be deemed to have been
received during such Collection Period and not during any other Collection
Period.
"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 Master Servicing Practices or Accepted Special Servicing
Practices, as applicable, and applicable law.
"Corporate Trust Office": With respect to the Trustee, 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
Norwest Bank Minnesota, National Association, 11000 Broken Land Parkway,
Columbia, Maryland 21044-3562, Attention: Corporate Trust Service (CMBS), J.P.
Morgan Commercial Mortgage Finance Corp. Series 2000-C9. With respect to the
Certificate Registrar, the office thereof is initially located at LaSalle Bank
National Association, 135 S. LaSalle Street, Suite 1625, Chicago, Illinois
60603, Attention: Asset-Backed Securities Trust Services Group, J.P. Morgan
Commercial Mortgage Finance Corp., Series 2000-C9.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a Specially
Serviced Mortgage Loan but has ceased to be such in accordance with Section 6.12
(other than by reason of a Liquidation Event occurring in respect of such
Mortgage Loan or a related Mortgaged Property becoming an REO Property).
"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": January 1, 2000.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date, net
of the principal portion of all unpaid Monthly Payments due on or before such
date.
"Defaulted Mortgage Loan": Any Mortgage Loan which is more than 60 days
delinquent in whole or in part in respect of any Monthly Payment or is
delinquent for more than 30 days 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": January 25, 2000.
"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.
"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 Bond Administrator 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 February 2000.
"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 after giving effect to
replacement reserves, capital expenditures, tenant improvements, leasing
commissions, and without giving effect to debt service, depreciation,
amortization and similar non-operating items to (b) the related Monthly Payments
(net of Escrow 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 and the Bond Administrator) (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 more than 30 days, the
long-term unsecured debt obligations of which have a long term rating
of at least "A2" by Moody's and if rated by Fitch, a long-term rating
of "AA" by Fitch; provided that if any such depository institution
ceases to satisfy the requirements set forth above, then each of such
accounts that are held by such depository institution shall be
transferred to a depository institution which satisfies such
requirements within 30 days; or
(b) a segregated trust account or accounts maintained with the
corporate trust department of a federal depository institution or state
chartered depository institution or a U.S. trust company (including the
Trustee and the Bond Administrator) 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 Fitch, 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, the Trustee and the Bond
Administrator 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 "ORIX Real Estate Capital
Markets, LLC, as Master Servicer, for the benefit of J.P. Morgan Commercial
Mortgage Finance Corp. Mortgage Pass-Through Certificates, Series 2000-C9,
Escrow Account".
"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 Master
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 Master Servicing Practices or Accepted
Special Servicing Practices, as applicable, and applicable law.
"Excess Interest": shall mean any accrued interest on an ARD Loan
allocable to the Excess Rate and, to the extent permitted by law, interest
thereon at the Revised Rate.
"Excess Rate": With respect to each ARD Loan after the related
Anticipated Repayment Date, the excess of (i) the applicable Revised Rate over
(ii) the applicable Mortgage Rate in effect prior to the Anticipated Repayment
Date.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"Final Certification": As defined in Section 2.02(b).
"Final Recovery Determination": A determination by the Special Servicer
with respect to any Defaulted Mortgage Loan or REO Mortgage Loan, as certified
in writing by a Servicing Officer setting forth such determination and the
procedures and considerations of the Special Servicer forming the basis of such
determination, that there has been a recovery of all REO Proceeds, Liquidation
Proceeds and other payments or recoveries that the Special Servicer, in its
reasonable good faith judgment, expects to be ultimately recoverable.
"Fitch" : Fitch IBCA, Inc.
"Foreign Currency Exchange Contract": With respect to each Canadian
Loan, each ISDA Master Agreement dated as of January 1, 2000, as amended and
supplemented from time to time, between the F/X Counterparty and the Depositor
and the related confirmations dated January 1, 2000 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
January 1, 2000 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 Market Rate": As defined in Section 4.16.
"F/X Payment Date": 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, the Special 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 Master 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) (I) 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 (II) 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 Bond Administrator pursuant to
Section 3.17 in trust for the Certificateholders, which shall be entitled
"Norwest Bank Minnesota, National Association, as Trustee, in trust for
registered holders of J.P. Morgan Commercial Mortgage Finance Corp., Mortgage
Pass-Through Certificates, Series 2000-C9-- 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 Sellers, the Depositor, the
Special Servicer or the Master Servicer.
"LaSalle": LaSalle Bank National Association, and its successors in
interest.
"LaSalle Loan Sale Agreement": The Mortgage Loan Purchase Agreement,
dated as of January 1, 2000, between LaSalle and the Depositor related to the
transfer and assignment of the Mortgage Loans attached hereto as Exhibit I-2.
"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 Fee": With respect to each Specially Serviced Mortgage
Loan, the fee designated as such and payable to the Special Servicer pursuant to
Section 6.13.
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.00%.
"Liquidation Proceeds": Cash (excluding any Insurance Proceeds)
received in connection with the discounted, whole or partial liquidation of a
Defaulted Mortgage Loan, whether through the sale or assignment of such
Defaulted Mortgage Loan or REO Property, trustee's sale, foreclosure sale or
otherwise.
"Loan Sale Agreements": the MGT Loan Sale Agreement and the LaSalle
Loan Sale Agreement.
"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 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": ORIX Real Estate Capital Markets, LLC, a Delaware
limited liability company, its successor in interest, or any successor servicer
appointed as such as herein provided.
"Master Servicing Fee": As defined in Section 4.12 hereof.
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
related rate set forth under "Master Servicing Fee" in the Mortgage Loan
Schedule.
"Maturity Date": With respect to any Mortgage Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note.
"MGT": Morgan Guaranty Trust Company of New York, and its successors in
interest.
"MGT Loan Sale Agreement": The Mortgage Loan Purchase Agreement, dated
as of January 1, 2000, between MGT and the Depositor relating to the transfer
and assignment of the Mortgage Loans, attached hereto as Exhibit I-1.
"Minimum Master Servicing Fee Rate": A rate of 0.02% per annum.
"Monitoring Certificateholder": Each Holder (or Certificate Owner, if
applicable) of a Certificate of a Monitoring Class as certified to the Trustee
and the Bond Administrator 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 Sellers": MGT and LaSalle, in their capacity as mortgage
loan sellers under the respective Loan Sale Agreements.
"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 and without giving effect to any Excess
Rate on an ARD Loan.
"Mortgaged Property": The underlying property (including any REO
Property) that secures a Mortgage Loan, in each case consisting of a fee simple
or leasehold interest in 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.
"Nonrecoverable Advance": Any Advance previously made or proposed to be
made by the Master 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 Liquidation Proceeds, REO Proceeds, Excess Insurance 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 Master 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 Allocated 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.
"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 and the Bond
Administrator, 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.
"ORECM": ORIX Real Estate Capital Markets, LLC, and its successors in
interest.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
"P&I Advance": Any amounts identified in Section 4.05(a) as a P&I
Advance.
"Pass-Through Rate": With respect to any Distribution Date and any
Class, other than the Residual Certificates, a per annum rate equal to the
corresponding Pass-Through Rate as set forth in the Preliminary Statement. The
Residual Certificates will not have a Pass-Through Rate.
"Payment Reserve": With respect to a Mortgage Loan, the amount, if any,
of principal and interest payable thereon required, pursuant to the related
Mortgage Loan Documents, to be deposited into an escrow account to cover a
portion of the related Mortgagor's debt service obligations thereunder.
"Percentage Interest": With respect to any Class of Certificates, the
portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the initial Certificate Balance or initial
Notional Amount of such Certificate as of the Delivery Date, as specified on the
face thereof, and the denominator of which is the Original Class Balance or
Notional Amount of the relevant Class.
"Permitted Investments": Any one or more of the obligations and
securities listed below that provide for a date of maturity of not more than 30
days but in any event not later than the date prior to the date such funds will
be required to be distributed:
(i) direct obligations of, and obligations fully guaranteed
by, the United States of America, or any agency or
instrumentality of the United States of America the
obligations of which are backed by the full faith and
credit of the United States of America;
(ii) federal funds, demand and time deposits in, certificates
of deposits of, or bankers' acceptances issued by, any
depository institution or trust company incorporated or
organized under the laws of the United States of America
or any state thereof and subject to supervision and
examination by federal and/or state banking authorities,
the commercial paper or other short-term debt obligations
of such depository institution or trust company (or, in
the case of a depository institution or trust company
which is the principal subsidiary of a holding company,
the commercial paper or other short-term debt obligations
of such holding company) which has the Required Rating;
(iii) commercial or finance company paper (including both
non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a
specified date not more than 270 days after the date of
issuance thereof) that has the Required Rating for
short-term debt;
(iv) repurchase obligations with respect to any security
described in clause (i) above entered into with a
depository institution or trust company (acting as
principal) meeting the rating standards described in
clause (ii) above and having maturities of not more than
365 days;
(v) units of investment funds (including money market funds)
rated in the highest long-term category by Fitch and
Moody's or if not rated by Fitch and Moody's then
otherwise approved by Fitch and Moody's; and
(vi) 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(o) that there are no
prepayments on the Mortgage Loans. With respect to all ARD Loans, it is assumed
for purposes of Section 3.11(o) 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 date of prepayment, 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, in each case to the extent not previously advanced, 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 during the related
Remittance Period, (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, Excess
Insurance Proceeds, Excess Condemnation Proceeds, REO 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 Persons 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 Persons 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 either (A) not less
than (x) one rating category below the highest rating for
the outstanding Certificates, but not less than "Baa2",
by Moody's and (y) "A" by Fitch, if rated by Fitch, or
(B) "A-(IX)" by AM Best, Inc.; and
(iii) with respect to any insurance required pursuant to
Section 6.03(b), duly qualified as such under the laws of
the state 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 October 2032,
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 Fitch and Moody's.
"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, 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; (e) the Foreign Currency Exchange Contracts;
and (f) all Insurance Policies with respect to the Mortgage Loans listed on the
Mortgage Loan Schedule.
"REMIC I Uncertificated Interests": Each of the one hundred forty
interests with a principal balance and interest rate equal to that of one of the
Mortgage Loans.
"REMIC II": A segregated pool of assets consisting of one hundred forty
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.
"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
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 Tax": As defined in Section 6.04(e).
"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 or (b) the occurrence of any
event giving rise to a subsequent Collateral Value Adjustment (including the
delinquency referred to in clause (iii) of the last sentence of the definition
of "Collateral Value Adjustment") more than twelve months after an appraisal was
obtained with respect to a previous Collateral Value Adjustment.
"Required Rating": The following ratings:
(a) with respect to commercial paper, short-term debt obligations or
other short-term deposits, the highest short-term rating category of each
Rating Agency (or if such obligations are not rated by Fitch, the highest
short-term rating category of Moody's); or
(b) with respect to long-term debt obligations, the long-term rating of
"AA" by Fitch and "Aa3" by Moody's (or, if such obligations are not rated
by Fitch, the long-term rating of "Aa3" by Moody's).
"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 or the
Bond Administrator, 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.
"Restricted Period": The period of 40 consecutive days from the later
of (i) the day on which the Certificates are first offered to persons other than
distributors (as defined in Regulation S) in reliance on Regulation S and (ii)
the Delivery Date.
"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.
"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 trailing 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 the Master Servicer consistent with
Accepted Master Servicing Practices or by the Special Servicer consistent with
Accepted Special Servicing Practices, as applicable, with respect to any
Mortgage Loan.
"Servicing Fee": With respect to any Mortgage Loan, the Master
Servicing Fee and/or the Basic Special Servicing Fee, as applicable.
"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, the Bond Administrator 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.
"Special Servicer": ORIX Real Estate Capital Markets, LLC, a Delaware
limited liability company, its successor in interest, or any successor servicer
appointed as such as herein provided.
"Startup Day": The Delivery Date.
"State Tax Laws": The laws of the states of New York, Texas, Illinois,
Maryland and Massachusetts as well as any state the applicability of which to
the Trust or the REMICs shall have been confirmed to the Trustee and the Bond
Administrator in writing either by the delivery to the Trustee and the Bond
Administrator of an Opinion of Counsel to such effect (provided that the Trustee
and the Bond Administrator shall have no obligation to seek or pay for any such
Opinion of Counsel), or by the delivery to the Trustee and the Bond
Administrator 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 unscheduled payments (other than
Principal Prepayments) including 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 the allocation of a
Realized Loss.
With respect to any REO Mortgage Loan, as of any date of determination, an
amount (not less than zero) equal to (x) the Stated Principal Balance of the
related Mortgage Loan as of the date of the related REO Acquisition, minus (y)
the sum of:
(i) the principal portion of each P&I Advance made with
respect to such REO Mortgage Loan that was distributed to
Certificateholders before such date of determination;
(ii) the principal portion of all Insurance Proceeds,
Liquidation Proceeds and REO Proceeds received with
respect to such REO Mortgage Loan, to the extent
distributed to Certificateholders before such date of
determination; and
(iii) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from the allocation of a
Realized Loss.
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": Norwest Bank Minnesota, National Association or its
successor in interest in its capacity as Trustee hereunder, or any successor
trustee appointed as herein provided.
"Trustee Fee": The aggregate fee payable to the Trustee and the Bond
Administrator 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 ABN AMRO
Incorporated.
"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 Mortgage
Loan and any Distribution Date, any Allocated Net Prepayment Premiums for such
Distribution Date calculated under the related Mortgage Loan Documents by
reference to a U.S. or Canadian 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.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to Section 6.13.
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as to
which a Workout Fee is payable, 1.00%.
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 the related payments are 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., Stated 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.
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 establish the Trust Fund, appoint the Trustee as trustee of the
Trust Fund and 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
applicable Mortgage Loan Seller or the prior holder of
record, in blank or to the order of "Norwest Bank
Minnesota, National Association, as trustee for J.P.
Morgan Commercial Mortgage Finance Corp. Mortgage
Pass-Through Certificates Series 2000-C9";
(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 applicable
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: "Norwest Bank
Minnesota, National Association, as Trustee for J.P.
Morgan Commercial Mortgage Finance Corp. Mortgage
Pass-Through Certificates Series 2000-C9", 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
applicable 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: "Norwest
Bank Minnesota, National Association, as Trustee for J.P.
Morgan Commercial Mortgage Finance Corp. Mortgage
Pass-Through Certificates Series 2000-C9", 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 original appraisal;
(xii) any escrow, guarantee, environmental liability agreement,
intercreditor agreement, management agreement, or lockbox
arrangement, in each case if any such document exists;
and
(xiii) with respect to each Canadian Loan, a copy of the related
Foreign Currency Exchange Contract; together with the FX
Assignment 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 and the Assignment of Leases and
Rents specified in clauses (iv) and (v) respectively, 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: "Norwest Bank Minnesota, National
Association, as Trustee for J.P. Morgan Commercial Mortgage Finance Corp.
Mortgage Pass-Through Certificates Series 2000-C9" 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), (ii), (iv), (vii) and (xiii) 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
is hereby directed and agrees to 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, or cause the Custodian to 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 applicable Mortgage Loan Seller to
repurchase) the related Mortgage Loan pursuant to Section 2.04. 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. Neither the Trustee nor any Custodian
shall make any representation as to (i) the validity, legality, sufficiency,
enforceability or genuineness of any such documents contained in each Mortgage
Loan File or any of the Mortgage Loans identified in the Mortgage Loan Schedule
or (ii) the collectibility, insurability, effectiveness or suitability of any
such Mortgage Loan.
(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 90 days from the date of such notice the
Depositor shall repurchase (or cause the applicable Mortgage Loan Seller to
repurchase) 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 (at
the expense of the Depositor or the applicable Mortgage Loan Seller), 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, the Bond Administrator 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, the Bond Administrator and
the Depositor, as of the Delivery Date, that:
(i) Due Organization and Authority.
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(A) such Servicer has or shall obtain all licenses necessary
to carry on its business as now being conducted and is or will
become licensed, qualified and in good standing in each state or
jurisdiction where a Mortgaged Property is located, if the laws
of such state or jurisdiction 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 and the Servicer
has duly executed and delivered this Agreement;
(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
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transactions contemplated by this Agreement are in the
ordinary course of business of such Servicer;
(iii) Conflicts. Neither the execution and delivery of this
---------
Agreement 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 Master
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 Sellers under the
Loan Sale Agreements, 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 each Loan Sale Agreement, including the Depositor's
right to require the applicable Mortgage Loan Seller to cure any material breach
of a representation or warranty by such 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, the Bond Administrator 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 a Mortgage Loan Seller under a
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 applicable 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 a 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 applicable Mortgage Loan Seller or its
designee, as applicable, the related Mortgage Loan File and shall execute and
deliver such instruments of transfer or assignment as shall be provided to it
(in recordable form if recording is appropriate), in each case without recourse,
as shall be necessary to vest in the Depositor, the applicable 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 applicable Mortgage Loan Seller all documents and records
maintained by such Servicer and requested by the Depositor or such Mortgage Loan
Seller; provided, that such Servicer may retain copies of such documents and
records at its own expense. The Depositor, in the case of a repurchase required
solely as a result of a breach of any representation or warranty of the
Depositor set forth in Section 2.03(a) or the applicable Mortgage Loan Seller,
in all other circumstances, 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 Agreements.
Section 2.05 Execution of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans and
the Loan Sale Agreements to the extent set forth herein and, concurrently with
such assignment, has, at the direction of the Depositor, executed and caused the
Certificate Registrar to authenticate and deliver to or upon the order of the
Depositor, in exchange for the Mortgage Loans, Certificates in authorized
denominations evidencing beneficial ownership of the entire Trust Fund.
ARTICLE III
GENERAL SERVICING AND ADMINISTRATION
Section 3.01 Access to Certain Documentation Regarding the Mortgage Loans
and This Agreement.
Upon reasonable advance written notice, each Servicer shall give the
Trustee, the Bond Administrator, 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 at
their expense, except as to the Rating Agencies) 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, the Bond Administrator
and the Trustee, on or before March 31 of each year, beginning after the first
anniversary of the Delivery Date, 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 after the first
anniversary of the Delivery Date, each Servicer, at its expense, shall cause a
firm of independent public accountants that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Depositor, the Bond Administrator 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 liability company, 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
all or substantially all of 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 Master 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 members, managers, 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 Master 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 member,
manager, 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, the Bond Administrator 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 (except that this
provision shall not preclude the hiring by a Servicer of a third party to
perform property inspections, without diminution of the obligation or liability
of the related Servicer under this Agreement) 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 and the Bond
Administrator. Notwithstanding 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 Trust Fund.
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 Master 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 and the Bond Administrator 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, the Bond Administrator 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, the Bond Administrator and each other Servicer.
Section 3.08 Indemnity.
(a) Each Servicer shall indemnify the Depositor, the Trustee, the Bond
Administrator, the other Servicer (and each of their respective directors,
members, managers, officers, employees and agents) 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, members,
managers, 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 claim or
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, the Bond Administrator 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 and
the Bond Administrator if indemnification is sought from the Trust Fund (each of
the Servicers and the Trust Fund, 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 the first two sentences of Section 3.06 or pursuant to 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, the Bond Administrator or the Trustee. The termination of a Servicer's
responsibilities and duties under this Agreement pursuant to the aforementioned
Sections (or portions thereof) 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. All costs
incurred in connection with the termination of a Servicer shall be paid by the
predecessor Servicer upon presentation of reasonable documentation of such
costs. If such predecessor Servicer defaults in its obligation to pay such
costs, such costs shall be paid by the successor Servicer (in which case, the
successor Servicer shall be entitled to reimbursement therefor from the assets
of the Trust Fund). The predecessor Servicer shall remain liable to the Trust
Fund for such costs.
(b) Any successor appointed as provided herein shall execute,
acknowledge and deliver to each Servicer, the Trustee and the Bond
Administrator, 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,
the Bond Administrator 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 and any additional compensation payable to it pursuant to this
Agreement, 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 and any additional compensation
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 Bond Administrator on behalf of 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, the Bond Administrator 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 Bond
Administrator 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 Bond Administrator shall prepare or cause to be prepared all of
the Tax Returns that it reasonably determines are required with respect to 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 Bond Administrator without any right of reimbursement
therefor.
(f) The Bond Administrator 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 and the Bond Administrator 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 and the Bond Administrator'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 and the Bond Administrator, to
the extent reasonably requested by the Trustee and the Bond Administrator to do
so). None of the Master Servicer, the Special Servicer, the Bond Administrator
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, (iii) to
the Bond Administrator, if such tax arises out of or results from a breach by
the Bond Administrator of its obligations under this Agreement and (iv)
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 Bond Administrator 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 or REMIC
III unless the Master Servicer, the Bond Administrator 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 or REMIC III will not cause any of REMIC I, REMIC II or REMIC III to
fail to qualify as REMICs at any time that any Certificates are outstanding or
subject any of REMIC I, REMIC II or 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, the Bond
Administrator nor the Trustee shall enter into any arrangement by which REMIC I,
REMIC II or 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 2032, 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 Bond Administrator
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, the Bond Administrator 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, in each case 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 Bond
Administrator, within ten (10) days after the Delivery Date, and thereafter on
an ongoing basis, all information or data requested by the Bond Administrator
that the Bond Administrator 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, the Trustee and the Depositor shall provide on a timely
basis to the Bond Administrator or its designee such information with respect to
the Trust Fund as is in its possession and reasonably requested by the Bond
Administrator to enable it to perform its obligations under this Article. The
Bond Administrator shall be entitled to rely conclusively upon all such
information so provided to it without recalculation or other investigation.
(p) The Bond Administrator 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 Bond Administrator and the Depositor,
provided that the Bond Administrator 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 Bond Administrator for the benefit or protection of the Certificateholders.
(q) At the direction of the Depositor, the Bond Administrator 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; provided, however, that after the Delivery
Date, neither Servicer shall enter into a subservicing agreement with a new
subservicer unless either (a) Fitch shall have confirmed in writing to the
Trustee and the Bond Administrator that such contract will not result in a
qualification, downgrade or withdrawal of the then current ratings on the
Certificates or (b) such contract relates to less than 25% of the Mortgage Loans
by outstanding principal balance. 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 Bond Administrator, 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, the
Bond Administrator 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 Master 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 or, if the Trustee is not the Custodian,
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, 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 Custodian may 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.
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 or, if the Trustee is not the
Custodian, the Custodian 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 (the latter, with a copy
to the Master Servicer) shall forward to the Trustee or, if the Trustee is not
the Custodian, 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 Trustee
or, if the Trustee is not the Custodian, 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 Trustee
or, if the Trustee is not the Custodian, 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.
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.
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.
Section 3.17 Interest Reserve Account.
(a) The Bond Administrator 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 Bond
Administrator and other accounts of the Bond Administrator. 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 Bond Administrator shall calculate the Withheld Amount with respect to each
Interest Reserve Loan. On each such Master Remittance Date, the Bond
Administrator 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 Bond
Administrator 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 Bond Administrator shall transfer to the Certificate Account
the aggregate of all Withheld Amounts on deposit in the Interest Reserve
Account.
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 Master
Servicing Practices.
(b) Subject to Accepted Master 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 submit to the Trustee for execution 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 that the
contemplated action will not result in an Adverse REMIC Event in accordance with
Accepted Master Servicing Practices or in reliance upon an Opinion of Counsel.
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.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall without the Trustee's or the Bond
Administrator's written consent: (i) except as relating to a Mortgage Loan which
the Master Servicer or the Special Servicer, as applicable, is servicing
pursuant to its respective duties herein (in which case such Servicer shall give
notice to the Trustee or the Bond Administrator, as applicable, of the
initiation), initiate any action, suit or proceeding solely under the Trustee's
or the Bond Administrator's name without indicating the Master Servicer's or
Special Servicer's, as applicable, representative capacity, or (ii) take any
action with the intent to, and which actually does cause, the Trustee or the
Bond Administrator to be registered to do business in any state.
(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 Master 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
Master 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 Master 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 and the Bond
Administrator 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 for any non-Specially Serviced
Mortgage Loan and the Special Servicer shall calculate and the Master Servicer
shall verify such calculation for any Specially Serviced Mortgage Loan, 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 Master 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, the Bond Administrator and the
Special Servicer in writing of the location and account number thereof and shall
give the Trustee, the Bond Administrator 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 Sections 6.05(c), 6.07(a) and 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 clauses (vi) and (viii)
above), (2) amounts representing fees, default interest or late charge
penalties (to the extent not used to pay interest at the Advance Rate on
Advances) or modification fees, assumption fees (subject to Section 4.08(d)),
processing fees, 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 applicable, as
additional servicing compensation hereunder, (3) any amounts received from a
Mortgagor to reimburse such Master Servicer or Special Servicer, as
applicable, for expenses pursuant to the terms of the Mortgage Loan, including
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 Basic Special Servicing Fee, if applicable;
(iii) to reimburse the Trustee and itself, 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 Section 4.05(c),
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) [RESERVED];
(vi) on each Master Remittance Date, to pay the Trustee and
itself, 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 or late payment charges
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,
whether or not deemed to be a Nonrecoverable Advance, the
reimbursement of such Advance and interest on such
Advance at the Advance Rate shall be solely from amounts
collected on the Canadian Loans as a group;
(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 Bond Administrator 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 Bond Administrator.
(a) On each Master Remittance Date by 2:00 PM, New York City time, the
Master Servicer shall (1) withdraw from the Collection Account and remit to the
Bond Administrator 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 Bond Administrator any P&I Advances required to be made
on or prior to such Master Remittance Date pursuant to Section 4.05(a). If the
Bond Administrator fails to receive by 2:00 p.m., New York City time on the
Master Remittance Date any or all of the amounts required by this clause (a),
the Bond Administrator shall immediately notify the Master Servicer of such
failure.
(b) With respect to any Master Servicer remittance received by the Bond
Administrator after the Master Remittance Date (including any P&I Advance), the
Master Servicer shall pay to the Bond Administrator 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 Bond Administrator 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 has not been received by the Master Servicer, the Master Servicer
shall remit to the Bond Administrator 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 Master 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 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 Bond
Administrator 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 by 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 Bond Administrator
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 and the Bond Administrator a Nonrecoverable Advance
Certificate.
(b) [RESERVED]
(c) Subject to Section 6.10(b), the Master Servicer, as requested by
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 Master Servicer shall only make Servicing
Advances with respect to any Mortgage Loan from its own funds to the extent
there are not sufficient funds in the related REO Account (taking into account
any necessary reserve amounts as to REO Loans) or the related Escrow Account
available to cover any such expenses and as permitted under the Mortgage Loan
Documents and the Master Servicer shall not be required to make a Nonrecoverable
Advance; and provided, further, that the Master Servicer shall 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 Master 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 Master Servicer shall not be entitled to the payment of interest at the
Advance Rate on any Advance or portion thereof with respect to any Specially
Serviced Mortgage Loan subsequently determined to be a Nonrecoverable Advance or
remaining unreimbursed following the occurrence of the related Liquidation
Event; provided, however, that the Master Servicer shall be entitled to any such
interest (i) if in the case of the Master Servicer, it shall certify to 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.
(d) Subject to Section 4.05(c), the Master Servicer shall make any
Advance required under this Agreement upon receiving written notice from the
Special Servicer pursuant to Section 6.10(a). Subject to Section 4.05(b) and
Section 6.10(c), the Master Servicer from its own funds shall reimburse the
Special Servicer within 5 Business Days of the receipt of written notice from
the Special Servicer pursuant to Section 6.10(b).
(e) The Trustee, and subject to Section 4.05(c), the Master 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.
(f) If the Master Servicer upon consultation with 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, the Master Servicer shall deliver to the Trustee and the Bond
Administrator a Nonrecoverable Advance Certificate.
(g) 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 in Canadian dollars 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 Bond Administrator 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.
(h) The Master Servicer shall determine on each Business Day whether
amounts are available in the Collection Account or Escrow Account to reimburse
the Trustee or itself 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 and itself, in that order,
on each Business Day.
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 a Mortgage Loan, 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, the Bond Administrator and the
Special Servicer in writing of the location and account number of each
subaccount in the Escrow Account and shall give the Trustee, the Bond
Administrator 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
pursuant to the second sentence of Section 4.06(b).
(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 Master 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 Master 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(e) and 6.10(e), 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 be entitled to
reimbursement therefore with interest thereon, subject to Section 4.05(c), at
the Advance Rate pursuant to Section 4.03(a) or Section 4.06(c).
Section 4.07 Maintenance of Insurance.
(a) The Master Servicer shall use its best efforts consistent with
Accepted Master 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 (if available) 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 at commercially reasonable rates. 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 extent 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 Master 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
(as verified by the Bond Administrator), then the Master Servicer shall obtain
written confirmation from 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 Moody's, as a result thereof. Prior to
entering into any such assumption agreement, if the related Mortgage Loan,
together with any other Mortgage Loans cross-collateralized therewith, is one of
the ten largest of the then outstanding Mortgage Loans, by Stated Principal
Balance, then the Master Servicer shall obtain written confirmation from Fitch
stating that none of the then-current rating or ratings of all outstanding
classes of the Certificates would be downgraded or withdrawn by Fitch, as a
result thereof. The Master Servicer shall promptly deliver such confirmation to
the Bond Administrator and Trustee.
(d) The Master Servicer shall retain all fees collected for processing
and entering into an assumption or substitution of liability agreement relating
to non-Specially Serviced Mortgage Loans, subject to the terms of any related
subservicing agreement.
(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 the Bond Administrator 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 and the Bond Administrator 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
and the Bond Administrator at such times and in such manner as are consistent
with Accepted Master 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 by the Special Servicer 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 or Special Servicer shall be delivered to
the other Servicer promptly, but in any event within 30 days after such
inspection.
(b) The Master Servicer shall, within thirty (30) 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 for the trailing or
quarterly information received (or 180 calendar days after the end of each year
for annual information received), commencing in the quarter ending on March 31,
2000 for current year trailing data and January 1, 2001 for annual, year end
data, the Master Servicer shall deliver to the Trustee, the Bond Administrator
and each Rating Agency the Operating Statement Analysis Reports and NOI
Worksheets 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. The
Special Servicer shall provide to the Master Servicer the related data fields
for, and hard copies of, operating statements and rent rolls at least 15 days
(or some other time as agreed by the Master Servicer and the Special Servicer)
prior to the applicable time period for the Master Servicer's delivery of the
Operating Statement Analysis Reports and the NOI Worksheets as set forth in
Section 4.09(b).
Section 4.10 Reports of the Master Servicer.
(a) The Master Servicer shall prepare, or cause to be prepared, and
deliver to the Bond Administrator (and the Special Servicer, if requested), in
an electronic format reasonably acceptable to the Bond Administrator, consistent
with Accepted Master Servicing Practices and convertible to EDGAR format, not
later than (i) 11:00 a.m. New York City time on the second (2nd) Business Day
immediately preceding each Distribution Date, a copy of the CMSA Loan Periodic
Update File, (ii) 12:00 noon New York City time on the first (1st) Business Day
immediately preceding each Distribution Date, all remaining CMSA IRP Reports
(except those not prepared by the Master Servicer) and the Payments Received
After Determination Date Report in the form of Exhibit O hereto. 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 Bond Administrator'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 Bond Administrator, the Master Servicer shall prepare such other reports as
may be reasonably requested in writing by the Bond Administrator 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 Bond Administrator (other than the Rating Agencies, in which case
such expenses shall be an expense of the Trust Fund and paid as a Servicing
Advance).
(d) The Master Servicer shall prepare and deliver to the F/X
Counterparty, Depositor and the Bond Administrator, not later than 3:00 p.m. 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
to make any payment on an F/X Payment Date.
(f) The Master Servicer or Special Servicer, as applicable, shall
notify the other party, the Depositor and the F/X Counterparty within one
Business Day, with copy to the Trustee and the Bond Administrator, 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) 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 the product of
(a) the related Master Servicing Fee Rate and (b) the Stated Principal Balance
of such Mortgage Loan as of the Distribution Date in the preceding calendar
month calculated for the same period respecting which any related interest
payment on each Mortgage Loan is calculated. 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 and 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(b), 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, ORECM 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 ORECM 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., ORECM 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 ORECM 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 excess of (i) the sum of any Prepayment Interest Excess and any Prepayment
Premium for such Distribution Date over (ii) any Prepayment Interest Shortfall
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)(viii).
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 Trustee, the Bond
Administrator 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), (iv), (v) and (viii)
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 Bond Administrator on the Master
Remittance Date pursuant to Section 4.04.
ARTICLE V
[RESERVED]
ARTICLE VI
SPECIAL SERVICING
Section 6.01 The Special Servicer.
The Special Servicer, as independent contract servicer, shall,
notwithstanding any other provisions hereof, service and administer the
Specially Serviced Mortgage Loans and REO Property on behalf of and in the best
interests of and for the benefit of the Certificateholders in accordance with
this Agreement and Accepted Special Servicing Practices. In the event that a
Mortgage Loan becomes a Specially Serviced Mortgage Loan, subject to the
provisions contained in this Article VI, the Master Servicer shall continue to
collect all Monthly Payments called for under the terms and provisions of the
Mortgage Loan in accordance with Section 4.02, except as otherwise directed by
the Special Servicer in writing.
Section 6.02 Transfer to Special Servicing.
(a) The Master Servicer shall notify the Trustee, the Bond
Administrator, the Depositor and the Special Servicer as promptly as practicable
by telephone and in an electronic format reasonably acceptable to the Bond
Administrator 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 Bond Administrator, 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 T 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 Bond Administrator the name
of the current Directing Certificateholder. Upon receipt of the name of such
current Directing Certificateholder from the Bond Administrator, the Special
Servicer shall notify the Directing Certificateholder of the occurrence of such
Servicing Transfer Event.
(b) Subject to Sections 6.03(c) and 6.14 below, Accepted Special
Servicing Practices 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 pursuant to
Accepted Special Servicing Practices 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 and the Bond Administrator 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, as to any Specially
Serviced Mortgage Loan the Special Servicer shall assume the rights and
obligations of the Master Servicer with respect to a Mortgage Loan set forth in
Sections 4.08 and 4.09(b) (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.
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 Bond
Administrator, 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, the Bond
Administrator, 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
and the Bond Administrator of such rejection and deliver to the Trustee and the
Bond Administrator a proposed notice to Certificateholders which shall include
the Asset Strategy Report, and the Bond Administrator 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
Bond Administrator'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 Bond
Administrator 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 Bond Administrator with evidence
satisfactory to the Special Servicer and the Bond Administrator of its interest
in a Certificate pursuant to Section 11.04), or Rating Agency, the Bond
Administrator shall mail, at the expense of the requesting party, 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, unless prohibited by
applicable law or the related Mortgage Loan documents and only upon execution of
a confidentiality agreement by the requesting party; provided, however that no
Asset Strategy Report shall be delivered to the Mortgagor on the related
Specially Serviced Mortgage Loan, an affiliate thereof or a Person acting on
behalf of the Mortgagor.
(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 Bond Administrator shall have obtained an acknowledgment in the form of
Exhibit J-1 from the recipient thereof that U.S. securities law may restrict the
use of the information in the Asset Strategy Report. In addition, prior to
delivery of an Asset Strategy Report to any Certificateholder or Certificate
Owner, the Bond Administrator shall have obtained a certification and agreement
from the recipient in the form of Exhibit J-2 thereof to the effect that it is
not the Mortgagor with respect to the related Mortgage Loan, an affiliate
thereof or a Person acting on behalf of such Mortgagor and that it will protect
the confidentiality of such information.
(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, the cost of which shall be
an expense of the Trust Fund, 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 and the Bond
Administrator (which shall be an expense of the Trust) an Opinion of Counsel,
addressed to the Trustee, the Bond Administrator, and the Master Servicer, to
the effect that the holding by the Trust Fund of such REO Property subsequent to
the third 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 and the Bond Administrator 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 Bond Administrator on behalf of 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.
None of the Special Servicer, the Bond Administrator or 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, the Bond Administrator 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) REO Proceeds shall be remitted within one Business Day of its
receipt 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, the Bond Administrator 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, the Bond Administrator 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 Remittance 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 Remittance to Master Servicer of Non-REO Proceeds.
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 from the REO Account.
On or prior to 1:00 p.m., New York 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 10:00 a.m., New York City time, one Business Day after the
Determination Date for the related Remittance Period.
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, the Bond Administrator and each
Rating Agency, via facsimile as requested, and with a hard copy sent on the same
day by first-class mail and in electronic format reasonably acceptable to the
Master Servicer, the Bond Administrator and the Trustee and consistent with
Accepted Special Servicing Practices) not later than 12:00 noon, New York City
time, the third (3rd) Business Day immediately preceding each Distribution Date,
a copy of all data fields needed to produce the CMSA IRP (excluding the Bond
File and Collateral Summary File) for the preceding Remittance Period, 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, the Bond Administrator 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) Within ten Business Days of receipt, 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 immediately preceding calendar month (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 Bond Administrator's reasonable request, the Special Servicer shall
prepare, or cause to be prepared, and deliver to the Master Servicer such
information with respect to each Specially Serviced Mortgage Loan and each REO
Mortgage Loan as the Master Servicer deems necessary or desirable for each
Certificateholder to prepare its federal, state and local income tax returns.
(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 not later than the
following Business Day with the Master Servicer to reconcile their records.
(e) Upon prior written request of the Master Servicer, the Trustee, the
Bond Administrator, 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 Fund and paid as a Servicing Advance.)
(f) 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 that the Special Servicer has obtained the Opinion of
Counsel referenced in Section 6.03(h).
Section 6.10 Advances.
(a) The Special Servicer shall notify the Master Servicer and the Bond
Administrator in writing as soon as practicable if an Advance is required on any
Specially Serviced Mortgage Loan.
(b) The Special Servicer may make any Servicing Advances on a Specially
Serviced Mortgage Loan to the extent otherwise required to be made by the Master
Servicer pursuant to Section 4.05. The Special Servicer shall give written
notice via facsimile to the Master Servicer and Bond Administrator that it
intends to make a Servicing Advance prior to making such Servicing Advance.
(c) The Special Servicer shall be entitled to reimbursement from the
Master Servicer for such Servicing Advance (including any interest thereon at
the Advance Rate) subject to the limitations set forth in Section 4.05(c),
provided that, if the Master Servicer determines that such a Servicing Advance
is a Nonrecoverable Advance, the Special Servicer shall not be entitled to any
reimbursement from the Master Servicer; provided, however, that to the extent
not reimbursed by the Master Servicer within 5 Business Days of making such
Servicing Advance, the Special Servicer shall be entitled to reimbursement from
the Trust Fund, subject to the prior sentence, upon written notice to the Master
Servicer and Bond Administrator of the failure of the Master Servicer to
reimburse the Special Servicer.
(d) If the Special Servicer determines, in good faith judgment, that
any amount expended by it from its own funds pursuant to clause (b) above is a
Nonrecoverable Advance, such determination shall be evidenced by a
Nonrecoverable Advance Certificate delivered to the Trustee and the Master
Servicer.
(e) Except as otherwise set forth in Section 4.05(c), the Special
Servicer shall be entitled to interest on any Servicing Advance it makes with
respect to a Mortgage Loan. Such interest shall accrue at the Advance Rate from
the date on which such Servicing Advance was made to but not including the
Business Day on which the Special Servicer is reimbursed pursuant to this
Agreement.
Section 6.11 Environmental Considerations.
(a) The Special Servicer shall not obtain title for the Trust Fund to a
Mortgaged Property as a result or in lieu of foreclosure or otherwise, nor shall
otherwise acquire possession of, or take other action with respect to, any
Mortgaged Property, if, as a result of any such action, the Trust Fund, the
Trustee, the Bond Administrator, 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, the Bond Administrator 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 Master Servicer as a Servicing Advance and the Master 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, the Trustee, the
Bond Administrator 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, the Bond Administrator 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.
(a) Subject to Section 6.16(c), as compensation for its activities
hereunder, the Special Servicer shall be entitled to receive the Basic Special
Servicing Fee with respect to each Specially Serviced Mortgage Loan. As to each
Specially Serviced Mortgage Loan, the Basic Special Servicing Fee shall accrue
from time to time at the Basic Special Servicing Fee Rate on the same basis and
the same principal amount respecting which any related interest payment due on
such Specially Serviced Mortgage Loan or deemed to be due on such REO Loan is
computed. The Basic Special Servicing Fee with respect to each Specially
Serviced Mortgage Loan shall cease to accrue as of the date a Liquidation Event
occurs in respect thereof. As to each Specially Serviced Mortgage Loan, earned
but unpaid Basic Special Servicing Fee shall be payable monthly out of general
collections on the Mortgage Loans on deposit in the Collection Account.
(b) As further compensation for its activities hereunder the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the Workout Fee
shall be payable from, and shall be calculated by application of the Workout Fee
Rate to, each collection of interest and principal received on such Mortgage
Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if a Servicing
Transfer Event occurs with respect thereto or if the related Mortgaged Property
becomes an REO Property; provided that a new Workout Fee will become payable if
and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the
Special Servicer is terminated other than for cause or resigns in accordance
with Section 3.06, it shall retain the right to receive any and all Workout Fees
payable in respect of Mortgage Loans that became Corrected Mortgage Loans during
the period that it acted as Special Servicer and were still such at the time of
such termination or resignation (and the successor Special Servicer shall not be
entitled to any portion of such Workout Fees), in each case until the Workout
Fee for any such loan ceases to be payable in accordance with the preceding
sentence.
(c) As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan as to which it receives any full, partial
or discounted payoff or any Liquidation Proceeds (other than in connection with
the purchase of any such Specially Serviced Mortgage Loan or REO Property by the
Special Servicer, a Monitoring Certificateholder, the Master Servicer or the
Depositor). As to each such Specially Serviced Mortgage Loan or REO Property,
the Liquidation Fee shall be payable from, and shall be calculated by
application of the Liquidation Fee Rate to, such full, partial or discounted
payoff and/or such Liquidation Proceeds (net of the related costs and expenses
associated with related liquidation). No Liquidation Fee will be payable with
respect to any Specially Serviced Mortgage Loan solely by virtue of such
Mortgage Loan becoming a Corrected Mortgage Loan.
(d) Notwithstanding anything to the contrary herein, a Liquidation Fee
and a Workout Fee relating to the same Mortgage Loan shall not be paid from the
same proceeds on or with respect to such Mortgage Loan.
(e) Subject to the Special Servicer's right to employ Sub-Servicers,
the Special Servicer's right to receive the Basic Special Servicing Fee, the
Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(f) 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 and interest
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 and the Bond Administrator 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
(except if an appraisal has been conducted within the 12 month period preceding
such event). The cost of such appraisal shall be reimbursed to the Special
Servicer as a Servicing Advance.
(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 Master Servicer).
(c) The Special Servicer shall determine and report to the Trustee, the
Bond Administrator 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 and the Bond Administrator. 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 ongoing Workout 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 any Basic Special Servicing Fee, Workout Fees or Liquidation Fees
with respect thereto. Subject to clause (c) below, the Replacement Special
Servicer shall be entitled to the Basic 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) all amounts accrued and owing to it under this Agreement prior to the
effective date of such resignation and (ii) 50% of any Workout Fee or
Liquidation Fee for any Specially Serviced Mortgage Loan that did not become a
Corrected Mortgage Loan prior to the termination or replacement of such Special
Servicer (the Replacement Special Servicer shall be entitled to 50% of any
Workout Fee or Liquidation Fee for such Specially Serviced Mortgage Loan)
provided that if such Mortgage Loan becomes a Corrected Mortgage Loan and then
once again becomes a Specially Serviced Mortgage Loan, the Replacement Special
Servicer shall thereafter be entitled to 100% of any Workout Fee or Liquidation
Fee.
(d) The Directing Certificateholder shall be responsible for paying any
costs associated with such replacement, including reasonable costs of any
servicing transfer.
ARTICLE VII
PAYMENTS TO CERTIFICATEHOLDERS
Section 7.01 Certificate Account; Remittances to the Bond Administrator.
(a) The Bond Administrator 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 Bond Administrator 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 Bond Administrator 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 Bond Administrator, 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 Bond Administrator pursuant to
Section 4.04.
Section 7.02 Distributions.
(a) On each Distribution Date, the Bond Administrator shall apply
amounts on deposit in the Certificate Account (which shall remain uninvested)
first to payment to the Bond Administrator and the Trustee of their respective
portions of the Trustee Fee and reimbursable expenses of the Trustee and Bond
Administrator, 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, (x) the related Class Portion
of any U.S. Treasury Net Prepayment Premiums for each
Mortgage Loan to each Class of Certificates and (y) any
Non-U.S. Treasury Net Prepayment Premium, to the Class X
Certificates;
(ii) to distributions of the Interest Distribution Amounts for
such Distribution Date on the Class A1, Class A2 and
Class X Certificates, pro rata, based on their respective
Interest Distribution Amounts;
(iii) to distributions of the Principal Distribution Amount for
such Distribution Date to Class A1 Certificates until the
Class Balance thereof is reduced to zero;
(iv) to distributions of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class A1 Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class A2 Certificates, until the Class Balance
thereof is reduced to zero;
(v) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class B Certificates;
(vi) to distribution of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class A2 Certificates in reduction of the
Class Balance thereof is reduced to zero) for such
Distribution Date on the Class B Certificates, until the
Class Balance thereof is reduced to zero;
(vii) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class C Certificates;
(viii) to distributions of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class B Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class C Certificates until the Class Balance
thereof is reduced to zero;
(ix) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class D Certificates;
(x) to distributions of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class C Certificates in reduction of the
Class Balance thereof is reduced to zero) for such
Distribution Date on the Class D Certificates, until the
Class Balance thereof is reduced to zero;
(xi) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class E Certificates;
(xii) to distributions of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class D Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class E Certificates, until the Class Balance
thereof is reduced to zero;
(xiii) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class F Certificates;
(xiv) to distributions of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class E Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class F Certificates, until the Class balance
thereof is reduced to zero;
(xv) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class G Certificates;
(xvi) to distributions of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class F Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class G Certificates, until the Class Balance
thereof is reduced to zero;
(xvii) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class H Certificates;
(xviii) to distributions of the Principal Distribution Amount (or
the portion thereof remaining after the distribution
thereof to the Class G Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class H Certificates, until the Class Balance
thereof is reduced to zero;
(xix) to distributions of the Interest Distribution Amount for
such Distribution Date on the Class 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 K 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 and
Class A2 Certificates pro rata based on (and limited to the extent of) their
respective Class Balances.
(b) All distributions made with respect to each Class on each
Distribution Date shall be computed by the Bond Administrator based upon
information furnished to the Bond Administrator 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 Bond Administrator
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 Bond
Administrator expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Bond Administrator
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 Bond Administrator 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
Bond Administrator 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 Bond Administrator, 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 Bond Administrator 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 Bond Administrator shall pay over or continue to hold
any amounts so held by the Bond Administrator in accordance with applicable
escheatment law.
Section 7.03 Statements to Certificateholders.
(a) On each Distribution Date, the Bond Administrator shall make
available to each Holder and to each Certificate Owner which shall have
certified to the Bond Administrator 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 Bond Administrator), a statement as to the distributions made on
such Distribution Date based solely upon information included in the reports
furnished to the Bond Administrator by the Master Servicer for such Distribution
Date in accordance with the provisions of this Agreement.
In addition, on each Distribution Date, the Bond Administrator 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 Bond Administrator shall forward to the
Trustee, the Depositor, each Underwriter, each 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 Bond Administrator shall also provide such reports to the Master
Servicer in an electronic format reasonably acceptable to the Master Servicer
and the Bond Administrator.
Subject to Section 6.03(g), upon request of any Certificateholder (or
any Certificate Owner, if applicable, which shall have provided the Bond
Administrator with evidence satisfactory to the Special Servicer and the Bond
Administrator of its interest in a certificate pursuant to Section 11.04) or
Rating Agency, the Bond Administrator shall mail, at the expense of the
requesting party, to the address specified in such request, a copy of the most
current Asset Strategy Report received by the Bond Administrator for any
Specially Serviced Mortgage Loan or REO Property, unless prohibited by
applicable law or the related Mortgage Loan documents. In addition, upon receipt
of a written request of any Certificateholder (or any Certificate Owner, if
applicable, which shall have provided the Bond Administrator with evidence
satisfactory to the Bond Administrator of its interest in a certificate pursuant
to Section 11.04) for a copy of any other report or statement, the Bond
Administrator 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 Bond Administrator 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 Bond Administrator 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 Bond
Administrator 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 Bond Administrator 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 Bond Administrator 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 Bond Administrator, promptly provide the Bond Administrator with reasonably
current Rule 144A Information to the extent reasonably available. The Bond
Administrator may place its disclaimer on any such Rule 144A Information to the
extent it is not the source of such information. Neither the Trustee nor the
Bond Administrator shall have 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 Bond Administrator by another to the extent the
information so furnished accurately sets forth the information prepared or
delivered.
(c) Each of the Bond Administrator, 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 and
not previously provided to the Directing Certificateholder. After the
Certificates have been sold by the Underwriters, the Master Servicer may
maintain an Internet website at "www.orecm.com", which may contain, subject to
Section 6.03(g), the information and reports required for the Master Servicer to
produce herein. Access by Certificateholders, the Directing Certificateholder,
the Depositor and the Rating Agencies shall be coordinated with the Bond
Administrator, using a password and access name.
(d) The Bond Administrator 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 Bond Administrator shall be entitled to charge such Person (other than the
Rating Agencies, in which case such expenses shall be an expense of the Trust
Fund) a nominal fee to cover the cost of such mailing.
(e) The Bond Administrator 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 Bond Administrator shall be entitled to
indicate the source of all information furnished by it and the Bond
Administrator 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 Bond Administrator 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 Bond Administrator 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 Bond Administrator deems the same to be necessary or
appropriate). With the written approval of the Depositor, the Bond Administrator
may make certain information regarding the Mortgage Loans available to
Certificateholders in electronic format through the Bond Administrator's dial-up
bulletin board service by dialing telephone number (714) 282-3990 and also via
the Internet site of the Bond Administrator at "http://www.lnbabs.com" or by
such other means as the Bond Administrator may have in place from time to time.
In furtherance of the foregoing, within twenty days following the Closing Date,
the Depositor shall furnish to the Master Servicer, the Special Servicer and the
Bond Administrator in electronic format copies of this Pooling Agreement, which,
with the written approval of the Depositor, the Bond Administrator may also make
available through its Internet website. Nothing herein shall be construed to
impose upon the Trustee or the Bond Administrator any obligation or duty to
furnish or distribute any Additional Information to any Person in any instance,
and the Bond Administrator shall neither have any liability for furnishing nor
for refraining from furnishing Additional Information in any instance. The Bond
Administrator 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.
The Bond Administrator shall provide access to the information
available on the monthly statement to Certificateholders prepared pursuant to
the first paragraph of Section 7.03(a) through the Bond Administrator's ASAP
System, Internet website or such other mechanism that the Bond Administrator may
have in place from time to time. The Bond Administrator's ASAP System may be
accessed by calling (714) 282-5518 and requesting statement number 480.
Section 7.04 Distribution of Reports to the Bond Administrator and the
Depositor; Advances by the Master Servicer.
On or prior to 11:00 a.m., New York City time, on the second Business
Day prior to each Distribution Date, the Master Servicer shall furnish a
statement, in written or electronic format (the Loan Periodic Update File of the
CMSA IRP) to the Bond Administrator and the Trustee pursuant to Section 4.10
setting forth (i) the amounts available for deposit into the Certificate Account
and (ii) the maximum amount required to be advanced by the Master Servicer 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 Bond
Administrator 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, the Trustee shall commence an evaluation of
whether, in its good faith business judgment, 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 the
Master Servicer and may conclusively rely upon the determination of the Master
Servicer that an Advance if made would constitute a Nonrecoverable Advance. 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, it shall give notice to the
Trustee and the Bond Administrator of its inability to advance (such notice may
be given by telecopy), not later than 3:00 P.M., New York City 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 10:00 A.M. on the related Distribution Date
(notice of which the Bond Administrator shall promptly, and in any event no
later than 10:30 a.m. New York City time, deliver to the Trustee), 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, New York City time, on
such Distribution Date.
The Bond Administrator 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.
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 Certificate Registrar 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 Certificate
Registrar shall bind the Certificate Registrar, 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 Certificate Registrar 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 Book-Entry Certificates evidencing the Class G, Class H, Class J,
Class K and Class NR Certificates offered and sold other than as described in
the preceding paragraph (each, a "Restricted Global Certificate") shall be
registered in the name of the Depository for credit to the respective accounts
of Certificate Owners which have certified they are "qualified institutional
buyers" under Rule 144A. The aggregate principal amount of any Restricted Global
Certificate may from time to time be increased or decreased by adjustments made
on the records of the Depository, which adjustments shall be conclusive as to
the aggregate principal amount of any Restricted Global Certificate.
The Book-Entry Certificates evidencing the Class G, Class H, Class J,
Class K and Class NR Certificates offered and sold outside the United States in
reliance on Regulation S (each, a "Regulation S Global Certificate") shall be
registered in the name of the Depository for credit, initially and during the
Restricted Period, to the respective accounts of Certificate Owners of the
Regulation S Global Certificates (or to other accounts that they direct) at
Clearstream, Luxembourg or Euroclear. The aggregate principal amount of any
Regulation S Global Certificate may be increased or decreased by adjustments
made on the records of the Depository for the Regulation S Global Certificate,
which adjustments shall be conclusive as to the aggregate principal amount of
any Regulation S Global Certificate.
Transfers of any Global Certificate shall be limited to transfers of a
Restricted Global Certificate or Regulation S Global Certificate in whole, but
not in part, to the Depository and its successors. Beneficial interests in the
Restricted Global Certificate and any Regulation S Global Certificate may be
transferred in accordance with the Depository's customary procedures and the
provisions of Section 8.02.
The Trustee, the Certificate Registrar, the Bond Administrator, 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 Certificate Registrar 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 Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Certificate Registrar 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 Certificate Registrar 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)(iii). Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration of transfer, the Certificate Registrar shall
issue the Definitive Certificates. Neither the Depositor, the Master Servicer
nor the Certificate Registrar 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 Certificate Registrar, and the Certificate Registrar 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 Certificate Registrar 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 Bond Administrator 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 Bond
Administrator and 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 and (iii) in all other cases, (A) (I) except where the
Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of
Counsel, (II) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit C hereto and (III) a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as Exhibit E hereto or (B) if 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,
Bond Administrator or the Certificate Registrar in their respective capacities
as such). None of the Depositor, the Trustee, Bond Administrator 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, Bond Administrator, 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) Except as provided in Section 8.02(d), 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 or other entities 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 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 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, the Certificate
Registrar, the Bond Administrator 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) Notwithstanding Section 8.02(c), transfers of the Class B, Class C,
Class D, Class E and Class F Certificates shall be registered by the Certificate
Registrar if the Certificate Registrar receives: (i) a representation from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Certificate Registrar, to the effect that such transferee is
not (A) a Plan or (B) a Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a plan, (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 is eligible for, and satisfies all of
the requirements for relief under, Sections I and III of PTCE 95-60; or (iii) an
Opinion of Counsel satisfactory to the Certificate Registrar 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 or the
Certificate Registrar 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 Certificate Registrar by the transferee's acceptance of a Class B, Class
C, Class D, Class E or Class F Certificate.
(e) No transfer of a Class A1, Class A2 or Class X Certificate or any
interest therein shall be made to (A) any Plan or (B) any Person who is directly
or indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan unless such
transferee qualifies as an accredited investor as defined in Rule 501(a)(1) of
Regulation D under the Securities Act and either (1) at the time of such
transfer, the Certificates are rated in one of the top three rating categories
by at least one rating agency, or (2) the purchaser is an insurance company
general account that is eligible for, and satisfies all of the requirements of,
Sections I and III of Prohibited Transaction Class Exemption 95-60. Each Person
who acquires a Class A1, Class A2 or Class X Certificate shall be deemed to have
certified that the foregoing conditions are satisfied.
(f) 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
Certificate Registrar 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.
(g) 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.
(h) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the office of the Certificate
Registrar, the Certificate Registrar shall execute, 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.
(i) 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 Certificate Registrar shall execute,
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(j) 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.
(k) 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.
(l) 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 Bond Administrator 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 Bond Administrator 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 Bond Administrator or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Bond
Administrator 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 Bond
Administrator 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
Bond Administrator 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 Bond Administrator, 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 Bond Administrator, the
Certificate Registrar nor any agent of any of them shall be affected by notice
to the contrary.
ARTICLE IX
THE DEPOSITOR
Section 9.01 Liability of the Depositor.
The Depositor shall be liable in accordance herewith only to the extent
of the obligations specifically imposed upon and undertaken by the Depositor
herein.
Section 9.02 Merger, Consolidation or Conversion of the Depositor.
Subject to the following paragraph, the Depositor will keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The Depositor may be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, shall
be a party, or any Person succeeding to the business of the Depositor, shall be
the successor of the Depositor hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 9.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or
agents shall be under any liability to the Trust Fund or the Certificateholders
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Depositor or any such Person against
any breach of warranties or representations made herein, or against any
liability which would otherwise be imposed by reason of misfeasance, bad faith
or negligence in the performance of duties. The Depositor and any director,
officer, employee or agent thereof may rely in good faith on any document of any
kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. Except for any action described in the
proviso of the first sentence above, the Depositor shall not be under any
obligation to appear in, prosecute or defend any legal action unless such action
is related to its duties under this Agreement.
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 Bond Administrator 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 remit to
the Master Servicer, as required hereunder, any amount
required to be 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, (x) such
Servicer shall fail to remit to the Master Servicer or
deposit in the Collection Account, Escrow Account or REO
Account, as applicable 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) the Master Servicer
shall fail to make any Advance required to be made by the
Master 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, the Bond Administrator or any other Servicer any
report required to be so delivered 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, the Bond Administrator, or, in
the case of the Special Servicer, the Master Servicer or
to such Servicer (with a copy to the Depositor, the
Trustee, the Bond Administrator, 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, the Bond Administrator or, in the case of the
Special Servicer, the Master Servicer, or to such
Servicer (with a copy to the Depositor, the Trustee, the
Bond Administrator 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, undismissed 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 Master
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) Fitch has given written confirmation that with respect to
any Servicer that maintaining the Servicer in such
capacity hereunder will cause a downgrade, qualification
or withdrawal of the ratings then assigned to the
Certificates; or
(xii) Moody's places the rating of any class of Certificates on
a "watch" status in contemplation of a ratings downgrade
or withdrawal, citing servicing concerns as the sole or a
contributory factor in such rating action.
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 it may have made hereunder. No
such waiver shall extend to any subsequent or other Event of Default or impair
any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 10.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
Voting Rights with respect to the matters described above.
Section 10.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event
of Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 10.01, shall have the right, in its own name and as trustee
of an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
ARTICLE XI
CONCERNING THE TRUSTEE AND THE BOND ADMINISTRATOR
Section 11.01 Duties of the Trustee and the Bond Administrator.
(a) Each of the Trustee and the Bond Administrator, 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, each of the Trustee and the Bond Administrator
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 or the Bond Administrator contained in this
Agreement shall not be construed as a duty.
(b) The Bond Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Bond Administrator 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 Bond Administrator
shall take such action as it deems appropriate to have the instrument corrected.
Neither the Trustee nor the Bond Administrator shall 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 Bond Administrator in good
faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Bond Administrator 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 and
the Bond Administrator shall be determined solely by the
express provisions of this Agreement, neither the Trustee
nor the Bond Administrator shall 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 or the Bond Administrator
and, in the absence of bad faith on the part of the
Trustee or the Bond Administrator, the Trustee and the
Bond Administrator 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 or the Bond Administrator and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Bond Administrator shall be
liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the
Trustee or the Bond Administrator, unless it shall be
proved that the Trustee or the Bond Administrator was
negligent in ascertaining the pertinent facts; and
(iii) Neither the Trustee nor the Bond Administrator shall be
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 the Bond
Administrator, or exercising any trust or power conferred
upon the Trustee or the Bond Administrator, under this
Agreement.
(d) Within 30 days after the Delivery Date, the Depositor shall deliver
to the Master Servicer and within 90 days after the Delivery Date, the Master
Servicer, 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 Master Servicer or Special Servicer, as
applicable, may 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 Master Servicer, or Special Servicer, as
applicable, and the Trustee are 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 the Bond Administrator and to notify the Trustee and the Bond
Administrator 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 and the Bond
Administrator 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 Bond
Administrator 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 Bond
Administrator 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, the Bond Administrator 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 Bond
Administrator 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 Bond Administrator 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 Bond Administrator
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 Bond Administrator shall
notify the Special Servicer.
(f) If at any time a Book-Entry Certificate belongs to a Monitoring
Class, the Bond Administrator shall notify the related Certificateholders
(through the Depository, unless the Bond Administrator 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, the
Bond Administrator 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.
Each of the Trustee and the Bond Administrator 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 Bond Administrator
shall make such determination based on a certification of such Person, in form
acceptable to the Bond Administrator, which shall specify, in reasonable detail
satisfactory to the Bond Administrator, 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 Bond
Administrator shall make such determination at the request of such Person or any
Servicer. The Bond Administrator 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 or the Bond
Administrator.
Except as otherwise provided in Section 11.01:
(a) The Trustee or the Bond Administrator 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 and the Bond Administrator 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) Neither the Trustee nor the Bond Administrator shall be under any
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 or Bond Administrator, as applicable, reasonable security
or indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; neither the Trustee nor the Bond Administrator shall 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 or the Bond Administrator 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) Neither the Trustee nor the Bond Administrator shall 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, neither
the Trustee nor the Bond Administrator shall 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 or Bond
Administrator 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 or Bond
Administrator, not reasonably assured to the Trustee or Bond Administrator by
the security afforded to it by the terms of this Agreement, the Trustee or Bond
Administrator 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 or Bond Administrator, shall be repaid by the Master Servicer upon
demand;
(f) The Trustee and the Bond Administrator 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 and the Bond
Administrator shall each remain liable for the performance of all of its duties
hereunder;
(g) Neither the Trustee nor the Bond Administrator shall be required to
obtain a deficiency judgment against any Mortgagor;
(h) For all purposes under this Agreement, neither the Trustee nor the
Bond Administrator shall be deemed to have notice of any Event of Default
hereunder unless a Responsible Officer of the Trustee or the Bond Administrator
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 or
the Bond Administrator, and such notice references the Holders of the
Certificates and this Agreement;
(i) Neither the Trustee nor the Bond Administrator shall be responsible
for any act or omission of the Certificate Registrar (unless the Trustee, an
Affiliate of the Trustee or the Bond Administrator, as applicable, is acting as
Certificate Registrar), the Master Servicer, the Special Servicer or the
Depositor;
(j) Other than as expressly provided herein, neither the Trustee nor
the Bond Administrator shall 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 Neither the Trustee Nor Bond Administrator 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
neither the Trustee nor the Bond Administrator assumes any responsibility for
their correctness. Neither the Trustee nor the Bond Administrator makes any
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. Neither the Trustee nor the
Bond Administrator shall 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. Neither the Trustee nor the Bond Administrator shall 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 or Bond
Administrator in good faith, pursuant to this Agreement.
Section 11.07 Trustee or the Bond Administrator May Own Certificates.
The Trustee or the Bond Administrator, 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 or Bond Administrator, respectively.
Section 11.08 Fees and Expenses of Trustee and Bond Administrator;
Indemnification of Trustee.
(a) The Bond Administrator shall be entitled to pay itself and the
Trustee 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 or a bond administrator of an express trust) for all
services rendered by it and the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties of
the Trustee or the Bond Administrator hereunder on each Distribution Date in an
aggregate amount equal to 0.003% per annum, calculated on the same basis as
interest on the Certificates (the "Trustee Fee Rate") from which an amount equal
to the Bond Administrator Fee, payable at the Bond Administration Fee Rate shall
be paid to the Bond Administrator and the remainder shall be paid to the
Trustee.
(b) The Trustee, the Bond Administrator and any director, officer,
employee or agent of the Trustee or the Bond Administrator 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 or the Bond Administrator 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 or the Bond
Administrator in the performance of duties hereunder, or as may arise from a
breach of any representation or warranty of the Trustee or the Bond
Administrator set forth herein or from any failure of the Trustee or the Bond
Administrator to perform its obligations set forth in Section 11.15 or 11.18,
respectively, or if the Trustee becomes Master Servicer, any circumstance under
which the Master Servicer is not entitled to indemnification pursuant to Section
3.08(b)); provided, however, that with respect to any third party claim:
(i) the Trustee or the Bond Administrator, shall have given
the Bond Administrator, or the Trustee, as applicable,
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 or the Bond Administrator shall have
knowledge thereof;
(ii) while maintaining control over its own defense, the
Trustee or the Bond Administrator shall cooperate and
consult fully with the Bond Administrator or the Trustee,
as applicable, 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 or the Bond
Administrator entered into without the prior consent of
the Bond Administrator or the Trustee, as applicable, 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 and the termination or resignation of the Trustee or the Bond
Administrator.
Section 11.09 Eligibility Requirements for Trustee and the Bond
Administrator.
Each of the Trustee and the Bond Administrator 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 each
of the Trustee and the Bond Administrator (or its corporate parent) shall at all
times be rated in a rating category by Moody's and Fitch 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. In case at any time the Trustee or the Bond
Administrator shall cease to be eligible in accordance with the provisions of
this Section, the Trustee or the Bond Administrator, as applicable, shall resign
immediately in the manner and with the effect specified in Section 11.10. The
corporation or association serving as Trustee or Bond Administrator 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 Trustee or Bond Administrator.
(a) The Trustee or the Bond Administrator may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Trustee or the Bond Administrator, as applicable, and the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders. Upon
receiving such notice of resignation from the Trustee, the Master Servicer shall
promptly appoint a successor trustee. Upon receiving such notice of resignation
from the Bond Administrator, the Trustee shall appoint a successor bond
administrator. In each case, the appointment of such successor must be
acceptable to the Depositor and by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee or the resigning Bond Administrator and to the successor bond
administrator, as applicable. A copy of such instrument shall be delivered to
the Trustee or the Bond Administrator, as applicable, and the
Certificateholders, the Depositor and the Special Servicer by the Master
Servicer. If no successor trustee or successor bond administrator, as
applicable, shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee or
resigning Bond Administrator, as applicable, may petition any court of competent
jurisdiction for the appointment of a successor trustee or successor bond
administrator, as applicable.
(b) If at any time the Trustee or the Bond Administrator 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 or the Bond Administrator shall become incapable
of acting, or shall be adjudged bankrupt or insolvent, or a receiver of either
the Trustee or the Bond Administrator or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or the Bond
Administrator or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Master Servicer may remove the Trustee or
the Bond Administrator, as applicable, and appoint a successor trustee or
successor bond administrator, as applicable, acceptable to the Depositor by
written instrument, in duplicate, which instrument shall be delivered to the
Trustee or Bond Administrator so removed and to the successor trustee or
successor bond administrator, as applicable. A copy of such instrument shall be
delivered to the Trustee or the Bond Administrator, as applicable, and 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 or Bond Administrator and appoint a
successor trustee or bond administrator 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 or the Bond Administrator, as applicable, 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. If the termination pursuant to this
Section 11.10(c) is without cause, the Certificateholders who voted to terminate
the Trustee or Bond Administrator shall pay the expenses associated with such
termination.
(d) Any resignation or removal of the Trustee or Bond Administrator and
appointment of a successor trustee or bond administrator, as applicable,
pursuant to any of the provisions of this Section shall not become effective
until acceptance of appointment by the successor trustee or bond administrator,
as applicable as provided in Section 11.11.
Section 11.11 Successor Trustee or Bond Administrator.
(a) Any successor trustee or bond administrator appointed as provided
in Section 11.10 shall execute, acknowledge and deliver to the Master Servicer
and to its predecessor trustee or its predecessor bond administrator, as
applicable, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor trustee or predecessor bond
administrator shall become effective and such successor trustee or successor
bond administrator, as applicable, 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 or bond administrator, as applicable, herein. The predecessor trustee or
the predecessor bond administrator, as applicable, shall deliver to the
successor trustee or successor bond administrator, as applicable, 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 or successor bond administrator, as applicable,
hereunder), and the Master Servicer and the predecessor trustee or the
predecessor bond administrator, as applicable, 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 or successor bond
administrator, as applicable, all such rights, powers, duties and obligations,
and to enable the successor trustee or successor bond administrator, as
applicable, to perform its obligations hereunder.
(b) No successor trustee and no successor bond administrator shall
accept appointment as provided in this Section unless at the time of such
acceptance such successor trustee or such successor bond administrator, as
applicable, shall be eligible under the provisions of Section 11.09.
(c) Upon acceptance of appointment by a successor trustee or a
successor bond administrator as provided in this Section, the successor trustee
or successor bond administrator, as applicable, shall mail notice of the
succession of such trustee or such bond administrator, as applicable, hereunder
to all Holders of Certificates at their addresses as shown in the Certificate
Register.
(d) If at any time the Bond Administrator has resigned or been removed,
then the Trustee shall succeed to and assume the Bond Administrator's
responsibilities, rights, duties and obligations under this Agreement until the
successor bond administrator is appointed pursuant to Section 11.10 and has
accepted such appointment. In connection with such appointment and assumption,
the Trustee shall be entitled to all the same compensation as to which the Bond
Administrator may be entitled hereunder.
Section 11.12 Merger or Consolidation of Trustee or Bond Administrator.
Any entity into which the Trustee or Bond Administrator 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 or Bond
Administrator shall be a party, or any entity succeeding to the corporate trust
business of the Trustee or the Bond Administrator, shall be the successor of the
Trustee or Bond Administrator, as applicable, 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; provided, however, that the Trustee shall not be responsible
for any delays or failures in the performance of the Custodian due to acts
beyond the Custodian's control. Such acts shall include but not be limited to
acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics,
nationalization, expropriation, currency restrictions, governmental regulation
superimposed after the fact, fire, communication line failures, earthquakes or
other disasters.
(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 Request for Release and Receipt of
Documents from any Servicer, the Custodian shall be authorized 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 the Special 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 the Special Servicer in connection with such
instruments of satisfaction shall be reimbursed to the Special Servicer by the
Master Servicer pursuant to the terms of this Agreement. The Special 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 Bond Administrator,
the Master Servicer and the Depositor, as of the Delivery Date, that:
(i) The Trustee is a national banking association duly
organized, validly existing and in good standing under
the laws of the United States of America.
(ii) The execution and delivery of this Agreement by the
Trustee, and the performance and compliance with the
terms of this Agreement by the Trustee, will not violate
the Trustee's charter or bylaws or constitute a default
(or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any
of its assets; no license, consent, approval,
authorization or order of any court or governmental
agency is required for the execution, delivery and
performance by the Trustee of this Agreement, except as
have been previously obtained.
(iii) The Trustee has the full power and authority to enter
into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed
and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Bond Administrator, 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 covenants that by December 31, 1999, any
custom-made software or hardware designed or purchased or
licensed by it and used by it in the course of the
operation or management of, or the compiling, reporting
or generation of, data required by this Agreement will be
capable of identifying correctly or performing
calculations or other processing accurately with respect
to dates after December 31, 1999.
Section 11.16 SEC Filings.
Based upon information furnished to it by the Master Servicer and the
Depositor, the Bond Administrator 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, 2001, the Bond Administrator 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 Bond Administrator shall have no responsibility to file any
items other than those specified in this Section 11.16.
Section 11.17 [RESERVED]
Section 11.18 Representations and Warranties of the Bond Administrator.
The Bond Administrator hereby represents and warrants to the Trustee,
the Master Servicer, the Special Servicer and the Depositor, as of the Delivery
Date, that:
(i) The Bond Administrator is a national banking association
duly organized, validly existing and in good standing
under the laws of the United States of America.
(ii) The execution and delivery of this Agreement by the Bond
Administrator, and the performance and compliance with
the terms of this Agreement by the Bond Administrator,
will not violate the Bond Administrator'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 Bond
Administrator of this Agreement, except as have been
previously obtained.
(iii) The Bond Administrator 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 Trustee, the Master Servicer, the Special
Servicer and the Depositor, constitutes a valid, legal
and binding obligation of the Bond Administrator,
enforceable against the Bond Administrator 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 Bond Administrator 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 Bond Administrator's good faith and
reasonable judgment, is likely to affect materially and
adversely either the ability of the Bond Administrator to
perform its obligations under this Agreement or the
financial condition of the Bond Administrator.
(vi) No litigation is pending or, to the best of the Bond
Administrator's knowledge, threatened against the Bond
Administrator which would prohibit the Bond Administrator
from entering into this Agreement or, in the Bond
Administrator's good faith reasonable judgment, is likely
to materially and adversely affect either the ability of
the Bond Administrator to perform its obligations under
this Agreement or the financial condition of the Bond
Administrator.
(vii) The Bond Administrator has used reasonable commercial
efforts to cure any deficiencies with regards to the
manipulation or calculation of dates beyond December 31,
1999 in the internally maintained computer software
systems used by the Bond Administrator in the conduct of
its trust business which would materially and adversely
affect its ability to perform its obligations under this
agreement. The Bond Administrator further represents that
it will use reasonable commercial efforts to obtain
reasonable assurance from each third party vendor of
licensed computer software systems used by the Bond
Administrator in the conduct of its trust business that
such vendors shall use reasonable commercial efforts to
cure any deficiencies with regards to the manipulation or
calculation of dates beyond December 31, 1999 in such
systems which would materially and adversely affect the
ability of the Bond Administrator to perform its
obligations under this agreement.
Section 11.19 Indemnity.
(a) The Bond Administrator shall indemnify the Depositor, the Trustee,
each of the Servicers (and each of their respective directors, members,
managers, officers, employees and agents) 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 its
representations and warranties contained in this Agreement, its failure to
perform its duties in accordance with the terms of this Agreement or arising out
of its willful misfeasance, bad faith or negligence.
(b) The Bond Administrator 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 this
Agreement, other than any cost, expense, loss, damage, claim or liability
incurred by reason of its willful misfeasance, bad faith or negligence in the
performance of its duties hereunder or by reason of its negligent disregard of
obligations or duties hereunder.
(c) As soon as reasonably practicable after receipt by the Depositor,
either 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 the Bond Administrator and the Trustee, if
indemnification is sought from the Trust Fund (each of the Bond Administrator
and the Trust Fund, as applicable, 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.
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, the Bond Administrator
and the Trustee (other than the obligations of the Bond Administrator 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 Bond Administrator 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, such Person 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 cause the Custodian to 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 Bond Administrator shall
distribute to each Certificateholder so presenting and surrendering its
Certificates (i) the amount otherwise distributable on such Distribution Date in
accordance with Section 7.02 in respect of the Certificates so presented and
surrendered, if not in connection with the Master Servicer's purchase of all of
the Mortgage Loans, or (ii) such Certificateholder's Percentage Interest of that
portion of the Available Distribution Amount for such Distribution Date
allocable to payments on the Class of Certificates so presented and surrendered
as described below, if in connection with the Master Servicer's purchase of all
of the Mortgage Loans. If the Trust Fund is to terminate in connection with the
Master Servicer's purchase of all of the Mortgage Loans, the Available
Distribution Amount for the final Distribution Date shall be allocated in the
order set forth in Section 7.02.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment.
(a) This Agreement may be amended from time to time by the Depositor,
the Master Servicer, the Special Servicer, the Trustee, and the Bond
Administrator, 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 and the Bond Administrator, 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 and the Bond
Administrator, 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, the Trustee and the Bond
Administrator 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, none of
the Trustee, the Bond Administrator and the Master Servicer shall consent to any
amendment to this Agreement unless the Trustee, the Bond Administrator 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, the Bond Administrator 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 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 Underwriters 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 or the Special Servicer at the expense of the
Trust Fund on direction by the Trustee, but only upon direction accompanied by
an Opinion of Counsel (which opinion shall be an expense of the Trust Fund) 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 ORIX
Real Estate Capital Markets, LLC as Master Servicer and Special Servicer, 1717
Main Street, 14th Floor, Dallas, Texas 75201, Attention: Edgar L. Smith, II,
telephone number 214-237-2005; telecopy number 214-237-2034, with a copy to ORIX
Real Estate Mortgage Capital Markets, LLC, 1717 Main Street, 12th Floor, Dallas,
Texas 75201, Attention: Paul Smyth, telephone 214-237-2010; telecopy number
214-237-2040; (iii) in the case of the Trustee, Norwest Bank Minnesota, National
Association, 11000 Broken Land Parkway, Columbia, Maryland 21044-3562,
Attention: Corporate Trust Service (CMBS)--J.P. Morgan Commercial Mortgage
Finance Corp., Series 2000-C9, telephone number: (301) 815-6600, telecopy
number: (410) 884-2360; (iv) in the case of the Bond Administrator, LaSalle Bank
National Association, 135 South LaSalle Street, Suite 1625, Chicago, Illinois
60603, Attention: Asset-Backed Securities Trust Services Group -- J.P. Morgan
Commercial Mortgage Finance Corp., Series 2000-C9, telephone number: (312)
904-2000, telecopy number (312) 904-2084; and (v) in the case of the Rating
Agencies, (A) Fitch IBCA, Inc., One State Street Plaza, New York, New York
10004, Attention: Commercial Mortgage-Backed Securities Group, telephone number:
(212) 908-0537, telecopy number: (212) 635-0295; and (B) 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 Bond Administrator 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 Bond Administrator in
preparing and filing such continuation statements. This Section 13.07 shall
constitute notice to the Bond Administrator 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, the Bond
Administrator 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, the Bond Administrator or the
Trustee;
(iv) the repurchase of Mortgage Loans pursuant to Section
2.04(a); and
(v) any other information the Rating Agencies may reasonably
request consistent with the Trustee's duties hereunder.
(b) The Bond Administrator 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) the final payment to any Class of Certificateholders;
(ii) any change in the location of the Certificate Account;
and
(iii) CMSA IRP.
(c) 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.
(d) 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) if requested, 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 and Mortgaged Property
level reporting, including Comparative Financial Status
Report, Delinquent Loan Status Report, REO Status Report,
Historical Loan Modification Report, Historical
Liquidation, and Servicer Watch List in the form
published by the Commercial Mortgage Securities
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.
Section 13.11 Certificateholders' List.
Upon written request of the Directing Certificateholder, the Bond
Administrator shall provide a list of each Certificateholder and, to the extent
known to the Bond Administrator and solely based on the certification of
Certificate Owners, each Certificate Owner.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
J.P. MORGAN COMMERCIAL MORTGAGE FINANCE
CORP.,
Depositor
By: /s/ Clive Bull
--------------------------------------------
Name: Clive Bull
------------------------------------
Title: Vice President
------------------------------------
ORIX REAL ESTATE CAPITAL MARKETS, LLC,
Master Servicer and Special Servicer
By: /s/ Edgar L. Smith II
--------------------------------------------
Name: Edgar L. Smith II
------------------------------------
Title: Chief Operating Officer
------------------------------------
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
By: /s/ Leslie Gaskill
--------------------------------------------
Name: Leslie Gaskill
------------------------------------
Title: Vice President
------------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
Bond Administrator
By: /s/ Russell Goldenberg
--------------------------------------------
Name: Russell Goldenberg
------------------------------------
Title: Group Senior Vice President
------------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of January, 2000 before me, a notary public in and for
said State, personally appeared Clive Bull 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/ Makaylia Roberts
------------------------------------
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 25th day of January, 2000 before me, a notary public in and for
said State, personally appeared Edgar L. Smith II known to me to be a Chief
Operating Officer of ORIX Real Estate Capital Markets, LLC, 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/ Jerry Newman
------------------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of January, 2000, before me, a notary public in and for
said State, personally appeared Leslie Gaskill known to me to be a Vice
President of Norwest Bank Minnesota, National Association, the association that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said association, and acknowledged to me that such
association 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/ Jack A Aini
------------------------------------
Notary Public
[Notarial Seal]
STATE OF Illinois )
) ss.:
COUNTY OF Cook )
On the 25th day of January, 2000, before me, Vanessa Bethea, a notary
public in and for said State, personally appeared Russell Goldenberg known to me
to be a Group Senior Vice President of LaSalle Bank National Association, one of
the corporations that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Vanessa Bethea
------------------------------------
Notary Public
[Notarial Seal]
EXHIBIT A
FORM OF CERTIFICATE
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York Corporation ("DTC"), to the Bond
Administrator 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 __________, 200_.
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.]
EACH HOLDER OF A CERTIFICATE IS 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.
[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), (ii), (iii) or (iv) 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 IN SECTION 8.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.]
[For Class A1, Class A2 and Class X Certificates only: No transfer of a
[Class A1] [Class A2] [Class X] 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 or other entities 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 Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, unless such transferee
qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D
under the Securities Act and either (1) at the time of such transfer, the
Certificates are rated in one of the top three rating categories by at least one
rating agency, or (2) the purchaser is an insurance company general account that
is eligible for, and satisfies all of the requirements of, Sections I and III of
Prohibited Transaction Class Exemption 95-60. Each Person who acquires a [Class
A1] [Class A2] [Class X] Certificate shall be deemed to have certified that the
foregoing conditions are satisfied.
[For Class B, Class C, Class D, Class E and Class F Certificates only:
No transfer of a [Class B] [Class C] [Class D] [Class E] [Class F] Certificate
or any interest therein shall be made to (A) any employee benefit plan or other
retirement plan or arrangement (including individual retirement accounts and
annuities and Keogh plans) that is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or to Section 4975 of the Code, or
of any collective investment fund or separate account or other entity in which
such plans, accounts or arrangements are invested (each, a "Plan") or (B) any
Person who is directly or indirectly purchasing the [Class B] [Class C] [Class
D] [Class E] [Class F] Certificate or interest therein on behalf of, as named
fiduciary of , as trustee of, or with assets of a Plan, unless the Bond
Administrator receives: (i) a representation from the prospective transferee of
such [Class B] [Class C] [Class D] [Class E] [Class F] Certificate, acceptable
to and in form and substance satisfactory to the Trustee and the Bond
Administrator, to the effect that such prospective 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 which is purchasing such [Class B] [Class
C] [Class D] [Class E] [Class F] Certificate with funds contained in 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 [Class B] [Class
C] [Class D] [Class E] [Class F] Certificate by such prospective transferee is
eligible for and meets all of the requirements of relief under Sections I and
III of PTCE 95-60; or (iii) an opinion of counsel satisfactory to the Trustee
and the Bond Administrator that the purchase and holding of such [Class B]
[Class C] [Class D] [Class E] [Class F] 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
or the Bond Administrator to any obligation in addition to those undertaken in
the Agreement. Such representation as described above in (i) or (ii) shall be
deemed to have been made to the Bond Administrator by the prospective
transferee's acceptance of this [Class B] [Class C] [Class D] [Class E] [Class
F] Certificate. In the event that such representation is violated or any attempt
to transfer to a Plan or person acting on behalf of a Plan or using a Plan's
assets is attempted without such opinion of counsel, such attempted transfer or
acquisition shall be void and of no effect.]
[For Class G, Class H, Class J, Class K, Class NR, Class R-I, Class
R-II and Class R-III Certificates only: No [Class G] [Class H] [Class J] [Class
K] [Class NR] [Class R-I] [Class R-II] and [Class R-III] Certificate 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 or other entities 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 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 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,
the Certificate Registrar, the Bond Administrator 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] [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
name fiduciary of, as trustee of, or with assets of a Plan.
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 2000-C9
<TABLE>
<CAPTION>
[Original Class Balance][Initial Aggregate
Notional Amount]: $[_________]
<S> <C>
Date of Pooling and Servicing Agreement: [Initial [Certificate
January 1, 2000 Balance][Notional Amount] of this Class [ ]
Certificate as of the Delivery Date:
$____________]
Cut-off Date: January 1, 2000
Delivery Date: January [o], 2000 [Percentage Interest: ____%]
First Distribution Date: February [o], 2000 Pass-Through Rate:
[__%][Variable]
Master Servicer: ORIX Real Trustee: Norwest Bank Minnesota,
Estate Capital Markets, LLC National Association
Bond Administrator: LaSalle
Bank National Association
No. [__] [ISIN No.: US617059 _______]
CUSIP No.: 617059 [___]
</TABLE>
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 January 1, 2000 (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), ORIX Real Estate Capital Markets, LLC, 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), Norwest Bank Minnesota, National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) LaSalle Bank National Association, as bond administrator (the "Bond
Administrator", 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; and (c) 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, the Bond Administrator 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, the Bond
Administrator 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 Bond Administrator, 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 Bond
Administrator 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 or other entities in which
such plans, accounts or arrangements are invested, that is subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the
Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing
the Class [ ] Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of the foregoing, 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, the Certificate
Registrar, the Bond Administrator 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 [ ] 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 Bond Administrator 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,
the Bond Administrator and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Bond
Administrator 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 Bond
Administrator, 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 Bond Administrator 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, the Bond Administrator and
the Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Master Servicer, the Special Servicer, the Bond
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Bond Administrator has caused this Certificate
to be duly executed under its official seal.
Dated: _______________
LASALLE BANK, NATIONAL ASSOCIATION,
not individually, but solely in its
capacity as Bond Administrator
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [ ] Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:_________________________________
Authorized Signatory
EXHIBIT B
FORM OF ASSET STRATEGY REPORT
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 2000-C9, 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 January 1, 2000, among J.P. Morgan Commercial Mortgage
Finance Corp., as depositor, ORIX Real Estate Capital Markets, LLC, as master
servicer and special servicer, Norwest Bank Minnesota, National Association, as
trustee and LaSalle Bank National Association, as bond administrator. All
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Certificate with the
full right to transfer the Certificate free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Certificate, any interest in the Certificate or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Certificate, any interest in the
Certificate or any other similar security from, or otherwise approached
or negotiated with respect to the Certificate, any interest in the
Certificate or any other similar security with, any person by means of
any form of general solicitation or general advertising, including but
not limited to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar news
medium or broadcast over television or radio, or any seminar or meeting
whose attendees have been invited by any general solicitation or
advertising, or in any manner which would constitute a distribution
under the Securities Act of 1933, as amended (the "1933 Act") or which
would render the disposition of the Certificate a violation of Section
5 of the 1933 Act or require registration pursuant thereto.
(Transferor)
By: ________________________________
Name: ______________________________
Title: _____________________________
EXHIBIT D-1
FORM OF INVESTMENT LETTER--
QUALIFIED INSTITUTIONAL BUYER
[Date]
[Purchaser]
60 Wall Street
New York, New York 10260
[Bond Administrator Name and Address]
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2000-C9, [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 January [o],
2000, 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 January 1, 2000 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 Bond Administrator 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. Either (a) we are not an employee benefit plan or other
retirement arrangement, (including an individual retirement
account or annuity or a Keogh plan) or collective investment fund
or separate accounts or other entity in which such plan, account
or arrangement is invested, that is subject to 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") (each, a "Plan") or 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; or (b) we have provided the Certificate Registrar with a
certification of facts and an Opinion of Counsel which have
established 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,
the Certificate Registrar 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.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:_________________________________
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
EXHIBIT D-2
FORM OF INVESTMENT LETTER--
REGULATION S
[Date]
[Purchaser]
60 Wall Street
New York, New York 10260
[Bond Administrator Name and Address]
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2000-C9, [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 January
[o], 2000, 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 January 1, 2000 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 Bond Administrator 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. Either (a) we are not an employee benefit plan or other
retirement arrangement, (including an individual retirement
account or annuity or a Keogh plan) or collective investment fund
or separate accounts or other entity in which such plan, account
or arrangement is invested, that is subject to 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") (each, a "Plan") or 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; or (b) we have provided the Certificate Registrar with
a certification of facts and an Opinion of Counsel which have
established 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,
the Certificate Registrar 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.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:_________________________________
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
EXHIBIT E
FORM OF INVESTMENT LETTER--
ACCREDITED INVESTOR
[Date]
[Purchaser]
60 Wall Street
New York, New York 10260
[Bond Administrator Name and Address]
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2000-C9, [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 January
[o], 2000, 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 January 1, 2000 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 Bond Administrator 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. Either (a) we are not an employee benefit plan or other
retirement arrangement, (including an individual retirement
account or annuity or a Keogh plan) or collective investment fund
or separate accounts or other entity in which such plan, account
or arrangement is invested, that is subject to 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") (each, a "Plan") or 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; or (b) we have provided the Certificate Registrar with
a certification of facts and an Opinion of Counsel which have
established 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,
the Certificate Registrar 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.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:_________________________________
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
EXHIBIT F-1
FORM OF TRANSFER AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
1. He is the [Title of Officer] of [Name of Owner] (the record or
beneficial owner (the "Owner") of J.P. Morgan Commercial Mortgage Finance Corp.,
Mortgage Pass-Through Certificate, Series 2000-C9, 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 , 200_.
[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 200_.
____________________________________
NOTARY PUBLIC
COUNTY OF ________________________
STATE OF _________________________
My Commission expires the
_____ day of ______________, 20__.
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
2000-C9, Class [ ]
----------------------------------------------
Dear Sirs:
In connection with our disposition of the above Certificates we certify
that (a) we understand that the Certificates have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are being disposed by us in
a transaction that is exempt from the registration requirements of the Act, (b)
we have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act and (c)
to the extent we are disposing of a Class [ ] Certificate, we have no knowledge
the Transferee is not a Permitted Transferee.
Very truly yours,
____________________________________
(Transferor)
By:_________________________________
Name:
Title:
EXHIBIT G
MORTGAGE LOAN SCHEDULE
EXHIBIT H
HEDGE SCHEDULE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Loan Date Foreign Effective Delivery Amount of Summary of Cash Flows
Number Acquired Currency Date Date Exchange -------------------------------------------------------
Exchange Gain or Loss Cut-Off Date U.S. Cut-Off Date Canadian
Contract Deferred U.S. Dollar Dollar Canadian Dollar Dollar
Number Under Treas. Principal Interest Principal ($) Interest
Reg. Section Balance($) Rate(%) Rate(%)
1.988-5(a)(6)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
62 6/30/98 423236 1/25/00 1/25/00 none 4,259,809.36 8.093 6,283,218.81 7.740
72 8/3/99 423238 1/25/00 1/25/00 none 3,551,602.96 8.539 5,238,614.36 8.160
79 12/4/97 423239 1/25/00 1/25/00 none 3,429,290.30 8.324 5,058,203.19 8.000
97 8/11/98 423223 1/25/00 1/25/00 none 2,337,460.28 8.203 3,447,753.91 7.930
101 8/11/98 423226 1/25/00 1/25/00 none 1,998,363.85 8.203 2,947,586.68 7.930
106 8/11/98 423228 1/25/00 1/25/00 none 1,889,721.38 8.203 2,787,339.04 7.930
117 8/11/98 423234 1/25/00 1/25/00 none 1,603,300.22 8.203 2,364,867.83 7.930
126 8/11/98 423233 1/25/00 1/25/00 none 1,382,722.91 8.203 2,039,516.29 7.930
134 8/11/98 423220 1/25/00 1/25/00 none 1,119,347.17 8.203 1,651,037.07 7.930
137 8/11/98 423222 1/25/00 1/25/00 none 987,659.29 8.203 1,456,797.45 7.930
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
EXHIBIT I-1
FORM OF MGT LOAN SALE AGREEMENT
EXHIBIT I-2
FORM OF LASALLE LOAN SALE AGREEMENT
EXHIBIT J
FORM OF ACKNOWLEDGEMENT
EXHIBIT J-2
Confidentiality Agreement
[Date]
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Ladies and Gentlemen:
The undersigned hereby requests the Asset Strategy Report as amended or restated
from time to time (the "Report") in connection with Mortgage Loan Number (the
"Mortgage Loan") as identified in the pooling and servicing agreement (the
"Pooling and Servicing Agreement") dated as of January 1, 2000, by and among
J.P. Morgan Commercial Mortgage Finance Corp., as depositor, LaSalle Bank
National Association, as bond administrator, Norwest Bank Minnesota, National
Association, as trustee and ORIX Real Estate Capital Markets LLC, as master
servicer and special servicer. Capitalized terms used herein and not otherwise
defined shall have the meaning set forth in the Pooling and Servicing Agreement.
The undersigned acknowledges and agrees that disclosing any information
contained in the Report to the related mortgagor, an affiliate thereof or a
person acting on their behalf would interfere with the property rights of the
Trust Fund and the Certificateholders and result in additional losses and costs
thereto. Such disclosure would also thus adversely impact the planning, strategy
and servicing by the Special Servicer of the related Mortgage Loan, Mortgaged
Property or REO Loan in accordance with the Pooling and Servicing Agreement. The
undersigned represents that none of it, or its Representatives is the related
mortgagor, an affiliate thereof or a person acting on their behalf. Realizing
the serious nature of any use or disclosure adverse to the terms herein, the
undersigned hereby agrees to indemnify and hold harmless the Trust Fund, the
Certificateholders and the Special Servicer from any claim or legal action
(whether in law or equity) and any other monetary loss related to the
undersigned's disclosure or use of the information contained in the Asset
Strategy Report inconsistent with the terms of this Agreement.
The undersigned acknowledges and agrees that it is imperative that the Report
remains confidential. Accordingly, the undersigned agrees that before it or any
of its affiliates, or it or its affiliates' agents, advisors, or representatives
(each, a "Representative") may be given access to the Reports, the undersigned
and each such affiliate and Representative shall agree to be bound by the terms
of this Agreement. The undersigned agrees to be responsible for any breach of
this Agreement by its affiliates or its or their Representatives.
To maintain the confidentiality of the Reports, the undersigned and each
individual or entity agreeing to be bound by this Agreement agree:
(a) Not to use or allow the use for any purpose of the Reports or
notes, summaries, or other material derived by the
undersigned, its affiliates, or its or their Representatives
from the Report (collectively, "Notes") except to determine
whether to implement the recommended actions outlined in the
Report;
(b) Not to disclose or allow disclosure to others of the Report or
Notes except to its affiliates or to its or their
Representatives, in each case to the extent necessary to
permit such affiliate or Representative to assist the
undersigned in making the determinations referred to in clause
(a) above;
(c) Not to disclose or allow disclosure to persons other than
those described in clause (b) above that the Report has been
made available to the undersigned, that the undersigned, its
affiliates, or its or their Representatives have inspected the
Reports; and
(d) Not to make or allow to be made copies of the Report except in
the form of Notes made by the undersigned, its affiliates, or
its or their Representatives, or as the Bond Administrator may
specifically authorize in writing.
You may, upon reasonable belief that the undersigned, or any individual or
entity agreeing to be bound by this Agreement breached this Agreement, elect at
any time to terminate further access by any or all such parties to the Report
and the undersigned agrees that upon any such termination, it will promptly (and
in any case within 7 days of the Bond Administrator's request), return to the
Bond Administrator the Report except Notes and will cause all Notes to be
destroyed, and confirm in writing to the Bond Administrator the fact that all
such material has been returned or destroyed in compliance with the terms of
this Agreement. No such termination will affect the undersigned's obligations
hereunder or those of its affiliates or its or their Representatives, all of
which obligations shall continue in effect.
This Agreement shall be inoperative as to particular portions of the Report if
such Report (i) becomes generally available to the public other than as a result
of a disclosure by the undersigned, its affiliates, or its or their
Representatives, (ii) was available to the undersigned on a non-confidential
basis prior to its disclosure to the undersigned by the Bond Administrator, or
(iii) becomes available to the undersigned on a non-confidential basis from a
source other than the Bond Administrator or its agents, advisors, or
representatives when such source is entitled, to the best of the undersigned's
knowledge, to make such disclosure. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflicts of laws principles thereof.
If the undersigned, its affiliates, or its or their Representatives are
requested or required (by oral questions, interrogatories, requests for the
Report, subpoena, civil investigative demand, or similar process) to disclose
the Report or Notes, it is agreed that the undersigned will provide the Bond
Administrator and the Special Servicer with prompt written notice of such
request(s), to the extent practicable, so that they may seek an appropriate
protective order and/or waive your compliance with the provisions of this
Agreement. If, failing the entry of a protective order or the receipt of a
waiver hereunder, the undersigned, its affiliates, or its or their
Representatives are, in the opinion of the undersigned's counsel compelled to
disclose the Report or Notes under pain of liability for contempt or other
censure or penalty, the undersigned may disclose only that portion of the
Report as is legally required without liability hereunder, provided that the
undersigned agrees to exercise its best efforts to obtain assurance that
confidential treatment will be accorded the Report.
This Agreement sets forth the entire agreement between the parties with respect
to the matters described herein and supersedes all prior agreements and
understandings, oral and written, between the parties with respect thereto.
Very truly yours,
[Certificateholder]
By:______________________________________
Name:
Title:
Accepted and agreed to as of the date above written
LASALLE BANK
NATIONAL ASSOCIATION
By:_____________________________________
Name:
Title:
EXHIBIT K
CONFIDENTIALITY AGREEMENT
EXHIBIT L
FORM OF SPECIAL SERVICER LETTER PURSUANT TO SECTION 4.01(e)
EXHIBIT "L"
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]:
Please be advised that the servicing of the above referenced loan has
been returned to ["Master Servicer's Name"].
Please continue to remit all payments to ["Master Servicer's Name"].
["Master Servicer's Name"] will continue to process your checks and maintain the
accounting records for this loan. Please remember to use the above ["Master
Servicer's Name"] Loan Number when communicating with us and making your
payments to ["Master Servicer's Name"].
Should you have any questions, please call _________________________
or write at the following address:
Master Servicer's Name
Master Servicer's Address
Sincerely,
cc: ["Special Servicer's Name"]
EXHIBIT M
FORM OF PROPERTY INSPECTION REPORT PURSUANT TO SECTION 4.09(a)
EXHIBIT N
[RESERVED]
EXHIBIT O
[RESERVED]
EXHIBIT P
[RESERVED]
EXHIBIT Q
[RESERVED]
EXHIBIT R
[RESERVED]
EXHIBIT S
FORM OF NOTICE REGARDING TRANSFER TO SPECIAL SERVICING
PURSUANT TO SECTION 6.02(a)
EXHIBIT "S"
MASTER SERVICER STATIONERY
Date
Bond Administrator 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 ["Master 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 ["Master Servicer's
Name"], a payment default has occurred or is imminent and is not likely to
be cured by the related Mortgagor within sixty (60) days;
5. The related Mortgagor has admitted in writing its inability to pay its
debts generally as they become due, has filed a petition to take advantage
of any applicable insolvency or reorganization 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 ["Master Servicer's Name"] pursuant to Section 4.11 of the
Servicing Agreement, has requested either an extension of the related
Maturity Date of any other modification or has otherwise indicated the
inability to make the payment due on such Maturity Date, or has failed to
respond within thirty (30) days after the 3-months' notice letter
referenced in Section 4.11 of the Servicing Agreement;
7. Any other material default has, in ["Special Servicer's Name"]'s judgment
or ["Master 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, ["Master Servicer's Name"] cannot enter into an
assumption agreement pursuant to section 4.08 of the Servicing Agreement.
All capitalized terms used herein shall have the same meaning as
defined in, and all references to the "Servicing Agreement' shall refer to, the
Servicing Agreement among ["Special Servicer's Name"], ["Master Servicer's
Name"], and the Initial Owner, Morgan Guaranty Trust Company of New York.
Sincerely,
By: ___________________________________
Name: _________________________________
Title: ________________________________
EXHIBIT T
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 ["Master Servicer's Name"]
while your loan is being serviced by ("Special Servicer"). ["Master Servicer's
Name"] will continue to process your checks and maintain the accounting records
for this loan. The acceptance of any payments by ["Master Servicer's Name"] does
not constitute any agreement to modify or amend your loan in any way.
A ("Special Servicer") employee will contact you shortly to discuss
what options are available to you at this time. Should you have any questions
regarding your loans, please contact ("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 ["Master Servicer's
Name"] loan number when communicating with ("Special Servicer") and making your
payments to ["Master 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 ["Master 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 ["Master 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 [Master 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")
EXHIBIT U
[RESERVED]
EXHIBIT V
[RESERVED]
EXHIBIT W
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(a)
EXHIBIT "W"
SPECIAL SERVICER STATIONERY
Date
Bond Administrator
Bond Administrator Address
Trustee
Trustee Address
Master Servicer
Master Servicer's address
Master Servicer
Master 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
EXHIBIT X
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(b)
EXHIBIT "X"
SPECIAL SERVICER STATIONERY
Date
Mortgagor's Name
Mortgagor's Address
Master Servicer's Name
Master Servicer's Address
Re: Transfer of Servicing of Loan in the Name of [Mortgagor's Name],
Loan [Mortgager's Primary ID Number]
Dear Sir or Madam:
Please be advised that the servicing of the above-referenced loan will
be returned to [Master Servicer's Name] for servicing as of the date of this
letter. This loan is being returned to ["Master Servicer's Name"] for servicing
for the following reason:
1. The loan has been current in payments under existing terms for
three consecutive monthly payments.
2. The loan is returned to ["Master Servicer's Name"] based upon
receipt of information which resulted in the loan not being
considered a Specially Serviced Mortgage Loan.
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 ["Master Servicer's Name"].
["Master Servicer's Name"] will continue to process your checks and maintain the
accounting records for this loan. Please remember to use the above ["Master
Servicer's Name"] Loan Number when communicating with us and making your
payments to ["Master Servicer's Name"].
Please acknowledge receipt of this letter by signing the enclosed copy
and return it to my attention.
Sincerely,
By: ___________________________________
Name: _________________________________
Title: ________________________________
cc: ["Master Servicer's Name"]
Borrower Acknowledgment
By: ________________________________
Name: ______________________________
Title: _____________________________
Date: ______________________________
EXHIBIT Y
FORM OF REQUEST FOR RELEASE AND RECEIPT OF DOCUMENTS PURSUANT TO SECTION 11.14
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 [o], as amended and restated as of
______________, by and among Mortgage Guaranty Trust Company of New
York, LaSalle Bank National Association, Norwest Bank Minnesota,
National Association 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: _________________________________
EXHIBIT Z
REO ACCOUNT LETTER PURSUANT TO SECTION 6.09(b)
EXHIBIT Z
<TABLE>
<CAPTION>
REO ACCOUNTS REPORT
FROM (DAY AFTER PRIOR PRIMARY REMITTANCE DATE)
TO AND INCLUDING (CURRENT PRIMARY REMITTANCE DATE) Account #
<S> <C> <C>
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 Master 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 Master Servicer $0.00 ___________
TOTAL DISBURSEMENTS $0.00
===========
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 Master Servicer Advances $0.00
LATE FEES/PREPAYMENT PREMIUMS $0.00
UNAPPLIED FUNDS $0.00
LOANS IN PROCESS $0.00
INVESTMENT INCOME - Due to Master 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 Master Servicer $0.00 ___________
TOTAL DISBURSEMENTS $0.00
===========
</TABLE>
