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) October 4, 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 (I.R.S. Employer
of Incorporation) File Number) Identification No.)
60 Wall Street
New York, New York 10260
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(Address of Principal Executive Offices and Zip Code)
Registrant's telephone number, including area code (212) 648-9344
<PAGE>
Item 5. Other Events
Filing of Pooling and Servicing Agreement.
-----------------------------------------
On September 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, Midland
Loan Services, Inc., as master servicer, ORIX Real Estate Capital Markets,
LLC, as special servicer and State Street Bank and Trust Company, as trustee.
The Pooling and Servicing Agreement is annexed hereto as Exhibit 99.
<PAGE>
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
------------------------
(a) Not applicable
(b) Not applicable
(c) Exhibits.
The following is filed herewith. The exhibit number corresponds with
Item 601(b) of Regulation S-K.
Exhibit No. Description
----------- -----------
99 Pooling and Servicing Agreement
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
J.P. MORGAN COMMERCIAL MORTGAGE
FINANCE CORP.
By: /s/ Clive Bull
-----------------------------
Name: Clive Bull
Title: Vice President
Dated: October 19, 2000
<PAGE>
Exhibit Index
Exhibit Page
------ ----
99. Pooling and Servicing Agreement
<PAGE>
EXHIBIT 99
EXECUTION COPY
===============================================================================
J.P. Morgan Commercial Mortgage Finance Corp.,
Depositor,
Midland Loan Services, Inc.
Master Servicer,
ORIX Real Estate Capital Markets, LLC,
Special Servicer,
and
State Street Bank and Trust Company
Trustee
--------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2000
--------------------------------
$740,083,871
Mortgage Pass-Through Certificates
Series 2000-C10
===============================================================================
<PAGE>
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
Additional Trust Fund Expense........................................4
Adjusted Available Distribution Amount...............................5
Advance..............................................................5
Advance Rate.........................................................5
Adverse REMIC Event..................................................5
Affiliate............................................................5
Agreement............................................................5
Allocated Net Prepayment Premium.....................................5
Allocation Fraction..................................................5
Anticipated Repayment Date...........................................5
Appraisal Estimate...................................................5
ARD Loan.............................................................6
Asset Strategy Report................................................6
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..........................................7
Basic Special Servicing Fee Rate.....................................7
Bankruptcy Code......................................................7
Book-Entry Certificate...............................................7
Business Day.........................................................7
Certificate..........................................................7
Certificate Account..................................................7
Certificate Balance..................................................7
Certificateholder................................................7, 18
Holder...............................................................7
Certificate Owner....................................................7
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..................................................8
Class H Certificate:.................................................8
Class J Certificate..................................................8
Class K Certificate..................................................8
Class L Certificate..................................................9
Class M Certificate..................................................9
Class NR Certificate.................................................9
Class Q 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...................................12
Collection Account..................................................12
Collection Period...................................................12
Condemnation Proceeds...............................................12
Corporate Trust Office..............................................13
Corrected Mortgage Loan.............................................13
Cross Collateralized 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..............................................14
Delivery Date.......................................................14
Depositor...........................................................14
Depository..........................................................14
Depository Participant..............................................14
Determination Date..................................................14
Directing Certificateholder.........................................14
Directly Operate....................................................14
Disqualified Organization...........................................15
Distribution Date...................................................15
DSCR................................................................15
Due Date............................................................15
Eligible Account....................................................15
Environmental Laws..................................................16
Escrow Account......................................................17
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
Hazardous Materials.................................................18
Holder...........................................................7, 18
Certificateholder...................................................18
Independent.........................................................19
Independent Contractor..............................................19
Initial Senior Component Amount.....................................19
Initial Subservicer.................................................19
Insurance Policy....................................................19
Insurance Proceeds..................................................20
Interest Accrual Amount.............................................20
Interest Distribution Amount........................................20
Interest Reserve Account............................................21
Interest Reserve Loan...............................................21
Interested Person...................................................21
Law.................................................................21
Liquidation Event...................................................21
Liquidation Fee.....................................................21
Liquidation Fee Rate................................................21
Liquidation Proceeds................................................21
Loan Number.........................................................21
Loss Mortgage Loan..................................................21
MAI.................................................................21
Majority Class Q Holder.............................................22
Master Remittance Date..............................................22
Master Servicer.....................................................22
Master Servicing Fee................................................22
Master Servicing Fee Rate...........................................22
Maturity Date.......................................................22
MGT.................................................................22
Minimum Master Servicing Fee Rate...................................22
Monitoring Certificateholder........................................22
Monitoring Class....................................................22
Monthly Payment.....................................................22
Moody's.............................................................22
Mortgage............................................................22
Mortgage Loan.......................................................23
Mortgage Loan Documents.............................................23
Mortgage Loan File..................................................23
Mortgage Loan Purchase Agreement....................................23
Mortgage Loan Schedule..............................................23
Mortgage Loan Seller................................................23
Mortgage Note.......................................................23
Mortgage Rate.......................................................23
Mortgaged Property..................................................24
Mortgagor...........................................................24
Most Subordinate Class of Certificates..............................24
Nonrecoverable Advance..............................................24
Nonrecoverable Advance Certificate..................................24
Non-United States Person............................................24
Non-U.S. Treasury Net Prepayment Premium............................24
Notional Amount.....................................................24
NRSRO...............................................................24
Officers' Certificate...............................................24
Operating Advisor...................................................25
Opinion of Counsel..................................................25
Original Class Balance..............................................25
ORECM...............................................................25
Ownership Interest..................................................25
P&I Advance.........................................................25
Pass-Through Rate...................................................25
Payment Reserve.....................................................25
Percentage Interest.................................................25
Permitted Investments...............................................25
Person..............................................................27
Pool Factor.........................................................27
Prepayment Assumption...............................................27
Prepayment Interest Excess..........................................27
Prepayment Interest Shortfall.......................................27
Prepayment Premium..................................................27
Primary Servicing Fees..............................................27
Prime Rate..........................................................28
Principal Distribution Amount.......................................28
Principal Prepayment................................................28
Private Certificates................................................28
Property Improvement Expenses.......................................28
Property Inspection Report..........................................29
Property Protection Expenses........................................29
Purchase Price......................................................30
Qualified Insurer...................................................30
Rated Final Distribution Date.......................................30
Rating Agency.......................................................30
Realized Loss.......................................................30
Record Date.........................................................31
REMIC...............................................................31
REMIC I.............................................................31
REMIC I Uncertificated Interests....................................31
REMIC II............................................................31
REMIC II Uncertificated Interests...................................31
REMIC III...........................................................31
REMIC Provisions....................................................31
Remittance Period...................................................32
Remittance Rate.....................................................32
Rents from Real Property............................................32
REO Account.........................................................32
REO Acquisition.....................................................32
REO Mortgage Loan...................................................32
REO Proceeds........................................................32
REO Property........................................................33
REO Tax.............................................................33
Repair and Remediation Reserve......................................33
Replacement Reserve.................................................33
Replacement Special Servicer........................................33
Request for Release and Receipt of Documents........................33
Required Appraisal Date.............................................33
Required Rating.....................................................33
Residual Certificate................................................33
Responsible Officer.................................................33
Restricted Period...................................................34
Revised Rate........................................................34
Security Agreement..................................................34
Senior Component Amount.............................................34
Senior Component Distribution Amount................................34
Senior Component Interest Distribution Amount.......................34
Senior Component Principal Distribution Amount......................34
Servicer............................................................35
Servicer Watch List.................................................35
Servicing Advance...................................................35
Servicing Fee.......................................................35
Servicing Fee Rate..................................................35
Servicing Officer...................................................35
Servicing Transfer Date.............................................35
Servicing Transfer Event............................................35
Single-Purpose Entity...............................................36
SPE.................................................................36
Specially Serviced Mortgage Loan....................................36
Special Servicer....................................................36
Startup Day.........................................................36
State Tax Laws......................................................36
Stated Principal Balance............................................37
Suburban Lodge Control Event........................................38
Suburban Lodge Loan.................................................38
Subordinate Component Amount........................................38
Tax Matters Person..................................................38
Tax Returns.........................................................38
Tenant Improvement and Leasing Commissions Reserve..................38
Transfer Date.......................................................38
Transferable Servicing Interest.....................................38
Trust Fund..........................................................38
Trustee.............................................................38
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..........................................39
Uncertificated Interest X...........................................40
Uncertificated Interest XI..........................................40
Uncertified Interest XII............................................40
Uncertified Interest XIII...........................................40
Uncertificated Interest XIV.........................................40
Uncertificated Interest XV..........................................40
Underwriter.........................................................40
United States Person................................................40
U.S. Treasury Net Prepayment Premium................................40
Voting Rights.......................................................40
Weighted Average Remittance Rate....................................41
Withheld Amount.....................................................41
Workout Fee.........................................................41
Workout Fee Rate....................................................41
Section 1.02 Calculations...............................................41
Section 1.03 Rules of Construction......................................41
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES..............41
Section 2.01 Conveyance of Mortgage Loans...................................41
Section 2.02 Acceptance by Trustee..........................................44
Section 2.03 Representations and Warranties of the Depositor, the
Master Servicer and the Special
Servicer; Assignment of Rights.................................45
Section 2.04 Repurchase of Mortgage Loans for Breaches of
Representation and Warranty ...................................50
Section 2.05 Execution of Certificates......................................52
ARTICLE III
GENERAL SERVICING AND ADMINISTRATION.........................................52
Section 3.01 Access to Certain Documentation Regarding the
Mortgage Loans and This Agreement .............................52
Section 3.02 Annual Statement As to Compliance..............................52
Section 3.03 Annual Independent Public Accountants' Servicing Report........52
Section 3.04 Merger or Consolidation of Any Servicer........................53
Section 3.05 Limitation on Liability of the Servicers and Others............53
Section 3.06 Resignation of Servicers.......................................54
Section 3.07 Maintenance of Errors and Omissions and Fidelity Coverage......54
Section 3.08 Indemnity......................................................55
Section 3.09 Information Systems............................................56
Section 3.10 Successor to a Servicer........................................57
Section 3.11 REMIC Administration and Other Tax Matters.....................58
Section 3.12 Notices to Mortgagors..........................................61
Section 3.13 Subservicing...................................................62
Section 3.14 Record Title to Mortgage Loans, Etc............................63
Section 3.15 Release of Documents and Instruments of Satisfaction...........63
Section 3.16 Additional Servicing Restrictions; Defeasance..................64
Section 3.17 Interest Reserve Account.......................................65
ARTICLE IV
MASTER SERVICING.............................................................65
Section 4.01 The Master Servicer............................................65
Section 4.02 Collection Account; Collection of Certain Mortgage
Loan Payments .................................................68
Section 4.03 Permitted Withdrawals from the Collection Account..............70
Section 4.04 Remittances to the Trustee.....................................72
Section 4.05 Master Servicer Advances.......................................73
Section 4.06 Escrow Accounts................................................75
Section 4.07 Maintenance of Insurance.......................................77
Section 4.08 Enforcement of "Due-on-Sale" Clauses;
Assumption Agreements .........................................79
Section 4.09 Review of Property Inspections, Operating Statements
and Rent Rolls ................................................80
Section 4.10 Reports of the Master Servicer and the Trustee.................81
Section 4.11 Confirmation of Balloon Payment................................82
Section 4.12 Master Servicer Compensation...................................82
Section 4.13 Adjustment of Master Servicer's Compensation...................83
Section 4.14 Implementation of Operations and Maintenance Plans.............83
Section 4.15 Dissemination of Information...................................83
ARTICLE V
[RESERVED]...................................................................83
ARTICLE VI
SPECIAL SERVICING............................................................83
Section 6.01 The Special Servicer...........................................83
Section 6.02 Transfer to Special Servicing..................................84
Section 6.03 Servicing of Specially Serviced Mortgage Loans.................85
Section 6.04 Management of REO Property.....................................89
Section 6.05 Sale of REO Property and Specially Serviced
Mortgage Loans ................................................91
Section 6.06 REO Account; Collection of REO Proceeds........................92
Section 6.07 Remittance to Master Servicer of Non-REO Proceeds..............93
Section 6.08 Remittances to Master Servicer from the REO Account............93
Section 6.09 Specially Serviced Mortgage Loan Status Reports,
REO Status Reports and Other Reports ..........................93
Section 6.10 Special Servicer Advances......................................94
Section 6.11 Environmental Considerations...................................95
Section 6.12 Restoration of Specially Serviced Mortgage Loans...............96
Section 6.13 Special Servicer Compensation..................................97
Section 6.14 Limitations on the Special Servicer with Respect
to ARD Loans ..................................................98
Section 6.15 Collateral Value Adjustments...................................98
Section 6.16 Replacement Special Servicer...................................99
Section 6.17 Purchase of Defaulted Suburban Lodge Loan.....................100
Section 6.18 Operating Advisor for Suburban Lodge Loan.....................100
ARTICLE VII
PAYMENTS TO CERTIFICATEHOLDERS..............................................103
Section 7.01 Certificate Account; Remittances to the Trustee...............103
Section 7.02 Distributions.................................................104
Section 7.03 Statements to Certificateholders..............................109
Section 7.04 Distribution of Reports to the Trustee and the
Depositor; Advances by the Master Servicer ...................113
Section 7.05 Allocations of Realized Losses and Collateral
Value Adjustments ............................................114
ARTICLE VIII
THE CERTIFICATES............................................................114
Section 8.01 The Certificates..............................................114
Section 8.02 Registration of Transfer and Exchange of Certificates.........117
Section 8.03 Mutilated, Destroyed, Lost or Stolen Certificates.............121
Section 8.04 Persons Deemed Owners.........................................121
ARTICLE IX
THE DEPOSITOR...............................................................121
Section 9.01 Liability of the Depositor....................................121
Section 9.02 Merger, Consolidation or Conversion of the Depositor..........122
Section 9.03 Limitation on Liability of the Depositor and Others...........122
ARTICLE X
DEFAULT.....................................................................122
Section 10.01 Events of Default.............................................122
Section 10.02 Trustee to Act; Appointment of Successor......................125
Section 10.03 Notification to Certificateholders............................126
Section 10.04 Waiver of Events of Default...................................126
Section 10.05 Additional Remedies of Trustee Upon Event of Default..........126
ARTICLE XI
CONCERNING THE TRUSTEE......................................................127
Section 11.01 Duties of the Trustee.........................................127
Section 11.02 Monitoring Certificateholders and Directing
Certificateholder ............................................128
Section 11.03 Powers of Attorney............................................130
Section 11.04 Certification by Certificate Owners...........................130
Section 11.05 Certain Matters Affecting the Trustee.........................130
Section 11.06 The Trustee Not Liable for Certificates or
Mortgage Loans ...............................................131
Section 11.07 Trustee May Own Certificates..................................132
Section 11.08 Fees and Expenses of Trustee; Indemnification
of Trustee ...................................................132
Section 11.09 Eligibility Requirements for Trustee..........................133
Section 11.10 Resignation and Removal of Trustee............................133
Section 11.11 Successor Trustee.............................................134
Section 11.12 Merger or Consolidation of Trustee............................135
Section 11.13 Appointment of Co-Trustee or Separate Trustee.................135
Section 11.14 Appointment of Custodians.....................................136
Section 11.15 Representations and Warranties of the Trustee.................138
Section 11.16 SEC Filings...................................................139
Section 11.17 Massachusetts Filings.........................................139
ARTICLE XII
TERMINATION.................................................................139
Section 12.01 Termination Upon Repurchase or Liquidation
of All Mortgage Loans .........................................139
ARTICLE XIII
MISCELLANEOUS PROVISIONS....................................................141
Section 13.01 Amendment.....................................................141
Section 13.02 Recordation of Agreement; Counterparts........................142
Section 13.03 Limitation on Rights of Certificateholders....................143
Section 13.04 Governing Law.................................................144
Section 13.05 Notices. 144
Section 13.06 Severability of Provisions....................................144
Section 13.07 Grant of a Security Interest..................................145
Section 13.08 Successors and Assigns........................................145
Section 13.09 Article and Section Headings..................................145
Section 13.10 Notices and Information to Rating Agencies....................145
Section 13.11 Certificateholders' List......................................147
Section 13.12 Protection of Assets..........................................147
EXHIBITS
Exhibit A Form of Certificate...........................................A-1
Exhibit B Form of Asset Strategy Report.................................B-1
Exhibit C Form of Transferor Certificate.................................C-1
Exhibit D-1 Form of Investment Letter - Qualified
Institutional Buyer .........................................D-1-1
Exhibit D-2 Form of Investment Letter - Regulation S.....................D-2-1
Exhibit E Form of Investment Letter - Accredited Investor................E-1
Exhibit F-1 Form of Transfer Affidavit...................................F-1-1
Exhibit F-2 Form of Transferor Certificate...............................F-2-1
Exhibit G Mortgage Loan Schedule.........................................G-1
Exhibit H Property Information Reports...................................H-1
Exhibit I Form of Mortgage Loan Purchase Agreement.....................I-1-1
Exhibit J Form of Acknowledgment.........................................J-1
Exhibit K Confidentiality Agreement for Asset Strategy Report............K-1
Exhibit L Form of Special Servicer Letter Pursuant
to Section 4.01(e) ............................................L-1
Exhibit M Form of Property Inspection Report Pursuant
to Section 4.09(a) ............................................M-1
Exhibit N-1 Form of Confidentiality Letter (Certificate Owner)...........N-1-1
Exhibit N-2 Form of Confidentiality Letter (Prospective Owner)...........N-2-1
Exhibit O [RESERVED].....................................................O-1
Exhibit P [RESERVED].....................................................P-1
Exhibit Q [RESERVED].....................................................Q-1
Exhibit R [RESERVED].....................................................R-1
Exhibit S Form of Notice Regarding Transfer to Special Servicing
Pursuant to Section 6.02(a) ...................................S-1
Exhibit T Form of Notification of Servicing Transfer.....................T-1
Exhibit U [RESERVED].....................................................U-1
Exhibit V [RESERVED].....................................................V-1
Exhibit W Form of Special Servicer Notice Pursuant to
Section 6.12(a) ...............................................W-1
Exhibit X Form of Special Servicer Notice Pursuant to
Section 6.12(b) ...............................................X-1
Exhibit Y Form of Request for Release and Receipt of Documents
Pursuant to Section 11.14 .....................................Y-1
Exhibit Z REO Account Letter Pursuant to Section 6.09(b).................Z-1
<PAGE>
This Pooling and Servicing Agreement, dated and effective as of
September 1, 2000, among J.P. Morgan Commercial Mortgage Finance Corp., a
Delaware corporation, as Depositor, Midland Loan Services, Inc., a Delaware
corporation, as Master Servicer, ORIX Real Estate Capital Markets, LLC, a
Delaware limited liability company, as Special Servicer and State Street Bank
and Trust Company, a Massachusetts trust company, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates, to
be issued hereunder in multiple classes, which in the aggregate will evidence
the entire beneficial ownership Interest In the Mortgage Loans (as defined
below). The Mortgage Loans will be serviced pursuant to the terms hereof. The
Depositor hereby assigns to the Trustee, acting on behalf of the
Certificateholders, its interests and rights in the Mortgage Loans. As
provided herein, the Trustee will elect that the segregated pool of assets
subject to this Agreement (including, without limitation, the Mortgage Loans)
be treated for federal income tax purposes as a real estate mortgage
investment conduit (a "REMIC") and such segregated pool of assets will be
designated as "REMIC I". One hundred sixty-eight partial undivided beneficial
ownership interests in each of the Mortgage Loans (the "REMIC I Uncertificated
Classes") will be designated as the "regular interests" in REMIC I and the
Class R-I Certificates will be the sole class of "residual interests" in REMIC
I, for purposes of the REMIC Provisions (as defined herein) under federal
income tax law. A segregated pool of assets consisting of the REMIC I
Uncertificated Classes will be designated as "REMIC II" and the Trustee will
make a separate REMIC election with respect thereto. Fifteen 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 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 L, Class M,
Class NR, Class Q 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 7.1075% $95,500,000
Class A2 7.3710% $471,331,000
Class B (1) $31,388,000
Class C (2) $29,541,000
Class D (3) $9,232,000
Class E (4) $23,079,000
Class F (5) $10,155,000
Class X (6) $738,541,419(7)
Class G 6.75% $14,771,000
Class H 6.75% $14,771,000
Class J 6.75% $7,385,000
Class K 6.75% $5,539,000
Class L 6.75% $7,386,000
Class M 6.75% $5,539,000
Class NR 6.75% $12,924,419
Class Q 8.7273% $1,542,452
Class R-I NA NA
Class R-II NA NA
Class R-III NA NA
--------------
(1) The Pass-Through Rate for this class of certificates will be the Weighted
Average Remittance Rate minus 0.827%.
(2) The Pass-Through Rate for this class of certificates will be the Weighted
Average Remittance Rate minus 0.700%.
(3) The Pass-Through Rate for this class of certificates will be the Weighted
Average Remittance Rate minus 0.600%.
(4) The Pass-Through Rate for this class of certificates will be the Weighted
Average Remittance Rate minus 0.141%.
(5) The Pass-Through Rate for this class of certificates will be the Weighted
Average Remittance Rate.
(6) The Pass-Through Rate for the Class X Certificates will be equal to the
Weighted Average Remittance Rate over the Weighted Average of the
Pass-Through Rates on all other classes of Certificates, excluding the
Class Q Certificates.
(7) Notional Amount.
As of close of business on the Cut-off Date, the Mortgage Loans had
an aggregate Cut-off Date Balance equal to $740,083,871.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accepted 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
Mortgagor.
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
Mortgagor.
"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.
"Additional Trust Fund Expense": Any unanticipated expense within the
meaning of Treasury Regulation Section 1.860G-1(b)(3)(iii) experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss, that would result in the Certificateholders receiving less than
the full amount of principal and/or interest to which they are entitled on any
Distribution Date.
"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.
"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.
"Appraisal Estimate": With respect to any Mortgage Loan having a
principal balance of less than $1,000,000, (a) the Special Servicer's good
faith estimate of the value of the related Mortgaged Properties of such
Mortgage Loan as certified to the Master Servicer or (b) with the consent of
the Directing Certificateholder, an Independent MAI appraisal.
"ARD Loan": A Loan that is designated as such on the Mortgage Loan
Schedule.
"Asset Strategy Report": The report prepared pursuant to Section
6.03(c).
"Assignment of Leases and Rents": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Mortgagor, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of
all or a portion of such Mortgaged Property, in the form which was duly
executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
effect the transfer of the Mortgage to the Trust Fund, which assignment,
notice of transfer or equivalent instrument may be in the form of one or more
blanket assignments covering the Mortgage Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
"Available Distribution Amount": With respect to any Distribution
Date, (a) the amount on deposit in the Certificate Account as of the close of
business on the related Master Remittance Date immediately preceding such
Distribution Date, after giving effect to expenses of the Trust Fund (other
than distributions on the Certificates) pursuant to this Agreement, plus any
P&I Advances deposited in the Certificate Account with respect to such
Distribution Date and (b) with respect to the Distribution Date occurring in
March of each calendar year, the Withheld Amounts with respect to the Interest
Reserve Loans deposited in the Interest Reserve Account by the Trustee in
January and/or February of such calendar year in accordance with Section 3.17;
net of, (x) with respect to the Distribution Date occurring in (A) January of
each calendar year that is not a leap year and (B) February of each calendar
year, the Withheld Amounts with respect to the Interest Reserve Loans
deposited in the Interest Reserve Account by the Trustee with respect to such
Distribution Date in accordance with Section 3.17 and (y) any amounts payable
to the Class Q Certificates pursuant to Section 7.02(d).
"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).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking and savings and loan institutions in the states of Missouri,
Texas, Massachusetts, New York, or the Commonwealth of Pennsylvania are
authorized or obligated by law or executive order to remain closed.
"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 L, Class
M, Class NR, Class Q, Class R-I, Class R-II or Class R-III Certificate.
"Certificate Account": The segregated trust account or accounts
created and maintained by the Trustee pursuant to Section 7.01 in trust for
Certificateholders, which shall be entitled "State Street Bank and Trust
Company, as Trustee, in trust for registered holders of J.P. Morgan Commercial
Mortgage Finance Corp., Mortgage Pass-Through Certificates, Series 2000-C10".
"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,
Class L, Class M, Class NR or Class Q Certificate, as of any date of
determination, the then outstanding principal amount of such Certificate equal
to the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Class Balance of the Class of Certificates to which
such Certificate belongs. None of the Class X or Residual Certificates have a
Certificate Balance.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Master Servicer,
Special Servicer, the Depositor or any Affiliate thereof shall be deemed not
to be outstanding with respect to Sections 10.04 and 13.01. The Trustee shall
be entitled to request and rely upon a certificate of the Master Servicer,
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. The initial
Certificate Registrar shall be the Trustee.
"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 L Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class M 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 Q 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; provided, however, that the Class
Prepayment Fraction for the Class Q Certificates will be 0.
"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
7.10750% 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
7.37100% 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 0.827% 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 0.700% 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 DX Component, with a Pass-Through Rate for
any Distribution Date equal to 0.600% per annum and a notional
amount solely for purposes of calculating interest thereon
equal to the Class Balance of the Class D Certificates
immediately prior to such distribution Date;
(f) the Class EX Component, with a Pass-Through Rate for
any Distribution Date equal to 0.141% per annum and a notional
amount solely for purposes of calculating interest thereon
equal to the Class Balance of the Class E Certificates
immediately prior to such Distribution Date;
(g) 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 6.750%
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;
(h) 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 6.750%
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;
(i) 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 6.750%
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;
(j) 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 6.750%
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;
(k) the Class LX 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 6.750%
per annum and a notional amount solely for purposes of
calculating interest thereon equal to the Class Balance of the
Class L Certificates immediately prior to such Distribution
Date;
(l) the Class MX 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 6.750%
per annum and a notional amount solely for purposes of
calculating interest thereon equal to the Class Balance of the
Class M Certificates immediately prior to such Distribution
Date; and
(m) 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 6.750%
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; provided,
however, that files 4 and 6 shall not be prepared by the Master Servicer; 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.
"Code": The Internal Revenue Code of 1986, as amended.
"Collateral Value Adjustment": With respect to a Mortgage Loan as to
which a Collateral Value Adjustment Event has occurred, an amount equal to the
excess of (a) the Stated Principal Balance of the Mortgage Loan as of the date
of the Collateral Value Adjustment Event over (b) the excess of (i) 90% of the
current appraised value of the related Mortgaged Property as determined by an
Independent MAI appraisal thereof prepared in accordance with 12 CFR ss.
225.62 (or, in the case of Mortgage Loans having a principal balance under
$1,000,000, an Appraisal Estimate), 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, and (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).
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) 120 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 "Midland Loan Services, Inc., as Master
Servicer, for the benefit of State Street Bank and Trust Company, in trust for
the registered holders of J.P. Morgan Commercial Mortgage Finance Corp.
Mortgage Pass-Through Certificates Series 2000-C10 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.
"Condemnation Proceeds": With respect to each Mortgage Loan, all
awards or settlements in respect of a Mortgaged Property, 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 or a third party 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
State Street Bank and Trust Company, 2 Avenue de Lafayette; Boston,
Massachusetts 02111, Attention: Corporate Trust Service (CMBS), J.P. Morgan
Commercial Mortgage Finance Corp. Series 2000-C10.
"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).
"Cross Collateralized Loan": Any Mortgage Loan that is
cross-collateralized or cross-defaulted with any other Mortgage Loan.
"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 the Trustee.
"Cut-off Date": September 1, 2000, except for Loan Number 9 which has
a Cut-off Date of September 10, 2000 and Loan Numbers 63 and 66 which have a
Cut-off Date of September 11, 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 (a) is more than
60 days delinquent in whole or in part in respect of any Monthly Payment or
(b) is delinquent for more than 30 days in whole or in part in respect of the
related Balloon Payment, if any, unless the Master Servicer reasonably expects
the related Mortgagor will continue to make Monthly Payments and the Master
Servicer receives written evidence that the related Mortgagor has obtained a
binding commitment from an institutional lender to refinance the Mortgage Loan
in which case the Mortgage Loan shall not become a Defaulted Mortgage Loan
until the lesser (x) of 60 days from the Due Date of the Balloon Payment and
(y) the date on which the Mortgage Loan is expected to be paid in full from
proceeds of the refinancing loan; 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": October 4, 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 Trustee from time to time; provided, that, absent
such selection, or (i) until a Directing Certificateholder is so selected, or
(ii) upon receipt of notice from a majority of the Monitoring
Certificateholders, by Certificate Balance, that a Directing Certificateholder
is no longer so designated, the Monitoring Certificateholder(s) which owns the
largest aggregate Certificate Balance of one or more Monitoring Classes shall
be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation
of such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust Fund other than
through an Independent Contractor; provided, however, that the Trustee (or the
Master Servicer or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Master Servicer or the Special Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such REO Property.
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (ii)
any organization (other than a cooperative described in Section 521 of the
Code) which is exempt from the tax imposed by Chapter 1 of the Code unless
such organization is subject to the tax imposed by Section 511 of the Code, or
(iii) any organization described in Section 1381(a)(2)(C) of the Code. A
corporation will not be treated as an instrumentality of the United States or
of any State or any political subdivision thereof if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation (a corporate instrumentality of the United States), a majority of
its board of directors is not selected by a governmental unit.
"Distribution Date": The fifteenth (15th) day (or if any such day is
not a Business Day, the Business Day immediately succeeding such fifteenth
(15th) day) of each month beginning in October 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) (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 "A3"
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) 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 and the Trustee shall each use ratings that have been
issued within the three-month period preceding the date of such
determination, and shall re-check the applicable ratings of any
depository institution with whom they have established an account no
less often than every three months. If any such depository
institution ceases to satisfy the requirements set forth above, then
each of such accounts that are held by such depository institution
shall be transferred to a depository institution which satisfies
such requirements within 30 days; or
(c) an account or accounts of a depository institution
acceptable to each Rating Agency (as evidenced in writing by each
Rating Agency that use of any such account as the Certificate
Account, Escrow Account, REO Account or Collection Account will not
result in a downgrading, qualification (if applicable) or withdrawal
of the ratings then assigned to the Certificates); or
(d) PNC Bank, National Association ("PNC") so long as the
short-term unsecured debt of PNC has ratings of at least "P-1" by
Moody's and "F-1+" by Fitch and PNC's long-term debt has ratings of
at least "A1" by Moody's and "AA-" by Fitch.
"Environmental Laws": Any present or future federal, state or local
law, statute, regulation or ordinance, and any judicial or administrative
order or judgment thereunder, pertaining to health, industrial hygiene,
Hazardous Materials or the environment, including, but not limited to, each of
the following, as enacted as of the date hereof or as hereafter amended:
(i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42
U.S.C.ss.ss. 9601-9657;
(ii) the Resource Conservation and Recovery Act of 1976,
42 U.S.C.ss.ss. 6901-6991i;
(iii) the Toxic Substance Control Act, 15 U.S.C.ss.ss.
2601-2629;
(iv) the Water Pollution Control Act (also known as the
Clean Water Act), 33 U.S.C.ss. 1251 et seq.;
(v) the Clean Air Act, 42 U.S.C.ss. 7401 et seq.; and
(vi) the Hazardous Materials Transportation Act, 49
U.S.C.ss. 1801 et seq.
"Escrow Account": Each separate account or subaccount, each of which
shall be an Eligible Account (to the extent consistent with the related
Mortgage Loan Documents), created and maintained for the Mortgage Loans
pursuant to Section 4.06 hereof, each of which shall be entitled "Midland Loan
Services, Inc., as Master Servicer, for the benefit of J.P. Morgan Commercial
Mortgage Finance Corp. Mortgage Pass-Through Certificates, Series 2000-C10,
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, Inc.
"Hazardous Materials": All materials subject to any Environmental
Law, including, without limitation, materials listed in 49 C.F.R. ss. 172.010,
materials defined as hazardous pursuant to ss. 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
flammable, explosive or radioactive materials, hazardous or toxic wastes or
substances, lead-based materials, petroleum or petroleum distillates or
asbestos or material containing asbestos, polychlorinated biphenyls ("PCBs"),
radon gas, urea formaldehyde and any substances classified as being "in
inventory", "usable work in process" or similar classification that would, if
classified as unusable, be included in the foregoing definition.
"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 Senior Component Amount": $12,000,000.
"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 and the Class
Q 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. With respect to each Distribution Date and any Class Q
Certificate, 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 and the actual number of days elapsed) on the
Class Balance outstanding immediately prior to such Distribution Date at the
then applicable Pass-Through Rate for such Distribution Date.
"Interest Distribution Amount": With respect to each Distribution
Date and any Class (other than the Class Q Certificates), 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
any 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 (other than the Class Q
Certificates) 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, other than the Suburban Lodge
Loan, and the portion of the excess of any interest deferred with respect to
the Suburban Lodge Loan over the Interest Distribution Amount for the Class Q
Certificates (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). With respect to each Distribution Date and the
Class Q Certificates, the Interest Accrual Amount for such Distribution Date
and such Class increased by any 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
Q Certificates shall be reduced by the portion of any interest deferred with
respect to the Suburban Lodge Loan. Such deferred amount, together with
interest at the related Pass-Through Rate, shall be payable to the extent it
is collected after such Distribution Date.
"Interest Reserve Account": The separate account, which shall be an
Eligible Account, created and maintained by the Trustee pursuant to Section
3.17 in trust for the Certificateholders, which shall be entitled "State
Street Bank and Trust Company, as Trustee, in trust for registered holders of
J.P. Morgan Commercial Mortgage Finance Corp., Mortgage Pass-Through
Certificates, Series 2000-C10--Interest Reserve Account."
"Interest Reserve Loan": Any Mortgage Loan bearing interest computed
on an actual/360 basis.
"Interested Person": As of any date of determination with respect to
any Mortgage Loan, the Mortgagor, the Mortgage Loan Seller, the Depositor, the
Special Servicer or the Master Servicer.
"Law": Any judgment, order, decree, writ, injunction, award, statute,
rule, regulation or requirement of any federal, provincial, state, local or
other agency, commission, instrumentality, tribunal, governmental authority,
arbitrator or court having or asserting jurisdiction over any particular
Person, property or matter applicable to such particular Person, property or
matter.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan; (iii) such
Mortgage Loan is repurchased by the Depositor pursuant to Section 2.04 or
Section 12.01; or (iv) such Mortgage Loan is purchased by the Master Servicer
or the Special Servicer pursuant to Section 12.01.
"Liquidation 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 Number": The designation of a Mortgage Loan as set forth in the
Mortgage Loan Schedule.
"Loss Mortgage Loan": Any Mortgage Loan (a) as to which a Liquidation
Event has occurred resulting in a Realized Loss, or (b) 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.
"Majority Class Q Holder": The Holder or Holders of a majority
Percentage Interest In the Class Q Certificates.
"Master Remittance Date": With respect to each Distribution Date, one
Business Day preceding such Distribution Date.
"Master Servicer": Midland Loan Services, Inc., a Delaware
corporation, its successor in interest, or any successor servicer appointed as
such as herein provided.
"Master Servicing Fee": As defined in Section 4.12 hereof.
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
related rate set forth under "Master Servicing Fee" in the Mortgage Loan
Schedule.
"Maturity Date": With respect to any Mortgage Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note.
"MGT": Morgan Guaranty Trust Company of New York, and its successors
in interest.
"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
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 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 Purchase Agreement": The mortgage loan purchase
agreement, dated as of September 1, 2000 between MGT and the Depositor related
to the transfer and assignment of the Mortgage Loans attached hereto as
Exhibit I.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred to
the Trustee as part of the Trust Fund, attached hereto as Exhibit G.
"Mortgage Loan Seller": MGT, in its capacity as mortgage loan seller
under the Mortgage Loan Purchase Agreement.
"Mortgage Note": The note or other evidence of indebtedness of a
Mortgagor under a Mortgage Loan, together with all riders thereto and
amendments thereof.
"Mortgage Rate": With respect to any Mortgage Loan, the annual rate
at which interest accrues on such Mortgage Loan in accordance with the terms
of the related Mortgage Loan absent default 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, other than the Class Q Certificates, to which any
Realized Losses would be first allocated 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).
"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 (excluding the
Class Q Certificates) immediately preceding such Distribution Date.
"NRSRO": A nationally recognized statistical rating organization.
"Officers' Certificate": With respect to any Servicer, a certificate
signed by a Servicing Officer of such Servicer.
"Operating Advisor": An operating advisor selected by the Majority
Class Q Holder pursuant to Section 6.18 and any successor thereto.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Master Servicer or
Special Servicer, acceptable and delivered to the Trustee, except that any
opinion of counsel relating to (a) the qualification of the Trust Fund as a
REMIC, (b) compliance with the REMIC Provisions, or (c) any actions or duties
which can not be undertaken or are no longer permitted under applicable law,
must be an opinion of counsel who is in fact Independent.
"Original Class Balance": As to any Class of Certificates with a
Class Balance, the Original Class Balance set forth in the Preliminary
Statement.
"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.
With respect to any Distribution Date and the Senior Component Interest
Distribution Amount, 8.727% per annum. 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 are
rated at least "P-1" by Moody's and "F-1+" by Fitch;
(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. Any obligations or securities
described above of the Trustee, in its commercial capacity, if otherwise
qualified, shall be Permitted Investments hereunder.
"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 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; provided, however, that the Principal
Distribution Amount shall be reduced by any amount described in clauses (a),
(b) or (c) above, due or received with respect to the Suburban Lodge Loan of
an aggregate amount for the related Distribution Date and all prior
Distribution Dates in excess of the Initial Senior Component Amount.
"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
L, Class M, Class NR, Class Q, 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 outstanding 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
Servicing Advances and (iii) all accrued and unpaid interest on related
Advances and unpaid Special Servicing Fees and any Additional Trust Fund
Expense allocable to such Mortgage Loan, 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) the lower of "A" or 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 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 August
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 any Distribution Date and each Loss
Mortgage Loan (or REO Mortgage Loan) as to which a Final Recovery
Determination has occurred during the related Collection Period, an amount
(not less than zero) equal to (i) the outstanding principal balance of the
Loss Mortgage Loan (or REO Mortgage Loan) as of the beginning of the
Collection Period, plus (ii) all accrued and unpaid interest on related
Advances, plus (iii) all accrued and unpaid interest without taking the items
in (iv) into account, minus (iv) the proceeds, if any, received prior to the
Determination Date immediately preceding such Distribution Date, to the extent
applied as recoveries of interest 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, except for the first Distribution Date in which case
the Delivery Date will be the Record Date.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto, constituting
the trust created hereby and to be administered hereunder, consisting of: (a)
the Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of the Mortgage Loans received after the Cut-off
Date (other than payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date), together with all documents
included in the related Mortgage Loan File; (b) such funds or assets as from
time to time are deposited in the Certificate Account; (c) such funds or
assets as from time to time are deposited in the Collection Account, Escrow
Account or REO Account; (d) any REO Property; and (e) all Insurance Policies
with respect to the Mortgage Loans listed on the Mortgage Loan Schedule.
"REMIC I Uncertificated Interests": Each of the one hundred
sixty-eight 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
sixty-eight 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,
Uncertificated Interest XII, Uncertificated Interest XIII, Uncertificated
Interest XIV and Uncertificated Interest XV.
"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.
"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, "P-1" by Moody's and
"F-1+" by Fitch; or
(b) with respect to long-term debt obligations, the long-term
rating of "AA-" by Fitch and "A1" by Moody's (or, if such
obligations are not rated by Fitch, the long-term rating of "A1" 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, 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.
"Senior Component Amount" : With respect to any date of
determination, the Initial Senior Component Amount reduced by any collections
on the Suburban Lodge Loan previously allocated to payment of the Senior
Component Principal Distribution Amount pursuant to Section 7.02(d).
"Senior Component Distribution Amount" : With respect to any
Distribution Date, the sum of the related Senior Component Interest
Distribution Amount and the related Senior Component Principal Distribution
Amount.
"Senior Component Interest Distribution Amount" With respect to any
Distribution Date, 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 of the Distribution Date (calculated on the basis of
a 360-day year and the actual number of days elapsed) on the Senior Component
Amount for such Distribution Date at the applicable Pass-Through Rate,
increased by any excess of (i) the Senior Component Interest Distribution
Amount for the prior Distribution Date over (ii) the amount actually
distributed pursuant to Section 7.02(d)(ii) on the prior Distribution Date.
"Senior Component 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 Suburban Lodge Loan on the related
Due Date whether or not received and all scheduled Balloon Payments received
during the related Remittance Period, (b) if the related scheduled Balloon
Payment is not received on or after the Maturity Date thereof, the principal
payment that would need to be received in the related month in order to fully
amortize such Mortgage Loan with level monthly payments by the end of the term
used to derive scheduled payments of principal due prior to the Maturity Date
and (c) to the extent not previously advanced, any unscheduled principal
recoveries received during the related Remittance Period in respect of the
Suburban Lodge Loan, whether in the form of Liquidation Proceeds, excess
Insurance Proceeds, Excess Consideration Proceeds, REO Proceeds, amount
received as a result of the purchase of the Suburban Lodge Loan out of the
Trust Fund or receipt of overdue payments.
"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 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 and
Massachusetts as well as any state the applicability of which to the Trust or
the REMICs shall have been confirmed to the Trustee in writing either by the
delivery to the Trustee of an Opinion of Counsel to such effect (provided that
the Trustee shall have no obligation to seek or pay for any such Opinion of
Counsel), or by the delivery to the Trustee of a written notification to such
effect by the taxing authority of such state.
"Stated Principal Balance": With respect to any Mortgage Loan (other
than an REO Mortgage Loan), as of any date of determination, (a) the Cut-off
Date Balance, minus (b) the sum, without duplication, of:
(i) the principal portion of each Monthly Payment and
Balloon Payment due on such Mortgage Loan after the
Cut-off Date, to the extent received from the
Mortgagor or advanced and distributed to
Certificateholders before such date of determination;
(ii) all Principal Prepayments received with respect to
such Mortgage Loan after the Cut-off Date, to the
extent distributed to Certificateholders before such
date of determination;
(iii) the principal portion of 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.
"Suburban Lodge Control Event" : A "Suburban Lodge Control Event"
will exist with respect to the Suburban Lodge Loan if, and for so long as, the
Certificate Balance of the Class Q Certificates, giving effect to any
adjustment due to a Collateral Value Adjustment on the Suburban Lodge Loan, is
greater than 25% of the Class Q Certificate Balance as of the Delivery Date.
"Suburban Lodge Loan": The Mortgage Loan identified as Loan No. 12 on
the Mortgage Loan Schedule.
"Subordinate Component Amount": As of any date of determination, the
excess of the Stated Principal Balance of the Suburban Lodge Loan over the
Senior Component Amount.
"Tax Matters Person": The "tax matters person" (as defined in the
REMIC Provisions) of each REMIC created hereunder.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of the Trust Fund due to its classification as a
REMIC under the REMIC Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
State Tax Laws.
"Tenant Improvement and Leasing Commissions Reserve": With respect to
any Mortgage Loan, the amounts required to be paid by the Mortgagor pursuant
to the Mortgage Loan Documents to refit and release either vacant space or
blocks of space anticipated to be vacated during the term of financing.
"Transfer Date": With respect to any Mortgage Loan, shall have the
meaning set forth herein.
"Transferable Servicing Interest": Subject to reduction by the
Trustee pursuant to Section 4.12, the amount by which the Master Servicing
Fees otherwise payable to the Master Servicer hereunder exceed the sum of (i)
the Primary Servicing Fees and (ii) the amount of such Master Servicing Fees
calculated using the Minimum Master Servicing Fee Rate.
"Trust Fund": REMIC I, REMIC II and REMIC III.
"Trustee": State Street Bank and Trust Company, a Massachusetts trust
company or its successor in Interest In its capacity as Trustee hereunder, or
any successor trustee appointed as herein provided.
"Trustee Fee": The fee payable to the Trustee in accordance with
Section 11.08(a).
"Trustee Fee Rate": Shall have the meaning set forth in Section
11.08(a).
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana or the Commonwealth of Puerto Rico,
the comparable provisions of Louisiana or Puerto Rico law, as applicable.
"Uncertificated Interest I": An Interest In REMIC II with a principal
balance equal to the Class Balance of the Class A1 Certificates which accrues
interest at the Weighted Average Remittance Rate.
"Uncertificated Interest II": An Interest In REMIC II with a
principal balance equal to the Class Balance of the Class A2 Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest III": An Interest In REMIC II with a
principal balance equal to the Class Balance of the Class B Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest IV": An Interest In REMIC II with a
principal balance equal to the Class Balance of the Class C Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest V": An Interest In REMIC II with a principal
balance equal to the Class Balance of the Class D Certificates which accrues
interest at the Weighted Average Remittance Rate.
"Uncertificated Interest VI": An Interest In REMIC II with a
principal balance equal to the Class Balance of the Class E Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest VII": An Interest In REMIC II with a
principal balance equal to the Class Balance of the Class F Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest VIII": An Interest In REMIC II with a
principal balance equal to the Class Balance of the Class G Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest IX": An Interest In REMIC II with a
principal balance equal to the Class Balance of the Class H Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest X": An Interest In REMIC II with a principal
balance equal to the Class Balance of the Class J Certificates which accrues
interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XI": An Interest In REMIC II with a
principal balance equal to the Class Balance of the Class K Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertified Interest XII": An Interest In REMIC II with a principal
balance equal to the Class Balance of the Class L Certificates which accrues
interest at the Weighted Average Remittance Rate.
"Uncertified Interest XIII": An Interest In REMIC II with a principal
balance equal to the Class Balance of the Class M Certificates which accrues
interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XIV": 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.
"Uncertificated Interest XV": An Interest In REMIC II with a
principal balance equal to the Class Balance of the Class Q Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Underwriter": Each of J.P. Morgan Securities Inc. and Salomon Smith
Barney Inc.
"United States Person": A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any state thereof or the District of Columbia
(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. 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, Class L, Class M, Class NR, and Class Q
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.
"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.
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"), and all other
assets included or to be included in the Trust Fund, to be held in trust for
the benefit of the Certificateholders. Such assignment includes all interest
and principal received or receivable on or with respect to the Mortgage Loans
(other than payments of principal and interest due and payable on the Mortgage
Loans on or before the Cut-off Date). The transfer of the Mortgage Loans and
related property accomplished hereby is absolute and, notwithstanding Section
13.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment, the Depositor does
hereby deliver to, and deposit with, the Trustee, as the initial Custodian,
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, executed by
the Mortgagor and endorsed by the Mortgage Loan
Seller or the prior holder of record, in blank or to
the order of "State Street Bank and Trust Company, as
Trustee for J.P. Morgan Commercial Mortgage Finance
Corp. Mortgage Pass-Through Certificates Series
2000-C10" and showing a complete chain of
endorsements from the originator;
(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 original assignment of the Mortgage, executed by
the Mortgage Loan Seller or the prior holder of
record in blank or to the order of the Trustee, with
the assignment to the Trustee in the following form:
"State Street Bank and Trust Company, as Trustee for
J.P. Morgan Commercial Mortgage Finance Corp.
Mortgage Pass-Through Certificates Series 2000-C10",
in complete (including recording information) and
recordable form;
(v) assignments in complete and recordable form of any
related Assignment of Leases and Rents and any
related Security Agreement (if, in either case, such
item is a document separate from the Mortgage),
executed by the Mortgage Loan Seller or the prior
holder of record in blank or to the order of the
Trustee, with the assignment to the Trustee in the
following form: "State Street Bank and Trust Company,
as Trustee for J.P. Morgan Commercial Mortgage
Finance Corp. Mortgage Pass-Through Certificates
Series 2000-C10", 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 with
evidence of recording;
(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 and ground lease estoppel;
(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; and
(xii) any escrow, guarantee, environmental liability
agreement, environmental insurance policy,
intercreditor agreement, management agreement, or
lockbox arrangement, in each case if any such
document exists.
(c) The Depositor shall, as to each Mortgage Loan on the Mortgage
Loan Schedule, promptly (and in any event within 45 Business Days of the
Delivery Date) cause (i) the assignment of the Mortgage 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: "State
Street Bank and Trust Company, as Trustee for J.P. Morgan Commercial Mortgage
Finance Corp. Mortgage Pass-Through Certificates Series 2000-C10" 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, and the
further review provided for in 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), and (vii) of Section 2.01(b), and declares that it or the Custodian on
its behalf holds and will hold such documents and the other documents
delivered to it or the Custodian constituting the Mortgage Loan Files, and
that it holds or will hold such other assets included in the Trust Fund, in
trust for the exclusive use and benefit of all present and future
Certificateholders.
(b) On or prior to 60 days following the Delivery Date, the Trustee
shall deliver to the Depositor, the Directing Certificateholder, the Master
Servicer and the Special Servicer, or shall cause the Custodian to deliver to
the Depositor, the Directing Certificateholder, the Trustee, and the Special
Servicer and the Master Servicer, an initial certification in a form
acceptable to the Depositor (the "Initial Certification") and thereafter
quarterly updates for such 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 and
each quarterly 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 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 makes 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 or any party hereto (or any other Person) finds any
document or documents constituting a part of a Mortgage Loan File not to have
been properly executed, or to be missing or fails to materially conform to the
information provided on the Mortgage Loan Schedule 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 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 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 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 released pursuant hereto and thereafter
such Mortgage Loan shall not be part of the Trust Fund and not subject to the
servicing terms hereof. It is understood and agreed that the obligation of the
Depositor to so cure or purchase any Mortgage Loan as to which a material
defect in or omission of a constituent document exists shall constitute the
sole remedy under this Agreement respecting such defect or omission available
to Certificateholders or the Trustee on behalf of the Certificateholders.
Section 2.03 Representations and Warranties of the Depositor, the
Master Servicer and the Special Servicer; Assignment of Rights.
(a) The Depositor hereby represents and warrants to and covenants
with the Trustee, the Master Servicer and the Special Servicer, as of the
Delivery Date, that:
(i) The Depositor is a corporation duly organized,
validly existing and in good standing under the laws
of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with
the terms of this Agreement by the Depositor, will
not violate the Depositor's charter or bylaws or
constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a
default) under, or result in the breach of, any
material agreement or other instrument to which it is
a party or which is applicable to it or any of its
assets.
(iii) The Depositor has the full power and authority to
enter into and consummate all transactions
contemplated by this Agreement, the execution,
delivery and performance of this Agreement by the
Depositor has been duly authorized, and the Depositor
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by the Trustee, the Master Servicer and
the Special Servicer, constitutes a valid, legal and
binding obligation of the Depositor, enforceable
against the Depositor in accordance with the terms
hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights
generally, and (B) general principles of equity,
regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its
execution and delivery of this Agreement and its
performance and compliance with the terms of this
Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state
or local governmental or regulatory authority, or any
of the provisions of any indenture, mortgage,
contract, instrument, or other document to which such
Depositor is a party or by which it is bound, or
result in the creation or imposition of any lien,
charge, or encumbrance upon any of its property
pursuant to the terms of any such indenture,
mortgage, contract, instrument, or other document
which violation, in the Depositor's good faith and
reasonable judgment, is likely to affect materially
and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval,
other than any such approvals as have been obtained,
and is not subject to any bulk transfer or similar
law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the
Depositor which, if determined adversely to the
Depositor, would prohibit the Depositor from entering
into this Agreement or, in the Depositor's good faith
reasonable judgment, is likely to materially and
adversely affect either the ability of the Depositor
to perform its obligations under this Agreement or
the financial condition of the Depositor.
(viii) At the time of the assignment of the Mortgage Loans
to the Trust Fund hereunder, the Depositor had good
title to and was the sole owner of, each Mortgage
Loan, free and clear of any pledge, lien, encumbrance
or security interest (other than the rights to
servicing and related compensation) and such
assignment validly transfers ownership of the
Mortgage Loans to the Trust Fund free and clear of
any pledge, lien, encumbrance or security interest.
(b) Each of the Master Servicer and the Special Servicer hereby
represents and warrants or covenants to the Trustee and the Depositor, as of
the Delivery Date, that:
(i) Due Organization and Authority.
(A) such Servicer has or shall obtain all licenses
necessary to carry on its business as now being conducted
and is or will become licensed, qualified and in good
standing in each state 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
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; and
(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.
(c) The Depositor, as assignee of the Mortgage Loan Seller under the
Mortgage Loan Purchase Agreement, hereby assigns to the Trustee for the
benefit of the Certificateholders all of its rights, title and interest (but
none of its obligations) under the Mortgage Loan Purchase Agreement, including
the Depositor's right to require the Mortgage Loan Seller to cure any material
breach of a representation or warranty by the Mortgage Loan Seller with
respect to each Mortgage Loan or repurchase such Mortgage Loan.
(d) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall (i) survive the execution and
delivery of this Agreement and (ii) not be diminished by any limitation in any
assignment, endorsement or allonge relating to any Mortgage Loan Document, and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by the
Depositor, the Master Servicer, the Special Servicer or the Trustee of any
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other parties,
the Directing Certificateholder and each Rating Agency.
Section 2.04 Repurchase of Mortgage Loans for Breaches of Representation
and Warranty.
(a) Within 90 days of the earlier of, the discovery by the Depositor
of, or receipt by the Depositor of written notice from the Master Servicer,
the Special Servicer, the Trustee or any Certificateholder, specifying in
reasonable detail the existence of a breach of any representation or warranty
of the Depositor set forth in Section 2.03(a), or of the Mortgage Loan Seller
under the Mortgage Loan Purchase Agreement, assigned to the Trustee pursuant
to Section 2.03(c) for the benefit of the Certificateholders, which materially
and adversely affects the value of any Mortgage Loan or the interest of any
Certificateholder therein, the Depositor shall at its option (i) (A) in all
material respects cure such breach or (B) purchase the affected Mortgage Loan
from the Trust Fund at the Purchase Price or (ii) cause the Mortgage Loan
Seller at its option (A) in all material respects to cure such breach or (B)
to purchase the affected Mortgage Loan from the Trust Fund at the Purchase
Price.
(b) The purchase of any Mortgage Loan by the Depositor or the
Mortgage Loan Seller pursuant to Section 2.04(a), shall be effected by
delivering the Purchase Price therefor to the Master Servicer for deposit in
the Collection Account. The Trustee, upon receipt of an Officers' Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Depositor, the Mortgage Loan Seller or
its designee, as applicable, the related Mortgage Loan File and shall execute
and deliver such instruments of transfer or assignment 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 Mortgage Loan
Seller or its designee, as applicable, any Mortgage Loan released pursuant
hereto. In connection with such repurchase, the Master Servicer, and the
Special Servicer, as applicable, shall release to the Depositor or the
Mortgage Loan Seller all documents and records maintained by such Servicer and
requested by the Depositor or the Mortgage Loan Seller; provided, that such
Servicer may retain copies of such documents and records at its own expense.
The Depositor shall be responsible for the payment of all reasonable expenses
of the Trustee and the Servicers incurred in connection with such repurchase,
including any reasonable expenses expended to evidence the occurrence of the
breach causing such obligation to repurchase to the extent not covered in the
definition of Purchase Price.
(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
under this Agreement, respecting any breach of the representations and
warranties contained in Section 2.03(a) of this Agreement or in the Mortgage
Loan Purchase Agreement.
(d) The Depositor shall cause the Mortgage Loan Seller to repurchase
any Cross Collateralized Loan that is cross-collateralized with any Mortgage
Loan repurchased pursuant to this Section 2.04.
(e) Without limiting the Trustee's duties under this Section 2.04 the
Trustee hereby irrevocably designates the Master Servicer (in the case of the
Mortgage Loans that are not Specially Serviced Mortgage Loans) and the Special
Servicer (in the case of Specially Serviced Mortgage Loans), for the benefit
of Certificateholders to enforce (at their respective options after notifying
the Trustee) any of the obligations of the Mortgage Loan Seller under Section
6 of the Mortgage Loan Purchase Agreement. Such enforcement including, without
limitation, the legal prosecution of claims, shall be carried out in such
form, to such extent and at such time as the Master Servicer or the Special
Servicer, as the case may be, shall determine are in the best interests of the
Certificateholders (taken as a collective whole). All out-of-pocket expenses
incurred by the Master Servicer and the Special Servicer in carrying out their
respective obligations pursuant to this Section 2.04(e) shall be a Servicing
Advance.
Section 2.05 Execution of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the Mortgage Loan Purchase Agreement to the extent set forth herein and,
concurrently with such assignment, has, at the direction of the Depositor,
executed and caused the Certificate Registrar to authenticate and deliver to
or upon the order of the Depositor, in exchange for the Mortgage Loans,
Certificates in authorized denominations evidencing beneficial ownership of
the entire Trust Fund.
ARTICLE III
GENERAL SERVICING AND ADMINISTRATION
Section 3.01 Access to Certain Documentation Regarding the Mortgage Loans
and This Agreement.
Upon reasonable advance written notice, each Servicer shall give the
Trustee, the other Servicer, the Rating Agencies, the Depositor and such
Person's agents or representatives, during normal business hours at such
Servicer's offices, reasonable access to all reports, information and
documentation relating to any Mortgage Loan, REO Property, this Agreement, and
the rights and obligations of the Certificateholders and any of the Servicers
hereunder (including the right to make copies or extracts therefrom 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 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 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 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.
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 copies of all binders or certificates evidencing
that the bond and policy described in clause (a) above are in full force and
effect. Each Servicer shall promptly report in writing to the Trustee and each
other Servicer any change in such coverage resulting in a failure to satisfy
the requirements of clause (a) above and all cases of embezzlement or fraud or
irregularities of operation if such events involve such Servicer and funds
relating to the Mortgage Loans. The total losses, regardless of whether claims
are filed with the applicable insurer or surety, shall be disclosed in such
reports together with the amount of such losses covered by insurance. If a
bond or insurance claim report is filed with any of such Servicer's bonding
companies or insurers, a copy of such report (which report may omit any
references to individuals suspected of embezzlement, fraud or irregularities
of operation) shall be promptly furnished to the Trustee and each other
Servicer.
Section 3.08 Indemnity.
(a) Each Servicer shall indemnify the Depositor, the 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
or any Servicer of a notice of any complaint or the commencement of any action
or proceeding with respect to which indemnification is being sought under
clause (a) or (b) above (each, an "Indemnified Party"), such Indemnified Party
shall notify each Servicer from which indemnification is sought pursuant to
clause (a) above and the Trustee if indemnification is sought from the Trust
Fund (each 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 (other than the Transferable Servicing Interest as set
forth in Section 4.12), and may make such arrangements for the compensation of
such successor therefrom as it and such successor shall agree; provided,
however, that the fees of the successor Servicer with respect to the Mortgage
Loans shall not be higher than the fees of the predecessor Servicer. In the
event that any Servicer's duties and responsibilities under this Agreement are
terminated pursuant to the aforementioned Sections, such Servicer shall
discharge such duties and responsibilities during the period from the date it
acquires knowledge of such termination until the effective date thereof (if
such dates are not the same) with the same degree of diligence and prudence
that it is obligated to exercise under this Agreement, and shall take no
action whatsoever that might impair or prejudice the rights or financial
condition of its successor, any other Servicer or the Trustee. The termination
of a Servicer's responsibilities and duties under this Agreement pursuant to
the aforementioned Sections (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 and the Trustee, an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities and obligations of the
Servicer it is succeeding, with like effect as if originally named as a party
to this Agreement. Any resignation or termination of a Servicer pursuant to
Section 3.06, Section 6.16, Section 10.01 or Section 12.01 hereof shall not
affect any rights or claims that the Trustee or any Servicer may have against
the Trust Fund, Trustee or another Servicer, in any case arising prior to any
such termination or resignation.
(c) Upon its termination or resignation, the terminated or resigning
Servicer shall immediately deliver to the successor the funds in any account
maintained by such Servicer pursuant to this Agreement (net of all unpaid
Servicing Fees 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 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, Class L, Class M and Class NR
Certificates and the Class X Components shall be designated as the "regular
interests" and the Class R-III Certificates shall be designated as the sole
class of "residual interest" in REMIC III. To the extent the affairs of the
Trust Fund are within their control, the Master Servicer and the Trustee shall
not permit the creation of any "interests" (within the meaning of Section 860G
of the Code) in REMIC I, REMIC II or REMIC III other than the REMIC I
Uncertificated Interests, the REMIC II Uncertificated Interests and the
Certificates.
(b) The Delivery Date is hereby designated as the "Startup Day" of
the REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the Class R-I Certificate is hereby designated, and
by the acceptance of the Class R-I Certificate agrees to act, as Tax Matters
Person for REMIC I. The Holder of the Class R-II Certificate is hereby
designated, and by the acceptance of the Class R-II Certificate agrees to act,
as Tax Matters Person for REMIC II. The Holder of the R-III Certificate is
hereby designated, and by acceptance of the Class R-III Certificate, agrees to
act, as Tax Matters Person for REMIC III.
(d) Each Tax Matters Person hereby irrevocably authorizes the Trustee
to be its attorney-in-fact for purposes of signing all Tax Returns. This grant
of power of attorney is coupled with an interest and is therefore properly
irrevocable.
(e) The Trustee shall prepare or cause to be prepared all of the Tax
Returns that it reasonably determines are required with respect to REMIC I,
REMIC II or REMIC III created hereunder and shall sign and file such Tax
Returns in a timely manner. The ordinary expenses of preparing such returns
shall be borne by the Trustee without any right of reimbursement therefor.
(f) The Trustee shall provide (i) to any Transferor of a Class R-I,
Class R-II or Class R-III Certificate such information as is necessary for the
application of any tax relating to the transfer of a Class R-I, Class R-II and
Class R-III Certificate to any Person who is not a Permitted Transferee, (ii)
to the Certificateholders such information or reports as are required by the
Code, the REMIC Provisions or State Tax Laws including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption) and (iii) to the Internal Revenue Service the name,
title, address and telephone number of the person who will serve as the
representative of each of REMIC I, REMIC II and REMIC III.
(g) The Trustee shall take such actions and shall cause each of REMIC
I, REMIC II and REMIC III created hereunder to take such actions as are
reasonably within the Trustee's control and the scope of its duties more
specifically set forth herein as shall be necessary to maintain the status
thereof as REMICs under the REMIC Provisions (and the Master Servicer shall
assist the Trustee, to the extent reasonably requested by the Trustee to do
so). None of the Master Servicer, the Special Servicer or the Trustee shall
knowingly or intentionally take any action, cause either of REMIC I, REMIC II
or REMIC III to take any action or fail to take (or fail to cause to be taken)
any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or
not taken, as the case may be, could (i) endanger the status of either REMIC
I, REMIC II or REMIC III as a REMIC or (ii) subject to Section 6.04, result in
the imposition of a tax under the REMIC Provisions upon either REMIC I, REMIC
II or REMIC III (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either
such event, an "Adverse REMIC Event") unless such party receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and such party determines that taking such
action is in the best interest of the Trust Fund and the Certificateholders,
at the expense of the Trust Fund, but in no event at the expense of such
party) to the effect that the contemplated action will not, with respect to
either REMIC I, REMIC II or REMIC III created hereunder, endanger such status
or, unless such party determines in its sole discretion to indemnify the Trust
Fund against such tax, result in the imposition of such a tax.
(h) In the event that any tax is imposed on "prohibited transactions"
of REMIC I, REMIC II or REMIC III created hereunder as defined in Section
860F(a)(2) of the Code, on "net income from foreclosure property" of REMIC I,
REMIC II or REMIC III as defined in Section 860G(c) of the Code, or any other
tax is imposed by the Code or any applicable provisions of state or local tax
laws, such tax shall be charged (i) to a Servicer, if such tax arises out of
or results from a breach by such Servicer of any of its obligations under this
Agreement, (ii) to the Trustee, if such tax arises out of or results from a
breach by the Trustee of any of its obligations under this Agreement (iii)
otherwise, against amounts on deposit in the Certificate Account and on the
Distribution Date(s) following such reimbursement the aggregate of such taxes
shall be allocated in reduction of the Interest Distribution Amount on each
Class entitled thereto in the same manner as if such taxes constituted a
Prepayment Interest Shortfall.
(i) The Trustee 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 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 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 August 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 Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for REMIC I, REMIC II and REMIC III.
(n) None of the Trustee, the Master Servicer or the Special Servicer
shall sell or dispose of any of the Mortgage Loans (except in connection with
(i) the default, imminent default or foreclosure of a Mortgage Loan, including
but not limited to, the acquisition or sale of a Mortgage Property acquired by
deed in lieu of foreclosure, (ii) the bankruptcy of REMIC I, REMIC II and
REMIC III, (iii) the termination of REMIC I, REMIC II and REMIC III pursuant
to Article XII 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
Trustee, within ten (10) days after the Delivery Date, and thereafter on an
ongoing basis, all information or data requested by the Trustee that the
Trustee reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including without limitation,
the price, yield, original issue discount, market discount or premium,
Prepayment Assumption and projected cash flow (based upon the Prepayment
Assumption) of the Certificates. In addition, the Master Servicer, the Special
Servicer and the Depositor shall provide on a timely basis to the Trustee or
its designee such information with respect to the Trust Fund as is in its
possession and reasonably requested by the Trustee to enable it to perform its
obligations under this Article. The Trustee shall be entitled to rely
conclusively upon all such information so provided to it without recalculation
or other investigation.
(p) The Trustee shall be entitled to the reimbursement of its
reasonable expenses incurred in the performance of its duties under this
Section 3.11 as may be agreed upon by the Trustee and the Depositor, provided
that the Trustee shall pay out of its own funds, without any right of
reimbursement, any and all ordinary expenses of the Trust Fund incurred in the
performance of its duties under this Article but shall be reimbursed, except
as otherwise expressly provided for herein by the Trust Fund for any of its
extraordinary expenses, including any taxes or tax-related payments, any
expenses involved in any tax examination, audit or proceeding, and the expense
of any tax-related Opinion of Counsel or other professional advice requested
by the Trustee for the benefit or protection of the Certificateholders.
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 may enter into subservicing agreements with one
or more subservicers (including subsidiaries or affiliates of the Master
Servicer or the Depositor) for the servicing and administration of the
Mortgage Loans. The Special Servicer may enter into subservicing agreements
with one or more subservicers (including subsidiaries or affiliates of the
Special Servicer or the Depositor) for the servicing and administration of the
Mortgage Loans; provided, however, that after the Delivery Date, the Special
Servicer shall not enter into a subservicing agreement with a new subservicer
unless either (a) Fitch shall have confirmed in writing to the Trustee 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 Certificateholders nor the
Depositor shall be deemed parties thereto and none of such Persons shall have
claims or rights (except as specified below), nor obligations, duties or
liabilities with respect to the subservicer; provided that the Trustee and the
Certificateholders may rely upon the representations and warranties of the
subservicer contained therein and each of the Trustee and the Depositor shall
be a third party beneficiary of the covenants and other provisions setting
forth obligations of the subservicer therein.
If the Trustee or any successor Servicer assumes the obligations of
the Master Servicer or the Special Servicer, as applicable, in accordance with
this Agreement, the Trustee or such successor Servicer may, at its option, (i)
terminate any subservicing agreement entered into by the Master Servicer or
Special Servicer without payment of a termination fee, or (ii) succeed to all
of the rights and obligations of the Master Servicer or Special Servicer under
any subservicing agreement, subject to the terms of the related subservicing
agreement. 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. Such Servicer shall notify the Trustee of an instrument
of satisfaction described above as soon as practicable.
Section 3.16 Additional Servicing Restrictions; Defeasance.
With respect to each Mortgage Loan that provides for defeasance, to
the extent permitted by the terms of such Mortgage Loan in connection with
effecting a defeasance, the Master Servicer shall require the related
Mortgagor to (i) deliver to the Trustee replacement collateral consisting of
U.S. government securities within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments under
the Mortgage Note when due ("Defeasance Collateral"), (ii) deliver a written
certification from an independent certified public accounting firm certifying
that the Defeasance Collateral is sufficient to make such payments, (iii)
designate a Single-Purpose Entity (which may be a subsidiary of the Depositor
or the Master Servicer established for the purpose of assuming all defeased
Mortgage Loans) to assume the Mortgage Loan and own the Defeasance Collateral
and (iv) provide an opinion of counsel that the Trustee has a perfected
security Interest In the Defeasance Collateral. All expenses of the defeasance
shall be charged to the Mortgagor or other responsible party to the extent
permitted by the terms of such Mortgage Loan.
To the extent not inconsistent with the Mortgage Loan Documents, no
Servicer shall allow a Mortgagor to defease a Mortgage Loan if as of such time
the outstanding principal balance of such Mortgage Loan or the aggregate
outstanding principal balance of such Mortgage Loan and each other related
outstanding Cross-Collateralized Mortgage Loan and each other outstanding
Mortgage Loan with a related Mortgagor would be one of the top ten Mortgage
Loans or Mortgage Loan groups, as applicable, by outstanding principal
balance, unless such Servicer shall have obtained written confirmation from
Fitch stating that upon such defeasance none of the then current rating or
ratings of all outstanding classes of the Certificates would be qualified (if
applicable), downgraded or withdrawn by Fitch as a result thereof. All costs
and expenses incurred pursuant to the prior sentence which are not required to
be paid by the related Mortgagor under the related Mortgage Loan Document
shall be a Servicing Advance.
Section 3.17 Interest Reserve Account.
(a) The Trustee shall establish and maintain the Interest Reserve
Account, which shall be an Eligible Account, in the name of the Trustee on
behalf of the Certificateholders in trust for the benefit of the
Certificateholders. The Interest Reserve Account shall be maintained as a
segregated account, separate and apart from trust funds for mortgage
pass-through certificates of other series administered by the Trustee and
other accounts of the Trustee. Funds in the Interest Reserve Account shall be
held uninvested.
(b) On each Master Remittance Date occurring in (i) January of each
calendar year that is not a leap year and (ii) February of each calendar year,
the Trustee shall calculate the Withheld Amount with respect to each Interest
Reserve Loan. On each such Master Remittance Date, the Trustee shall withdraw
from the Certificate Account and deposit in the Interest Reserve Account an
amount equal to the aggregate of the Withheld Amounts calculated in accordance
with the previous sentence. If the Trustee shall deposit in the Interest
Reserve Account any amount not required to be deposited therein, it may at any
time withdraw such amount from the Interest Reserve Account, any provision
herein to the contrary notwithstanding. On or prior to the Master Remittance
Date in March of each calendar year, the Trustee shall transfer to the
Certificate Account the aggregate of all Withheld Amounts on deposit in the
Interest Reserve Account.
ARTICLE IV
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 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 of the initiation), initiate any
action, suit or proceeding solely under the Trustee'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 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 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 not be
entitled to reimbursement for preparing a form of a power of attorney for each
state or 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 each 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). With respect to any Specially Serviced
Mortgage Loan, the Master Servicer shall request confirmation from the Special
Servicer as to the calculation of the related Prepayment Premium.
(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.
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 and the Special Servicer in writing
of the location and account number thereof and shall give the Trustee and the
Special Servicer written notice of any change of such location or account
number on or prior to the date of such change. Funds in the Collection Account
may be invested by, at the risk of, and for the benefit of, the Master
Servicer in Permitted Investments which shall not be sold or disposed of prior
to maturity. All such Permitted Investments shall be registered in the name of
the Master Servicer (in its capacity as such and for the benefit of the
Certificateholders) or its nominee. All income therefrom may be retained by
the Master Servicer as additional servicing compensation. In addition, the
Master Servicer shall deposit into such account out of its own funds an amount
representing any net losses realized on Permitted Investments with respect to
funds in such account no later than the first Master Remittance Date after the
occurrence of such loss.
(c) The Master Servicer shall deposit the following amounts, without
duplication, into the Collection Account:
(i) all payments on account of principal, including
amounts required to be deposited therein pursuant to
Section 2.04 or Section 4.06(c)(iii) hereof, and
Principal Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (including
default interest) on the Mortgage Loans (including
amounts required to be deposited therein pursuant to
Section 2.04 or Section 4.06(c)(iii) hereof);
(iii) all Liquidation Proceeds, Excess Condemnation
Proceeds and Excess Insurance Proceeds with respect
to the Mortgaged Properties;
(iv) out of such Master Servicer's own funds, an amount
representing net losses realized on Permitted
Investments with respect to funds in such Collection
Account pursuant to Section 4.02(b);
(v) any amounts representing Prepayment Premiums paid by
the Mortgagors;
(vi) any amounts received from the Special Servicer
pursuant to Sections 6.05(c) and 6.07;
(vii) any other amounts received from the Mortgagors with
respect to the Mortgage Loans; and
(viii) any amounts received from the Special Servicer
under Section 6.08 hereof;
but excluding (1) REO Proceeds (except as provided in clauses (vi) and (viii)
above), (2) amounts representing fees, default interest, late charge penalties
(to the extent not used to pay interest at the Advance Rate on Advances for
the related Mortgage Loan accrued during the Collection Period), 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 if received with respect to a Specially
Serviced Mortgage Loan) as additional servicing compensation hereunder
(provided that all NSF charges shall be payable to the Master Servicer) (3)
any amounts received from a Mortgagor to reimburse such Master Servicer, (or
the Special Servicer with respect to a Specially Serviced Mortgage Loan), 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 shall 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 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 from such
amounts and other amounts on deposit in the
Collection Account representing payments by any
Mortgagor of principal, 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(e), 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, to reimburse the Trustee and then to itself
and the Special Servicer, pro rata, pursuant to
Sections 4.01(c), 4.05 and 6.10, 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 4.01(c), 4.05(e) and 6.10, 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 related
Mortgage Loan during the same Collection Period;
(vii) on each Master Remittance Date, to reimburse the
Trustee, and then itself and the Special Servicer,
pro rata, 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(e) and 6.10, respectively, made with
respect to the Mortgage Loans;
(viii) on each Master Remittance Date, to pay itself any
reinvestment income on amounts on deposit in the
Collection Account to which it is entitled pursuant
to Section 4.02(b);
(ix) to pay expenses of the Trust Fund specifically
identified as such and authorized in this Agreement;
(x) on each Master Remittance Date, to make remittances
to the Trustee pursuant to Section 4.04 hereof; and
(xi) to clear and terminate the Collection Account upon
termination of this Agreement.
(b) The Master Servicer shall keep and maintain separate accounting,
on a Mortgage Loan-by-Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account and determining any shortfall or
overpayment of any amounts due from or on behalf of any Mortgagor or Mortgaged
Property.
Section 4.04 Remittances to the Trustee.
(a) On each Master Remittance Date, the Master Servicer shall (1)
withdraw from the Collection Account and remit to the Trustee for deposit into
the Certificate Account, by wire transfer of immediately available funds, all
amounts on deposit in the Collection Account as of the related Determination
Date minus:
(i) any permitted charges against or withdrawals from the
Collection Account pursuant to clauses (i) through
(x) of Section 4.03(a); and
(ii) any amounts on deposit in the Collection Account
representing a Monthly Payment due on a Due Date
following the Collection Period for such Master
Remittance Date net of any reduction in the aggregate
amount of P&I Advances for such Determination Date
pursuant to Section 4.05(a) (which amounts, other
than those representing Escrow Payments, shall be
remitted pursuant to this Agreement on the Master
Remittance Date immediately following the Collection
Period in which such Monthly Payment was due),
and (2) remit to the Trustee any P&I Advances required to be made on or prior
to such Master Remittance Date pursuant to Section 4.05(a). If the Trustee
fails to receive by 2:00 p.m., New York City time on the Master Remittance
Date any or all of the amounts required by this clause (a), the Trustee shall
immediately notify the Master Servicer of such failure.
(b) With respect to any Master Servicer remittance received by the
Trustee after the Master Remittance Date (including any P&I Advance), the
Master Servicer shall pay to the Trustee interest on such amount until paid at
the Advance Rate. Such interest shall be deposited into the Certificate
Account by the Master Servicer on the date such late payment is made and shall
cover the period commencing with the day following the Master Remittance Date
and ending with the Business Day on which such payment is made, both
inclusive. The payment by the Master Servicer of any such interest shall not
be deemed an extension of time for payment or a waiver of any Event of
Default.
(c) The Master Servicer shall provide to the Trustee for delivery to
any beneficial owner of a Certificate information requested thereby with
respect to the calculation of any Prepayment Premium on a prepaying Mortgage
Loan.
Section 4.05 Master Servicer Advances.
(a) To the extent that as of the Determination Date for any month,
the full amount of the Monthly Payment due in such month with respect to any
Mortgage Loan has not been received by the Master Servicer, the Master
Servicer shall remit to the Trustee on the Master Remittance Date, for deposit
into the Certificate Account, a P&I Advance in an amount equal to the excess
of such Monthly Payment net of any Escrow Payment component and net of an
amount corresponding to the 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 (or the
Senior Component Amount, with respect to the Suburban Lodge Loan) immediately
prior to such Distribution Date, net of the related Collateral Value
Adjustment, if any (reduced to not less than zero by the Subordinate Component
Amount immediately prior to such Distribution Date, with respect to the
Suburban Lodge Loan), and the denominator of which is equal to the Stated
Principal Balance of such Mortgage Loan immediately prior to such Distribution
Date. Notwithstanding the foregoing, any P&I Advance for the Suburban Lodge
Loan shall not exceed the portion of the related Monthly Payment due and
payable with respect to the Senior Component Distribution Amount. For purposes
of the immediately preceding sentence, the Monthly Payment due on the Maturity
Date for a Balloon Mortgage Loan will be the amount that would be due on such
day based on the full amortization schedule used to calculate the Monthly
Payments thereon prior to the Maturity Date. If the Master Servicer determines
that a P&I Advance is required, it shall on such Master Remittance Date remit
to the Trustee for deposit in the Certificate Account out of its own funds an
amount equal to the P&I Advance; provided, however, that the aggregate amount
of such P&I Advances for any Determination Date shall be reduced by any
amounts being held for future remittance 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 as a P&I Advance (or from receipts on Mortgage Loans
against which such P&I Advance was made) by deposit in such Collection Account
on or before any future Master Remittance Date to the extent that funds in
such Collection Account on such Master Remittance Date shall be less than
payments to the Trustee required to be made on such date. If the Master
Servicer determines with respect to any Mortgage Loan that a P&I Advance, if
made, would constitute a Nonrecoverable Advance or that it has made a
Nonrecoverable Advance, it shall deliver to the Trustee a Nonrecoverable
Advance Certificate.
(b) [RESERVED]
(c) 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 upon five Business
Days notice; provided that the Special Servicer shall only request the Master
Servicer to 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. The Master Servicer shall be
entitled to reimbursement for any unreimbursed Servicing Advance made pursuant
to the immediately preceding sentence pursuant to this Agreement.
(d) [RESERVED]
(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; provided, however, that neither the Master Servicer nor any other
party shall be entitled to interest accrued on the amount of any P&I Advance
with respect to any Mortgage Loan if the related Monthly Payment is received
by the Master Servicer on or prior to the Master Remittance Date immediately
following the Due Date for such Monthly Payment.
(f) 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, the Master Servicer shall deliver
to the Trustee a Nonrecoverable Advance Certificate.
(g) 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 and the Special Servicer
in writing of the location and account number of each subaccount in the Escrow
Account and shall give the Trustee and the Special Servicer written notice of
any change of such location or account number on or prior to the date of such
change. The Master Servicer shall deposit into the appropriate subaccount of
the related Escrow Account any Escrow Payments that it receives, including,
without limitation, (i) any Payment Reserve, Repair and Remediation Reserve,
Replacement Reserve or Tenant Improvement and Leasing Commissions Reserve
required to be deposited therein on the applicable closing date and as of each
Due Date for a Mortgage Loan and (ii) any related Insurance Proceeds or
Condemnation Proceeds. In addition, such Master Servicer shall deposit, on the
related Master Remittance Date, into such subaccount out of its own funds an
amount representing net losses realized on Permitted Investments with respect
to funds in such subaccount except to the extent such investments were made at
the direction of and for the benefit of the Mortgagor under the related
Mortgage Loan Documents 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, to reimburse the Master 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 Section
4.05(e);
(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 therefor with
interest thereon 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, the 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 paid 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) for the
Suburban Lodge Loan, the Master Servicer shall notify and provide a copy of
the materials upon which such recommendation was made to the Majority Class Q
Holder. 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 Trustee), 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,
or together with all other Mortgage Loans with the same or an affiliated
Mortgagor, 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 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 a copy
of such substitution or assumption agreement.
(f) Notwithstanding the foregoing or any other provision of this
Agreement, the Master Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any conveyance
by a Mortgagor of a Mortgaged Property or any assumption of a Mortgage Loan by
operation of Law that the Master Servicer in good faith determines it may be
restricted by Law from preventing. The Master Servicer shall deliver prompt
written notice to the Trustee of any such determination or assumption.
(g) The Master Servicer shall notify each Rating Agency if it shall
have actual knowledge that such assumption results in any Mortgagor, or any
affiliate or principal thereof, representing ownership Interest In more than
5% of the Mortgagors by outstanding principal balance of the Mortgage Loans.
Section 4.09 Review of Property Inspections, Operating Statements
and Rent Rolls.
(a) The Master Servicer shall inspect or cause to be inspected each
related Mortgaged Property and shall verify and deliver a copy of a Property
Inspection Report in substantially the form of Exhibit M hereto to the Trustee
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 Special Servicer shall be delivered by hard copy or electronic
means to the Master Servicer and the Directing Certificateholder 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 December 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 Directing Certificateholder and each Rating Agency upon request by
electronic means 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 30 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 and the Trustee.
(a) The Master Servicer shall prepare, or cause to be prepared, and
deliver to the Trustee (and the Special Servicer, if requested), in an
electronic format reasonably acceptable to the Trustee, consistent with
Accepted Master Servicing Practices and convertible to EDGAR format, not later
than (i) 12:00 noon New York City time on the second 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 second Business Day
immediately preceding each Distribution Date after January 1, 2001, all
remaining CMSA IRP Reports (except those not prepared by the Master Servicer);
provided, however, that, the supplemental reports (7) and (8) in the
definition of CMSA IRP shall be delivered on a quarterly basis. Each such
report shall be in respect of the related Remittance Period on a Mortgage
Loan-by-Mortgage Loan basis to the extent applicable.
(b) The Master Servicer shall, upon the Trustee's reasonable request,
provide such other customary information relating to the Mortgage Loans as is
necessary for the Certificateholders to prepare their federal, state and local
income tax returns.
(c) The Master Servicer shall prepare and distribute all information
statements relating to payments on the Mortgage Loans in accordance with all
applicable federal and state laws and regulations. Upon prior written request
of the Trustee, the Master Servicer shall prepare such other reports as may be
reasonably requested in writing by the Trustee or the Rating Agencies. The
Master Servicer shall be entitled to charge a reasonable fee reflecting the
internal and external costs to such Master Servicer of preparing any such
report and such fee shall be charged to the Person making such a request to
the Trustee (other than the Rating Agencies, in which case such expenses shall
be an expense of the Trust Fund and paid as a Servicing Advance).
(d) The Master Servicer shall notify the Depositor pursuant to this
Agreement of the occurrence of a Required Appraisal Date or a Collateral Value
Adjustment within five (5) Business Days of its knowledge of the occurrence of
any such event.
(e) The Master Servicer shall provide the reports and files through
electronic format or on its website (except for the Bond File and the
Collateral Summary File) listed in Exhibit H in the format and frequency set
forth in Exhibit H to the Directing Certificateholder and the Majority Class Q
Holder at the times indicated in Section 4.10(a). The Trustee shall provide
the Bond File and the Collateral Summary File listed in Exhibit H through
electronic format or on its website in the format and frequency set forth in
Exhibit H to the Directing Certificateholder.
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 Due 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, Midland may at its
option assign or pledge to any third party or retain for itself the
Transferable Servicing Interest; provided, however, that in the event of any
resignation or termination of Midland as Master Servicer hereunder, all or any
portion of the Transferable Servicing Interest may be reduced by the Trustee
to the extent reasonably necessary (in the sole discretion of the Trustee) for
the Trustee to obtain a qualified successor Master Servicer (which successor
may include the Trustee) that meets the requirements of Section 3.10 and who
requires market rate servicing compensation that accrues at a per annum rate
in excess of the Minimum Master Servicing Fee Rate. The Master Servicer shall
pay the Transferable Servicing Interest to the holder of the Transferable
Servicing Interest (i.e., Midland or any such third party) at such time and to
the extent the Master Servicer is entitled to receive payment of its Master
Servicing Fees hereunder, notwithstanding any resignation or termination of
Midland hereunder.
Section 4.13 Adjustment of Master Servicer's Compensation.
Notwithstanding anything set forth in this Agreement, the Master
Servicer's compensation for the period ending on a Distribution Date shall be
reduced (but not below zero) by an amount equal to the lesser of (a) any
excess of any Prepayment Interest Shortfall over the sum of any Prepayment
Interest Excess and any Prepayment Premiums available for such Distribution
Date and (b) the Master Servicing Fee for such Distribution Date calculated
using 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.
Section 4.14 Implementation of Operations and Maintenance Plans.
To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of the related Mortgage Loan
Documents, the Master Servicer shall use reasonable efforts to enforce any
such plans in accordance with the terms of the Mortgage Loan Documents.
Section 4.15 Dissemination of Information.
The Master Servicer may disseminate the information provided under
Section 7.03(a)
ARTICLE V
[RESERVED]
ARTICLE VI
SPECIAL SERVICING
Section 6.01 The Special Servicer.
The Special Servicer, as independent contract servicer, shall,
notwithstanding any other provisions hereof, service and administer the
Specially Serviced Mortgage Loans and REO Property on behalf of and in the
best interests of and for the benefit of the Certificateholders in accordance
with this Agreement and Accepted Special Servicing Practices. In the event
that a Mortgage Loan becomes a Specially Serviced Mortgage Loan, subject to
the provisions contained in this Article VI, the Master Servicer shall
continue to collect all Monthly Payments called for under the terms and
provisions of the Mortgage Loan in accordance with Section 4.02, except as
otherwise directed by the Special Servicer in writing.
Section 6.02 Transfer to Special Servicing.
(a) The Master Servicer shall notify the Trustee, the Depositor, the
Special Servicer, the Directing Certificateholder and, with respect to the
Suburban Lodge Loan, the Majority Class Q Holder as promptly as practicable by
telephone and in an electronic format reasonably acceptable to the Trustee
after it becomes aware of (i) any facts or circumstances that might result in
any Mortgage Loan becoming a Specially Serviced Mortgage Loan or (ii) the
occurrence of a Servicing Transfer Event. If applicable, such notification
shall include a discussion of all appropriate courses of action that might be
employed to prevent the Mortgage Loan in question from becoming a Specially
Serviced Mortgage Loan and shall, to the extent applicable, set forth the
information substantially in the form of Exhibit S hereto. The Master Servicer
shall provide to the Trustee, the Depositor, the Special Servicer, the
Directing Certificateholder and, with respect to the Suburban Lodge Loan, the
Majority Class Q Holder 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]. Upon
the occurrence of a Servicing Transfer Event with respect to the Suburban
Lodge Loan, the Master Servicer shall notify the Majority Class Q Holder
within two (2) Business Days of such occurrence.
(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) The Trustee shall notify the Special Servicer of the name and
address of each Directing Certificateholder within 10 days of its learning of
same. The Master Servicer shall notify the Directing Certificateholder of the
occurrence of such Servicing Transfer Event within two Business Days.
(b) Subject to Sections 6.03(c) and 6.14 below, Accepted Special
Servicing Practices and the other terms of this Agreement, including with
respect to the Suburban Lodge Loan, Section 6.18, 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, assumption,
extension, 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, assumption,
extension, waiver or amendment, the Special Servicer has determined in its
reasonable judgement that such modification, assumption, extension, waiver or
amendment is expected to increase the recovery value of the related Mortgage
Loan on a net present value basis. Notwithstanding the foregoing, the Special
Servicer shall not release, substitute, or add any Mortgaged Property, except
as otherwise provided in the related Mortgage Loan Documents, unless such
Special Servicer shall have obtained written confirmation from each Rating
Agency stating that upon such release, substitution or addition none of the
then-current rating or ratings of all outstanding classes of the Certificates
would be qualified (if applicable), downgraded or withdrawn by each Rating
Agency as a result thereof. The Special Servicer may not extend the scheduled
maturity date of any Specially Serviced Mortgage Loan to a date later than
three years prior to the Rated Final Distribution Date provided that if such
Mortgage is secured by a leasehold interest, the related scheduled maturity
date may not be extended to a date later than ten years prior to the
expiration of the related ground lease; and provided, further, that if such
Mortgage Loan is a Balloon Mortgage Loan, the related scheduled maturity date
may not be extended to a date later than the amortization term thereof absent
the related Balloon Payment. Notwithstanding the foregoing, no such extension
may be effected unless the Special Servicer shall deliver to the Trustee an
Officer's Certificate certifying that in the judgment of such Special Servicer
such extension is expected to increase the recovery value of the related
Mortgage Loan on a net present value basis; provided that such certificate
shall not represent any assurances that any such recovery will actually be
realized. The expenses incurred in connection with the preparation of certain
such instruments shall be reimbursed to the Special Servicer pursuant to
Section 3.15. The Special Servicer may from time to time request any powers of
attorney and other documents necessary or appropriate to enable the Special
Servicer to carry out its servicing and administrative duties hereunder. If it
shall make such request, the Special Servicer shall prepare for signature by
the Trustee, and the Trustee shall sign any such powers of attorney or other
documents necessary or appropriate to carry out such duties hereunder. In
addition to the duties and obligations set forth in this Article VI, 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, and Section 4.07
with respect to any REO Properties and, to the extent it receives a
certificate from a Master Servicer that any amount is due in connection with
maintaining any Insurance Policy pursuant to Section 4.07 with respect to any
such Specially Serviced Mortgage Loan, with respect to paying or collecting
any such amount. Any insurance required to be maintained by the Special
Servicer with respect to REO Properties pursuant to this Section 6.03 and
Section 4.07. shall be maintained with Qualified Insurers.
Except for a duty or obligation of the Master Servicer not assumed by
the Special Servicer pursuant to Section 6.02(d), the Master Servicer shall
not have any such duty or obligation with respect to a Mortgage Loan unless
and until such Mortgage Loan ceases to be a Specially Serviced Mortgage Loan.
(c) No later than thirty (30) days after a Servicing Transfer Date
for a Mortgage Loan, the Special Servicer shall deliver to the Trustee, the
Depositor, the Master Servicer, each Rating Agency, the Directing
Certificateholder and, with respect to the Suburban Lodge Loan, the Majority
Class Q Holder, a report (the "Asset Strategy Report") with respect to such
Mortgage Loan and the related Mortgaged Property. Such Asset Strategy Report
shall set forth the following information to the extent reasonably
determinable:
(i) summary of the status of such Specially Serviced
Mortgage Loan and any negotiations with the related
Mortgagor;
(ii) consideration of alternatives to the exercise of
remedies (such as forbearance relief, modification of
the terms and conditions of such Mortgage Loan,
disposition of the Specially Serviced Mortgage Loan
or the related Mortgaged Property and application of
the proceeds of such disposition to the outstanding
principal balance of such Mortgage Loan and interest
thereon, or abandonment of the related Mortgaged
Property);
(iii) a discussion of the probable time frames and
estimated amount of any related Servicing Advances
applicable to each of the alternatives referred to
above;
(iv) a discussion of the legal and environmental
considerations reasonably known to the Special
Servicer, consistent with the Accepted Special
Servicing Practices, that are applicable to the
exercise of remedies as aforesaid and to the
enforcement of any related guaranties or other
collateral for the related Mortgage Loan and a
recommendation as to whether outside legal counsel
should be retained;
(v) estimated budgets for any operating or capital funds
expected to be required for the related Mortgaged
Property;
(vi) the most current rent roll available for and any
strategy for the leasing or releasing of the related
Mortgaged Property;
(vii) the Special Servicer's analysis and recommendations
(which will include a discussion of alternative
courses of action and a comparison of the probable
benefits and detriments of each alternative course of
action) on how such Specially Serviced Mortgage Loan
might be returned to performing status and returned
to the Master Servicer for regular servicing under
Article IV hereof or otherwise realized upon; and
(viii) such other information as the Special Servicer
deems relevant in light of the Accepted Special
Servicing Practices.
If within ten (10) Business Days of receiving an Asset Strategy
Report, the Directing Certificateholder does not disapprove such Asset
Strategy Report in writing, the Special Servicer shall implement the
recommended action as outlined in such Asset Strategy Report; provided,
however, that any such action is not contrary to applicable Law, the terms of
the applicable Mortgage Loan Documents or Accepted Special Servicing
Practices. If the Directing Certificateholder disapproves such Asset Strategy
Report, the Special Servicer will revise such Asset Strategy Report and
deliver to the Trustee, each Directing Certificateholder, the Master Servicer
and each Rating Agency a new Asset Strategy Report as soon as practicable. The
Special Servicer shall revise such Asset Strategy Report as described above in
this Section 6.03(c) until the Directing Certificateholder shall fail to
disapprove such revised Asset Strategy Report in writing within ten (10)
Business Days of receiving such revised Asset Strategy Report; provided,
however, the Special Servicer shall implement the last submitted Asset
Strategy Report if 60 days have elapsed since the Directing
Certificateholder's receipt of the Asset Strategy Report. The Special Servicer
may, from time to time, modify any Asset Strategy Report it has previously
delivered and implement such report, provided such report shall have been
prepared, reviewed and not rejected pursuant to the terms of this Section.
Notwithstanding the foregoing, the Special Servicer (i) may, following the
occurrence of an extraordinary event with respect to the related Mortgaged
Property, take any action set forth in such Asset Strategy Report before the
expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interest of the Certificateholders and it has made a
reasonable effort to contact the Directing Certificateholder and (ii) in any
case, shall determine whether such disapproval is not in the best interest of
all the Certificateholders pursuant to Accepted Special Servicing Practices.
Upon making the determination set forth in clause (ii) above, the Special
Servicer shall either implement the Asset Strategy Report or notify the
Trustee of such rejection and deliver to the Trustee a proposed notice to
Certificateholders which shall include the Asset Strategy Report, and the
Trustee shall send such notice to all Certificateholders (or, to the extent
known to the Trustee, Certificate Owners). If the majority of such
Certificateholders (including Certificate Owners), as determined by
Certificate Balance, fail within five (5) days of the Trustee's sending such
notice to reject such Asset Strategy Report, the Special Servicer shall
implement the same. If the Asset Strategy Report is rejected by the
Certificateholders, the Special Servicer shall revise such Asset Strategy
Report as described above in this Section 6.03(c). The Trustee shall be
entitled to reimbursement from the Trust Fund for the reasonable expenses of
providing such notices.
(d) The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with Accepted Special Servicing Practices and the related Asset
Strategy Report. The Special Servicer shall not take any action inconsistent
with the related Asset Strategy Report unless required pursuant to this
Section 6.03 or Accepted Special Servicing Practices.
(e) Upon request of any Certificateholder (or any Certificate Owner,
if applicable, which shall have provided the Trustee with evidence
satisfactory to the Special Servicer and the Trustee of its Interest In a
Certificate pursuant to Section 11.04), or Rating Agency, the Trustee shall
mail, 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 or Class E Certificate, the
Trustee shall have obtained an acknowledgment in the form of Exhibit K 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
Trustee shall have obtained a certification and agreement from the recipient
in the form of Exhibit K 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.
Section 6.04 Management of REO Property.
(a) The Special Servicer, on behalf of the Trust Fund, shall sell any
REO Property not later then the end of the third calendar year following the
year of acquisition of such REO Property for purposes of Section 860G(a)(8) of
the Code, unless the Special Servicer obtains for the Trustee (which shall be
an expense of the Trust) an Opinion of Counsel, addressed to the Trustee, and
the Master Servicer, to the effect that the holding by the Trust Fund of such
REO Property subsequent to the 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 a written proposed plan regarding the
plan of operations, the estimated income (and character thereof) derived
therefrom, the estimated amount of taxes payable on such income and such other
information as is necessary to make a reasoned judgment as to whether the REO
Property will remain a foreclosure property and whether such plan is likely to
maximize the net after tax REO income to the Trust Fund. Within a reasonable
period of time after receipt of such proposed plan, the Trustee shall agree or
disagree with the related tax position. The Special Servicer shall avoid
subjecting the income from such Mortgaged Property to tax as either "net
income from foreclosure property" or a "prohibited transaction" within the
meaning of the REMIC Provisions (an "REO Tax") to the maximum extent possible.
Neither the Special Servicer nor the Trustee shall be liable to the
Certificateholders, the Trust Fund or the other parties to this Agreement or
each other for errors in judgment made in good faith in the exercise of their
discretion while performing their respective responsibilities under this
Section.
Section 6.05 Sale of REO Property and Specially Serviced Mortgage Loans.
Subject to terms of the related Asset Strategy Report to the extent
the conditions, procedures or requirements set forth therein are more
restrictive or exacting than those set forth below, each Special Servicer
agrees as follows:
(a) The Special Servicer may purchase any Defaulted Mortgage Loan or
any REO Property (in each case at the Purchase Price therefor). The Special
Servicer may also offer to sell to any Person any Defaulted Mortgage Loan or
any REO Property, if and when the Special Servicer determines, consistent with
Accepted Special Servicing Practices, that such a sale would be in the best
economic interests of the Trust Fund. The Special Servicer shall give the
Trustee and the Master Servicer not less than five Business Days' prior
written notice of the Purchase Price and its intention to (i) purchase any
Defaulted Mortgage Loan or REO Property at the Purchase Price therefor or (ii)
sell any Defaulted Mortgage Loan or REO Property, in which case the Special
Servicer shall accept the highest offer received from any Person for any
Defaulted Mortgage Loan or any REO Property in an amount at least equal to the
Purchase Price therefor. To the extent permitted by applicable law, and
subject to the servicing standard set forth in Section 6.01 hereof, the Master
Servicer, an Affiliate of the Master Servicer, the Special Servicer or an
Affiliate of the Special Servicer, or an employee of either of them may act as
broker in connection with the sale of any REO Property and may retain from the
proceeds of such sale a brokerage commission that does not exceed the
commission that would have been earned by an independent broker pursuant to a
brokerage agreement entered into at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the Special
Servicer to be a fair price for such Defaulted Mortgage Loan or REO Property,
if the highest bidder is a Person other than an Interested Person, or if such
price is determined to be such a price by the Trustee, if the highest bidder
is an Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates may
make an offer for or purchase any Defaulted Mortgage Loan or any REO Property
pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the Special
Servicer determines, in accordance with the servicing standard set forth in
Section 6.01, that rejection of such offer would be in the best interests of
the Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the servicing standard stated in
Section 6.01, that acceptance of such offer would be in the best interests of
the Certificateholders (for example, if the prospective buyer making the lower
offer is more likely to perform its obligations, or the terms offered by the
prospective buyer making the lower offer are more favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any Defaulted Mortgage Loan or any REO Property,
the Trustee and the Special Servicer may conclusively rely on the opinion of
an Independent appraiser or other Independent expert in real estate matters
retained by the Trustee at the expense of the Trust Fund. In determining
whether any offer constitutes a fair price for any Defaulted Mortgage Loan or
any REO Property, the Special Servicer or the Trustee (or, if applicable, such
appraiser) shall take into account, and any appraiser or other expert in real
estate matters shall be instructed to take into account, as applicable, among
other factors, the period and amount of any delinquency on the affected
Defaulted Mortgage Loan, the physical condition of the related Mortgaged
Property or such REO Property, the state of the local economy and the Trust
Fund's obligation to comply with REMIC Provisions.
(b) Subject to Accepted Special Servicing Practices, the Special
Servicer shall act on behalf of the Trust Fund in negotiating and taking any
other action necessary or appropriate in connection with the sale of any
Defaulted Mortgage Loan or REO Property, including the collection of all
amounts payable in connection therewith. Any sale of a Defaulted Mortgage Loan
or any REO Property shall be without recourse to, or representation or
warranty by, the Trustee, the Depositor, any Servicer, or the Trust Fund
(except that any contract of sale and assignment and conveyance documents may
contain customary warranties of title, so long as the only recourse for breach
thereof is to the Trust Fund) and, if consummated in accordance with the terms
of this Agreement, none of the Servicers, the Depositor nor the Trustee shall
have any liability to the Trust Fund or any Certificateholder with respect to
the purchase price therefor accepted by the Special Servicer or the Trustee.
(c) 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 and the Trustee in writing of the location and the account number of
the REO Account established by the Special Servicer for the Mortgage Loans and
shall give the Trustee and the Master Servicer written notice of any change of
such location or account number on or prior to the date of such change.
(c) Funds in an REO Account may be invested by, at the risk of, and
for the benefit of, the Special Servicer in Permitted Investments which shall
not be sold or disposed of prior to maturity. All such Permitted Investments
shall be registered in the name of the Special Servicer (in its capacity as
such and for the benefit of the Certificateholders) or its nominee. All income
therefrom may be retained by the Special Servicer as additional servicing
compensation. In addition, the Special Servicer shall deposit on each
Determination Date into such REO Account out of its own funds an amount
representing any net losses realized on the Permitted Investments with respect
to funds in such REO Account for such 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.
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 Directing Certificateholder, the Trustee
and, if requested, each Rating Agency in electronic format reasonably
acceptable to the Master Servicer 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 and reports needed to produce the CMSA IRP (excluding the
Loan Set-up File, the Watch List, 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 Directing Certificateholder 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 Trustee'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 Special 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 Directing
Certificateholder, the Trustee, a Rating Agency or the Depositor, the Special
Servicer shall prepare such other reasonable reports as may be requested in
writing thereby. The Special Servicer shall be entitled to charge a reasonable
fee reflecting the internal and external costs to the Special Servicer of
preparing such other reports and such fee shall be reimbursable to the Special
Servicer by the Person requesting such report (other than the Rating Agencies,
in which case such expenses shall be an expense of the Trust Fund and paid as
a Servicing Advance.)
Section 6.10 Special Servicer Advances.
The Special Servicer shall not be required to make any Servicing
Advances with respect to any Specially Serviced Mortgage Loan, REO Mortgage
Loan or REO Property. To the extent that the Special Servicer determines that
Servicing Advances will be required with respect to a Specially Serviced
Mortgage Loan, REO Mortgage Loan or REO Property, the Special Servicer shall
notify the Master Servicer within five (5) Business Days of the need for a
Servicing Advance (or, two (2) Business Days if the Special Servicer
determines that a Servicing Advance shall be required on an urgent or
emergency basis or, if the payment to be covered by such Servicing Advance is
required to be made before such two (2) Business Days, the Special Servicer
shall make such Advance itself). If the Special Servicer makes a Servicing
Advance in accordance with the preceding sentence, the same conditions and
restrictions applicable to Servicing Advances made by the Master Servicer
shall apply, and the Special Servicer shall be entitled to all of the rights
the Master Servicer has with respect to Servicing Advances it makes, including
but not limited to, interest thereon at the Advance Rate and repayment in
accordance with the terms hereof. The Special Servicer shall provide prompt
written notice to the Master Servicer that the Special Servicer has made any
such Servicing Advance, which notice shall also be included in any Specially
Serviced Mortgage Loan Report or the Loan Periodic Update File data files
provided to the Master Servicer. The Master Servicer's right of reimbursement
for any Servicing Advances, with interest thereon, shall be pro rata to the
Special Servicer's right of reimbursement for any Servicing Advances (with
interest thereon).
Section 6.11 Environmental Considerations.
(a) The Special Servicer shall not obtain title for the Trust Fund to
a Mortgaged Property as a result or in lieu of foreclosure or otherwise, nor
shall otherwise acquire possession of, or take other action with respect to,
any Mortgaged Property, if, as a result of any such action, the Trust Fund,
the Trustee, the Master Servicer or the Special Servicer would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of the Comprehensive
Environmental Responsibility Cleanup and Liability Act of 1980, as amended
from time to time, or any applicable comparable federal, state or local law,
or a "discharger" or "responsible party" thereunder, unless the Special
Servicer has also previously determined, in accordance with Accepted Special
Servicing Practices, based on a "Phase I", and, if applicable, a "Phase II",
environmental site assessment report prepared within the prior twelve months
by a person who regularly conducts environmental audits for purchasers of
commercial property with at least 5 years of experience and a regionally
recognized firm, as determined by such Special Servicer in a manner consistent
with Accepted Special Servicing Practices, that:
(i) such Mortgaged Property is in compliance with
applicable Environmental Laws or, if not, that taking
such actions as are necessary to bring the Mortgaged
Property in compliance therewith is reasonably likely
to produce a greater recovery on a net present value
basis, after taking into account any risks associated
therewith, than not taking such actions; and
(ii) there are no circumstances present on such Mortgaged
Property relating to the use, management, storage or
disposal of any Hazardous Materials for which
investigation, testing, monitoring, containment,
clean-up or remediation could be required under any
Environmental Law, or that, if any such Hazardous
Materials are present for which such action could be
required, taking such actions with respect to the
affected Mortgaged Property is reasonably likely to
produce a greater recovery on a net present value
basis, after taking into account any risks associated
therewith, than not taking such actions; and
if the Special Servicer has so determined based on satisfaction of the
criteria in clauses (i) and (ii) above that it would be in the best economic
interest of the Certificateholders to take any such actions, the Special
Servicer has notified the Trustee and the Master Servicer in writing of such
proposed action, which notice shall be included in the Asset Strategy Report
pursuant to Section 6.03(c). The cost of preparation of any environmental
assessment and the cost of any compliance, containment, clean-up or
remediation shall be deemed to be a Property Protection Expense and (subject
to any determination of non-recoverability) paid by the Master Servicer as a
Servicing Advance.
(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 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).
(d) The Special Servicer shall promptly notify the relevant insurance
company for any Specially Serviced Mortgage Loan that has an environmental
insurance policy if the Special Servicer determines that a claim should be
made on such policy. The Special Servicer shall use its best efforts in
pursuing such claim on behalf of the Trust Fund.
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 Directing
Certificateholder 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
be the product of the Basic Special Servicing Fee Rate and the Stated
Principal Balance of such Specially Serviced Mortgage Loan or REO Loan as of
the Due Date in the prior calendar month calculated for the same period
respecting which any related interest payment on each such Specially Serviced
Mortgage Loan is calculated. 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, and to the extent provided in Section 4.03.
(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. The Workout Fee shall be payable from, and shall be
calculated by application of the Workout Fee Rate to, each collection of
interest (other than Default Interest and Excess 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 (i) by the Special Servicer, a Monitoring Certificateholder, the
Master Servicer or the Depositor or (ii) pursuant to Section 12.01). 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) By the Required Appraisal Date for any Mortgage Loan (or such
longer period as the Special Servicer is (as certified thereby to the Trustee
in writing) diligently and in good faith proceeding to obtain such appraisal),
the Special Servicer shall use its best efforts consistent with Accepted
Special Servicing Practices to obtain an appraisal for the related Mortgaged
Property from an independent MAI appraiser (except if an appraisal has been
conducted within the 12 month period preceding such event). The cost of such
appraisal shall be paid by the Master Servicer as a Servicing Advance.
Notwithstanding the foregoing, the Directing Certificateholder shall have the
right, at any time within six months of the date of its receipt of any
appraisal of any Mortgaged Property required to be obtained pursuant to the
immediately preceding paragraph, to require that the Special Servicer obtain a
new appraisal of such Mortgaged Property in accordance with MAI standards from
a state certified appraiser chosen by the Special Servicer, the cost of which
shall be paid by the Monitoring Certificateholders without right of
reimbursement; provided, however, that the Special Servicer shall not be
required to obtain any such appraisal unless the Special Servicer shall have
received reasonable assurance of payment of the costs of such appraisal and of
any expenses related thereto. Upon receipt of the appraisal obtained pursuant
to the immediately preceding sentence, the Special Servicer shall redetermine
and report in writing to the Master Servicer, the Trustee and the Directing
Certificateholder and, with respect to the Suburban Lodge Loan, the Majority
Class Q Holder, the amount of the Collateral Value Adjustment with respect to
such Mortgage Loan, and such redetermined Collateral Value Adjustment shall
replace the prior Collateral Value Adjustment with respect to such Mortgage
Loan.
(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 or make an Appraisal Estimate 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 Master
Servicer any appraisal value obtained pursuant to clause (a) or (b) above and
the Master Servicer will adjust the amount of the Collateral Value Adjustment
in accordance therewith.
Section 6.16 Replacement Special Servicer.
(a) The Directing Certificateholder may at any time and without cause
terminate the Special Servicer and appoint a replacement (a "Replacement
Special Servicer") to perform such duties under substantially the same terms
and conditions as applicable to the Special Servicer. Such holder(s) shall
designate a replacement to so serve by the delivery to the Trustee of a
written notice stating such designation. The Trustee shall, promptly after
receiving any such notice, so notify the Rating Agencies. The designated
replacement shall become the Replacement Special Servicer as of the date the
Trustee shall have received: (i) written confirmation from each Rating Agency
stating that if the designated replacement were to serve as Special Servicer
under this Agreement, none of the then-current rating or ratings of all
outstanding classes of the Certificates would be qualified (if applicable),
downgraded or withdrawn as a result thereof; (ii) a written acceptance of all
obligations of the Replacement Special Servicer, executed by the designated
replacement; and (iii) an Opinion of Counsel to the effect that the
designation of such replacement to serve as Replacement Special Servicer is in
compliance with this Agreement, that the designated replacement will be bound
by the terms of this Agreement and that this Agreement will be enforceable
against such designated replacement in accordance with its terms. The Special
Servicer shall be deemed to have resigned from its duties simultaneously with
such designated replacement's becoming the Replacement Special Servicer under
this Agreement. Any Replacement Special Servicer may be similarly so replaced
by the Directing Certificateholder.
(b) Notwithstanding the replacement of a Special Servicer pursuant to
clause (a) above, the terminated Special Servicer shall be entitled to receive
the 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
amounts owing to it pursuant to Section 3.08 and Section 6.13(b), and all
other amounts accrued and owing to it under this Agreement prior to the
effective date of such resignation.
(d) The Directing Certificateholder shall be responsible for paying
any costs associated with such replacement, including reasonable costs of any
servicing transfer.
(e) The Majority Class Q Holders may at any time and without cause
terminate the Special Servicer and appoint a Replacement Special Servicer, in
each case solely with respect to the Suburban Lodge Loan. Such termination and
appointment shall be subject to clauses (a), (b) and (c) above. The Majority
Class Q Holders shall be responsible for paying any costs associated with such
replacement, including reasonable costs of any servicing transfer.
Section 6.17 Purchase of Defaulted Suburban Lodge Loan.
The Majority Class Q Holders may purchase the Suburban Lodge Loan if
it becomes a Defaulted Loan at the Purchase Price therefor. Such Holders shall
give the Trustee, the Master Servicer and the Special Servicer not less than
four Business Days' written notice of the Purchase Price and their intention
to purchase the Suburban Lodge Loan pursuant to this Section. The Special
Servicer shall take such action as shall be necessary to transfer the Suburban
Lodge Loan to the designated transferee, upon payment of the Purchase Price
and the expenses set forth in Section 6.16(e). The Majority Class Q Holders
shall be responsible for paying any other costs associated with such purchase.
Section 6.18 Operating Advisor for Suburban Lodge Loan.
(a) The Majority Class Q Holder shall have the right at any time to
appoint an Operating Advisor with respect to the Suburban Lodge Loan. The
Operating Advisor may be the Majority Class Q Holder, any Affiliate thereof or
an unrelated third party other than an Affiliate of the Mortgagor. The
Majority Class Q Holder or any successor or assign thereof shall have the
right in its sole discretion at any time and from time to time to remove and
replace any such Operating Advisor. Except as otherwise agreed with the
Majority Class Q Holder, no such Operating Advisor shall owe any fiduciary
duty to the Trustee, the Master Servicer, the Special Servicer or any
Certificateholder.
(b) Notwithstanding anything to the contrary contained herein (but
subject to Section 6.18(d)), so long as a Suburban Lodge Control Event has not
occurred and is not continuing, at all times when an Operating Advisor is
serving with respect to the Suburban Lodge Loan and such Mortgage Loan is a
Specially Serviced Mortgage Loan, the Directing Certificateholder shall not be
entitled to exercise any of the powers and rights of the Directing
Certificateholder in this Agreement with respect to the Suburban Lodge Loan
and the Special Servicer shall be required (A) to consult with the related
Operating Advisor with respect to proposals to take any significant action
with respect to the Suburban Lodge Loan and the related Mortgaged Property and
to consider alternative actions recommended by the Operating Advisor and (B)
prior to taking any of the following actions, to notify in writing the related
Operating Advisor of any proposal to take any of such actions (and to provide
such Operating Advisor with such information requested by such Operating
Advisor as may be necessary in the reasonable judgment of such Operating
Advisor in order make a judgment, the expense of providing such information
not to be an expense of the Trust Fund) and to receive the written approval of
such Operating Advisor (which approval may be withheld in its sole discretion)
with respect to:
(i) any modification of, or waiver with respect to the
Suburban Lodge Loan, that would result in the
extension of the Maturity Date thereof, a reduction
in the Mortgage Rate borne thereby or the Monthly
Payment or a deferral or forgiveness of interest on
or principal of such Mortgage Loan or a modification
or waiver of any other monetary term of such Mortgage
Loan relating to the timing or amount of any payment
of principal and interest (other than Default
Interest);
(ii) any foreclosure upon or comparable conversion (which
may include acquisition of an REO Property) of the
ownership of any Mortgaged Property securing the
Suburban Lodge Loan or any acquisition of the related
Mortgaged Property by deed-in-lieu of foreclosure;
(iii) any sale of the Suburban Lodge Loan or a related
Mortgaged Property;
(iv) any action to bring a related Mortgaged Property or
REO Property into compliance with applicable
environmental laws;
(v) any substitution or release of collateral for the
Suburban Lodge Loan (other than a substitution or
release permitted to be made by the terms of the
Suburban Lodge Loan) without the consent of the
mortgagee; provided that, in the event that the
related Operating Advisor fails to notify the Special
Servicer of its approval or disapproval of any such
proposed action within 10 Business Days of delivery
to such Operating Advisor by the Special Servicer of
written notice of such proposed action, such action
by the Special Servicer shall be deemed to have been
approved by such Operating Advisor;
(vi) any legal action to enforce the related Mortgage Loan
Documents; or
(vii) any waiver or release of a material claim right or
remedy with respect to the Suburban Lodge Loan.
(c) At any time during the continuance of a Suburban Lodge Control
Event (but not more often than once during any six-month period), the Majority
Class Q Holder may request that the Special Servicer obtain, at the expense of
the Majority Class Q Holder, an Appraisal of the related Mortgaged Property.
(d) Notwithstanding any direction to, or approval or disapproval of,
or right to give direction to or to approve or disapprove, an action of, the
Special Servicer by the related Operating Advisor, in no event shall the
Special Servicer take any action or refrain from taking any action which would
violate any law of any applicable jurisdiction, be inconsistent with the
Accepted Special Servicing Practices, violate the REMIC Provisions or violate
or be materially inconsistent with any other provisions of this Agreement. The
taking of, or refraining from taking, any action by the Special Servicer
contrary to the directions of, or in a manner disapproved by, the related
Operating Advisor shall not constitute an Event of Default so long as the
Special Servicer's taking, or refraining from taking, such action in
accordance with the direction of, or with the approval of, the Operating
Advisor would have violated any law of any applicable jurisdiction, would have
been inconsistent with the Accepted Special Servicing Practices would have
violated the REMIC Provisions or would have violated or been materially
inconsistent with any other provision of this Agreement.
(e) So long as the Suburban Lodge Control Event has not occurred and
is not continuing with respect to the Suburban Lodge Loan, at all times when
an Operating Advisor is serving with respect to the Suburban Lodge Loan, the
Master Servicer (but only with respect to items (ii) and (iii)) and the
related Special Servicer shall provide to the Operating Advisor (i) on or
prior to each Distribution Date while the Suburban Lodge Loan is a Specially
Serviced Mortgage Loan, a written report with respect to the status of such
Mortgage Loan, including the status of any event of default thereon, the
status of any foreclosure actions or other proceedings undertaken with respect
thereto, any proposed "workouts" with respect thereto and the status of any
negotiations with respect to such "workouts", an assessment of the likelihood
of additional events of default thereon, (ii) promptly following receipt of
actual knowledge thereof, notice of any event of default with respect to the
Suburban Lodge Loan and (iii) within five Business Days of receipt thereof, by
hard copy or electronic means, copies of any financial statements or other
reports with respect to the related Mortgagor or Mortgaged Property that were
delivered to the Master Servicer or Special Servicer, as the case may be,
pursuant to the terms of the related Mortgage Loan Documents. At all times,
within five Business Days of receipt thereof, the Special Servicer shall
provide to the Majority Class Q Holder by hard copy or electronic means,
copies of all correspondence with respect to the related Mortgagor or
Mortgaged Property that were delivered to the Special Servicer. Promptly
following receipt of notice of the appointment of any Operating Advisor, the
Trustee shall notify the Master Servicer and the Special Servicer in writing
of the identity and address of any Operating Advisor.
(f) In addition, with respect to any proposed action requiring
consultation with or approval of an Operating Advisor pursuant to Section
6.18(b), the Special Servicer shall prepare a summary of such proposed action
and an analysis of whether or not such action is reasonably likely to produce
a greater recovery on a present value basis than not taking such action,
setting forth the basis on which the Special Servicer made such determination.
(g) Any Operating Advisor, in such capacity, will have no liability
to 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. Each Certificateholder acknowledges and agrees, by its acceptance
of its Certificates, or an interest therein, that any Operating Advisor, in
such capacity, may have special relationships and interests that conflict with
those of Certificateholders, that any Operating Advisor, in such capacity, may
act solely in the interests of the Majority Class Q Holder, that any Operating
Advisor, in such capacity, does not have any duties to the Certificateholders,
that any Operating Advisor, in such capacity, may take actions that favor
interests of the Majority Class Q Holder over the interests of the
Certificateholders, and that any Operating Advisor, in such capacity, shall
have no liability whatsoever for having so acted, and no Certificateholder may
take any action whatsoever against any Operating Advisor, in such capacity, or
any director, officer, employee, agent or principal thereof for having so
acted.
ARTICLE VII
PAYMENTS TO CERTIFICATEHOLDERS
Section 7.01 Certificate Account; Remittances to the Trustee.
(a) The Trustee shall establish and maintain one or more accounts
(collectively, the "Certificate Account"), held in trust for the benefit of
the Certificateholders. The Certificate Account shall be an Eligible Account.
The Trustee shall deposit in the Certificate Account, when received or as
otherwise required hereunder, all amounts received from the Master Servicer
with respect to all Mortgage Loans pursuant to this Agreement and the amounts
from the Interest Reserve Account pursuant to Section 3.17. If the Trustee
shall deposit in the Certificate Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding.
Funds in the Certificate Account shall be held uninvested.
(b) On each Master Remittance Date, the Master Servicer shall
withdraw from the Collection Account and remit to the Trustee, by wire
transfer of immediately available funds to the Certificate Account, all
amounts on deposit in the Collection Account as of the close of business on
the Master Remittance Date required to be remitted to the Trustee pursuant to
Section 4.04.
Section 7.02 Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on
deposit in the Certificate Account (which shall remain uninvested) first to
payment to the Trustee of the Trustee Fee and all reimbursable expenses of the
Trustee, not previously paid or reimbursed pursuant to Section 11.08(a) or (b)
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 distributions of the Interest Distribution
Amount for such Distribution Date on the Class L
Certificates;
(xxiv) to distribution 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 is reduced to
zero) for such Distribution Date on the Class L
Certificates, until the Class Balance thereof is
reduced to zero;
(xxv) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class M
Certificates;
(xxvi) to distributions of the Principal Distribution
Amount (or the portion thereof to the Class L
Certificates in reduction of the Class Balance
thereof to zero) for such Distribution Date on the
Class M Certificates, until the Class Balance thereof
is reduced to zero;
(xxvii) to the distributions of the Interest Distribution
Amount for such Distribution Date to the Class NR
Certificates;
(xxviii) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class M 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;
(xxix) 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
(xxx) 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, Class L, Class M 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 Trustee based upon information
furnished to the Trustee by the Master Servicer and allocated pro rata among
the outstanding Certificates in such Class based on their respective
Percentage Interests. All such distributions with respect to each Class (other
than the final distribution with respect thereto) will be made on each
Distribution Date to the Certificateholders of the respective Class of record
at the close of business on the related Record Date and shall be made by wire
transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with
wiring instructions no less than five Business Days prior to the related
Record Date (or, in the case of the first Distribution Date, no later than the
Delivery Date), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
(c) Except as otherwise provided in Section 12.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Trustee shall,
promptly mail to each Holder on such date of such Class of Certificates and
each Rating Agency a notice to the effect that:
(i) the Trustee expects that the final distribution with
respect to such Class of Certificates will be made on
such Distribution Date but only upon presentation and
surrender of such Certificates at the office of the
Certificate Registrar therein specified, and
(ii) no interest shall accrue on such Certificates from
and after such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and
held in trust and credited to the account of the appropriate non-tendering
Holder or Holders. If any Certificates as to which notice has been given
pursuant to this Section 7.02(c) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order
to receive the final distribution with respect thereto. If within one year
after the second notice all such Certificates shall not have been surrendered
for cancellation, the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of
such funds. No interest shall accrue or be payable to any Certificateholder on
any amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 7.02(c). If, within two years after
the second notice, any such Certificates shall not have been surrendered for
cancellation, then Trustee shall pay over or continue to hold any amounts so
held by the Trustee in accordance with applicable escheatment law.
(d) On each Distribution Date, amounts on deposit in the Certificate
Account corresponding to collections on the Suburban Lodge Loan will be
distributed in the following order:
(i) to the Trustee pursuant to Section 7.02(a) up to an
amount equal to 1/12th of the Trustee Fee Rate times
the Stated Principal Balance of the Suburban Lodge
Loan on the related Distribution Date plus any
reimbursable expenses of the Trustee with respect to
the Suburban Lodge Loan;
(ii) to payment of the Senior Component Interest
Distribution Amount for such Distribution Date;
(iii) to payment of the Senior Component Principal
Distribution Amount in reduction of the Senior
Component Amount until the Senior Component Amount
has been reduced to zero;
(iv) to the distribution of the Interest Distribution
Amount for such Distribution Date on the Class Q
Certificates;
(v) to distributions to the Class Q Certificates in
reduction of the Class Balance thereof until reduced
to zero;
(vi) whether or not the Class Q Certificates are
outstanding, up to any amounts recovered with respect
to the Suburban Lodge Loan representing Realized
Losses on the Suburban Lodge previously allocated to
the Class Q Certificates to distributions to the most
recent Holder of the Class Q Certificates; and
(vii) to distributions to the Class R-I
Certificateholders, any remaining amount.
Section 7.03 Statements to Certificateholders.
(a) On each Distribution Date, the Trustee shall make available to
each Holder and to each Certificate Owner which shall have certified to the
Trustee that it is a Certificate Owner (or forward, in the case of each Holder
or Certificate Owner which shall have requested such report from the Trustee),
a statement as to the distributions made on such Distribution Date based
solely upon information included in the reports furnished to the Trustee by
the Master Servicer for such Distribution Date in accordance with the
provisions of this Agreement.
In addition, on each Distribution Date, the Trustee shall make
available to each Rating Agency and each Underwriter in an electronic format
each statement received prior to such Distribution Date prepared by the Master
Servicer pursuant to this Agreement.
On each Distribution Date, the Trustee shall forward or make
available to the Depositor, each Underwriter, the Mortgage Loan Seller, each
Rating Agency, and the Master Servicer a copy of the reports forwarded to the
Certificateholders on such Distribution Date and, if not otherwise set forth
in such reports a statement setting forth the amounts, if any, actually
distributed with respect to the Certificates on such Distribution Date. The
Trustee shall also forward or make available such reports to the Master
Servicer in an electronic format reasonably acceptable to the Master Servicer.
(b) The Trustee on behalf of the Depositor, shall furnish or cause to
be furnished, promptly upon the written request of any Holder of a Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class NR, Class Q, Class
R-I, Class R-II or Class R-III Certificate (or a Certificate Owner which shall
have certified to the Trustee that it is a Certificate Owner of any such
Class) reasonably current Rule 144A Information (as defined below) to such
Certificateholder or to a prospective transferee of such a Certificate (or
interests in such Certificate) designated by such Certificateholder, as the
case may be, in connection with the resale of such Certificate or such
interests by such Certificateholder pursuant to Rule 144A to the extent
received from the Master Servicer or the Special Servicer. "Rule 144A
Information" shall mean the information specified in Rule 144A(d)(4)(i) and
(ii) under the Securities Act of 1933, as amended. The Trustee shall advise
the Master Servicer or Special Servicer of any request by a Certificateholder
and shall consult with the Master Servicer or Special Servicer as to the
information to be supplied. Based upon such consultation and to the extent the
Trustee is not in possession of reasonably current Rule 144A Information on
the date of any such request, the Master Servicer and the Special Servicer
shall, upon request from the Trustee, promptly provide the Trustee with
reasonably current Rule 144A Information to the extent reasonably available.
The Trustee may place its disclaimer on any such Rule 144A Information to the
extent it is not the source of such information. The Trustee shall not 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 Trustee by another to the extent the information so furnished
accurately sets forth the information prepared or delivered.
(c) Each of the Trustee, the Master Servicer and the Special Servicer
shall deliver to the Directing Certificateholder copies of all reports,
information statements or notices prepared thereby or received thereby as
requested by and not previously provided to the Directing Certificateholder.
The Master Servicer may maintain an Internet website at "www.midlandls.com",
which may contain, subject to Section 6.03(g), the information and reports
required for the Master Servicer to produce herein. The Master Servicer may
require registration and the execution of an access agreement in connection
with providing access to its website.
(d) Upon ten days prior written notice, the Master Servicer (with
respect to the items in clauses (a), (b), (c), (d), (e), (f) and (h) below),
the Special Servicer (with respect to the items in clauses (d), (e), (f), (g)
and (h) below) and the Trustee (with respect to the items in clause (b) and
(i) below and to the extent any other items are in its possession) shall make
available at their respective offices (or by the Master Servicer, on its
website, or both) primarily responsible for administration of the Mortgage
Loans (or in the case of the Trustee, at its Corporate Trust Office, except
with respect to documents which constitute part of the Mortgage Files, which
will be maintained at its office in Massachusetts), during normal business
hours, or send to the requesting party, such party having been certified to
the Trustee or the Servicer, as applicable in accordance with (a) and (b) in
the following paragraph, as appropriate, at the expense of such requesting
party (unless otherwise provided in this Agreement), for review by any
Certificate Owner or Certificateholder or any person identified by a
Certificate Owner or Certificateholder or its designated agent to the Trustee,
the Master Servicer or the Special Servicer, as the case may be, as a
prospective transferee of any Certificate or interest therein, the Trustee,
the Rating Agencies, the Underwriters and anyone specified thereby and the
Depositor originals or copies of the following items: (a) this Agreement and
any amendments thereto, (b) all statements and reports delivered or made
available by such party to holders of the relevant Class of Certificates
pursuant to Section 7.03 since the Delivery Date and all reports, statements
and analyses delivered by the Master Servicer since the Delivery Date pursuant
to Section 3.12, (c) all Officers' Certificates delivered by the Master
Servicer or the Special Servicer since the Delivery Date pursuant to Section
3.15, (d) all accountants' reports delivered to the Master Servicer in respect
of itself or the Special Servicer since the Delivery Date as described in
Section 3.03, (e) the most recent property inspection report prepared by or on
behalf of the Master Servicer in respect of each Mortgaged Property and any
environmental site assessment report prepared pursuant to Section 6.11, (f)
the most recent Mortgaged Property annual operating statements and rent roll,
if any, collected by or on behalf of the Master Servicer, (g) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Special Servicer and the Asset Strategy Report prepared pursuant
to Section 6.03(c) and (h) any and all Officers' Certificates and other
evidence delivered by the Master Servicer or the Special Servicer, as the case
may be, to support its determination that any Advance was, or if made, would
be, a Nonrecoverable Advance pursuant to Section 4.05 including appraisals
affixed thereto. Copies of any and all of the foregoing items will be
available from the Master Servicer, the Special Servicer or the Trustee, as
the case may be, upon request and shall be provided to any of the Rating
Agencies at no cost pursuant to their reasonable requests.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 7.03, the
Trustee or the Master Servicer, as applicable, shall require: (a) in the case
of Certificate Owners, a confirmation executed by the requesting Person
substantially in the form of Exhibit N-1 hereto (or such other form as may be
reasonably acceptable to the Trustee or the Master Servicer, as applicable)
generally to the effect that such Person is a beneficial holder of Book-Entry
Certificates and, subject to the last sentence of this paragraph, will keep
such information confidential (except that such Certificate Owner may provide
such information to any other Person that holds or is contemplating the
purchase of any Certificate or interest therein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential); and (b) in the
case of a prospective purchaser of a Certificate or any interest therein,
confirmation executed by the requesting Person substantially in the form of
Exhibit N-2 hereto (or such other form as may be reasonably acceptable to the
Trustee or the Master Servicer, as applicable) generally to the effect that
such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and, subject to the last sentence of this
paragraph, will otherwise keep such information confidential. The Holders of
the Certificates, by their acceptance thereof, will be deemed to have agreed,
subject to the last sentence of this paragraph, to keep such information
confidential (except that any Holder may provide such information obtained by
it to any other Person that holds or is contemplating the purchase of any
Certificate or interest therein, provided that such other Person confirms in
writing to the Trustee and the Master Servicer, prior to receipt or review of
such information, such ownership interest or prospective ownership interest
and agrees to keep such information confidential). Notwithstanding the
foregoing, no Certificateholder, Certificate Owner or prospective
Certificateholder or Certificate Owner shall be obligated to keep confidential
any information received from the Trustee or the Master Servicer, as
applicable, pursuant to this Section 7.03 that has previously been made
available without a password via the Trustee's or the Master Servicer's, as
applicable, Internet Website or has previously been filed with the Securities
and Exchange Commission, and the Trustee or the Master Servicer, as
applicable, shall not require either of the certifications contemplated by the
second preceding sentence in connection with providing any information
pursuant to this Section 7.03 that has previously been made available without
a password via the Trustee's Internet Website or has previously been filed
with the Securities and Exchange Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC,
the Federal Reserve Board and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to
any records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law
or contract or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer,
as the case may be, designated by it.
The Trustee, the Master Servicer, the Special Servicer and the
Underwriters may require payment from the Certificateholder or Certificate
Owner of a sum sufficient to cover the reasonable costs and expenses of
providing any such information or access pursuant to this Section 7.03 to, or
at the request of, the Certificateholders or Certificate Owners or prospective
transferees, including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners requiring on site review in excess of
three Business Days, reasonable fees for employee time and for space.
In no event shall any party be required to furnish information
hereunder if to do so would violate provisions of the Mortgage Loan Documents.
(e) The Trustee is hereby authorized to furnish, to
Certificateholders and/or to the public any other information (such other
information, collectively, "Additional Information") with respect to the
Mortgage Loans, any Mortgaged Property or the Trust Fund as may be provided to
it by the Depositor, the Master Servicer or Special Servicer or gathered by it
in any investigation or other manner from time to time, provided that (A) any
such Additional Information shall only be furnished with the consent or at the
request of the Depositor, (B) the Trustee shall be entitled to indicate the
source of all information furnished by it and the Trustee may affix thereto
any disclaimer it deems appropriate in its sole discretion (including any
warnings as to the confidential nature and/or the uses of such information as
it may, in its sole discretion, determine appropriate), (C) the Trustee shall
be entitled (but not obligated) to require payment from each recipient of a
reasonable fee for, and its out-of-pocket expenses incurred in connection
with, the collection assembly, reproduction or delivery of any such Additional
Information and (D) the Trustee shall be entitled to distribute or make
available such information in accordance with such reasonable rules and
procedures as it may deem necessary or appropriate (which may include the
requirement that an agreement that provides such information shall be used
solely for purposes of evaluating the investment characteristics or valuation
of the Certificates be executed by the recipient, if and to the extent the
Trustee deems the same to be necessary or appropriate). With the written
approval of the Depositor, the Trustee may make certain information regarding
the Mortgage Loans available to Certificateholders in electronic format
through its Corporate Trust home page on the worldwide web located at
"http://corporatetrust.statestreet.com" or by such other means as the Trustee
may have in place from time to time. In furtherance of the foregoing, within
twenty days following the Delivery Date, the Depositor shall furnish to the
Master Servicer, the Special Servicer and the Trustee in electronic format
copies of this Pooling Agreement, which, with the written approval of the
Depositor, the Trustee may also make available through its Internet website.
Nothing herein shall be construed to impose upon the Trustee any obligation or
duty to furnish or distribute any Additional Information to any Person in any
instance, and the Trustee shall neither have any liability for furnishing nor
for refraining from furnishing Additional Information in any instance. The
Trustee shall be entitled (but not required) to require that any consent,
direction or request given to it pursuant to this clause (e) be made in
writing.
(f) The Trustee shall make available to all Certificateholders, Pool
Factor information for the immediately succeeding Distribution Date (but no
earlier than two (2) Business Days preceding such Distribution Date) through
the Trustee's Factor Lookup On the Web ("FLOW") system. Pool Factor
information will be available on FLOW for up to and including the four
previous Distribution Dates.
The Trustee shall provide access to the information available on the
monthly statement to Certificateholders prepared pursuant to the first
paragraph of Section 7.03(a) and all associated reporting information via its
Corporate Trust home page on the world wide web.
Section 7.04 Distribution of Reports to the Trustee and the Depositor;
Advances by the Master Servicer.
On or prior to 12:00 noon, 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 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 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 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 11:00 A.M. on the related Distribution Date, such portion of the
amount of such Advance as to which the Master Servicer shall have given notice
pursuant to the preceding sentence, the provisions of Section 10.01 shall
apply and the Trustee (a) may terminate all of the rights and obligations of
the Master Servicer under this Agreement in accordance with Section 10.01, (b)
may assume the rights and obligations of the Master Servicer hereunder in
accordance with Section 10.02, and (c) shall make such required Advance
(subject to its own determination of nonrecoverability) not later than noon,
New York City time, on such Distribution Date.
The Trustee shall deposit all funds it receives pursuant to this
Section 7.04 into the Certificate Account.
Section 7.05 Allocations of Realized Losses and Collateral
Value Adjustments.
All Realized Losses reported for any Distribution Date shall be
allocated by the Trustee as follows in reduction of the related Class Balance:
first, but only with respect to Realized Losses on the Suburban Lodge Loan, to
the Class Q Certificates, second, to the Class NR Certificates until the Class
Balance thereof has been reduced to zero; third, to the Class M Certificates
until the Class Balance thereof has been reduced to zero; fourth, to the Class
L Certificates until the Class Balance thereof has been reduced to zero;
fifth, to the Class K Certificates until the Class Balance thereof has been
reduced to zero; sixth, to the Class J Certificates until the Class Balance
thereof has been reduced to zero; seventh, to the Class H Certificates until
the Class Balance thereof has been reduced to zero; eighth, to the Class G
Certificates until the Class Balance thereof has been reduced to zero; ninth,
to the Class F Certificates until the Class Balance thereof has been reduced
to zero; tenth, to the Class E Certificates until the Class Balance thereof
has been reduced to zero; eleventh, to the Class D Certificates until the
Class Balance thereof has been reduced to zero; twelfth, to the Class C
Certificates until the Class Balance thereof has been reduced to zero;
thirteenth, 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.
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, Class L, Class M, Class
NR and Class Q 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, Class L, Class M 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
Class Q, Class R-I, Class R-II and Class R-III Certificates will be issued as
Definitive Certificates. 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 F, Class G, Class H,
Class J, Class K, Class L, Class M 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 Certificate Registrar
and 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 F, Class G, Class H,
Class J, Class K, Class L, Class M 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 Certificate
Registrar and 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 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 F, Class G,
Class H, Class J, Class K, Class L, Class M 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 Delivery 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.
If the Certificate Registrar and the Trustee are not the same, the
Certificate Registrar shall notify the Trustee upon the occurrence of the
foregoing.
Section 8.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register
in which, subject to such reasonable regulations as the Certificate Registrar
may prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. The Trustee is hereby initially appointed (and hereby agrees to act)
as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Certificate
Registrar may appoint, by a written instrument delivered to the Trustee, any
other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided
that the predecessor Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment. The Master
Servicer shall have the right to inspect the Certificate Register or to obtain
a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in
the Certificate Register.
(b) No transfer of any Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class NR, Class Q, 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 or the Certificate Registrar in their respective capacities as such).
None of the Depositor, the Trustee, or the Certificate Registrar is obligated
to register or qualify the Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class NR, Class Q, Class R-I, Class R-II and Class R-III
Certificates under the 1933 Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer of
any Class F, Class G, Class H, Class J, Class K, Class NR, Class Q, 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 L, Class M, Class NR, Class Q,
Class R-I, Class R-II or Class R-III Certificateholder desiring to effect such
a transfer shall, and does hereby agree to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
(c) 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 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,
or such other Opinions of Counsel, officers' certificates, representations or
agreements as may be required by and in form and substance satisfactory to the
Depositor and the Trustee. Except as provided in Section 8.02(d), in the
absence of its having received the certification and Opinion of Counsel or
other documents contemplated by the preceding sentence, the Certificate
Registrar shall require the prospective transferee of any Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class NR, Class Q, Class R-I, Class R-II or Class R-III Certificate to
certify (or in the case of a Book-Entry Certificate, the holder shall deem 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, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class NR 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. Unless an opinion of counsel
described in (iii) is delivered, 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 or Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, or Class NR Certificate.
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 an Officer's
Certificate from the Depositor stating that a prohibited transaction class
exemption has been published that provides exemptive relief for the transfer
of such Certificates that is substantially similar to the relief available
under PTCE 90-23 for the Class A1, Class A2 and Class X Certificates, subject
to compliance with Section 8.02(e). If such certification is delivered to the
Trustee, the Trustee, the Depositor and the Servicers are authorized to take
any action reasonably necessary to give effect to the provisions of the new or
amended prohibited transaction class exemption, including, but not limited to,
removing the restrictive legend from the applicable Certificates and amending
any transfer certificates attached hereto and required to be delivered with
the transfer of any Cedrtificate.
(e) No transfer of a Class A1, Class A2 or Class X Certificate (or of
a Class B, Class C, Class D, Class E or Class F Certificate, if the Depositor
provides the Certification specified in Section 8.02(d) 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
(or such lower rating category as the Depositor, shall designate in the
Officer's Certificate set forth in the second paragraph of Section 8.02(d)) 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 (or a Class B,
Class C, Class D, Class E or Class F Certificate that has been determined to
be covered by this Section 8.02(e)) 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 Trustee by the Certificate Registrar.
The Certificate Registrar shall hold such cancelled Certificates in accordance
with its standard procedures.
Section 8.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate, and (ii) there is
delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence
of ownership in the Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 8.04 Persons Deemed Owners.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
7.02 and for all other purposes whatsoever, and neither the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Certificate Registrar
nor any agent of any of them shall be affected by notice to the contrary.
ARTICLE IX
THE DEPOSITOR
Section 9.01 Liability of the Depositor.
The Depositor shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Depositor herein.
Section 9.02 Merger, Consolidation or Conversion of the Depositor.
Subject to the following paragraph, the Depositor will keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
The Depositor may be merged or consolidated with or into any Person,
or transfer all or substantially all of its assets to any Person, in which
case any Person resulting from any merger or consolidation to which the
Depositor, shall be a party, or any Person succeeding to the business of the
Depositor, shall be the successor of the Depositor hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 9.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees
or agents shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor or any such Person against any breach of warranties or
representations made herein, or against any liability which would otherwise be
imposed by reason of misfeasance, bad faith or negligence in the performance
of duties. The Depositor and any director, officer, employee or agent thereof
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person 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 Trustee for deposit
into the Certificate Account any amount required to
be advanced or remitted under the terms of this
Agreement; with respect to the Special Servicer,
failure to 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 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, or, in the
case of the Special Servicer, the Master Servicer or
to such Servicer (with a copy to the Depositor, the
Trustee, and, in the case of the Special Servicer,
the Master Servicer) by the Holders of Certificates
entitled to at least 25% of the Voting Rights of any
Class affected thereby; or
(v) any breach of the representations and warranties
contained in Section 2.03(b) which materially and
adversely affects the interests of any Class of
Certificateholders and which continues unremedied for
a period of 30 days after the date on which notice of
such breach, requiring the same to be remedied, shall
have been given to such Servicer by the Depositor,
the Trustee or, in the case of the Special Servicer,
the Master Servicer, or to such Servicer (with a copy
to the Depositor, the Trustee, and, in the case of
the Special Servicer, the Master Servicer) by the
Holders of Certificates entitled to at least 25% of
the Voting Rights of any Class affected thereby; or
(vi) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of
a conservator or receiver or liquidator in any
insolvency, bankruptcy, readjustment of debt,
marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against such
Servicer and such decree or order shall have remained
in force undischarged, 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 to such Servicer 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 may 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 (other than the Transferable Servicing Interest
as set forth in Section 4.12). 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
Section 11.01 Duties of the Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee contained in this
Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement, if applicable. If
any such instrument is found not to conform to the requirements of this
Agreement if applicable in a material manner, the Trustee shall take such
action as it deems appropriate to have the instrument corrected. The Trustee
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer, and
accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and
after the curing of all such Events of Default which
may have occurred, the duties and obligations of the
Trustee shall be determined solely by the express
provisions of this Agreement. The Trustee shall not
be liable except for the performance of such duties
and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall
be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to
the requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of
judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it
in good faith in accordance with the direction of
Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and
place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this
Agreement.
(d) The Trust Fund hereby waives any and all rights to receive Excess
Interest at an Excess Rate exceeding 200 basis points (and all interest on
such Excess Interest). 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 Mortgagor in respect of
an ARD Loan notice in writing to the effect that the Trust Fund has waived 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, if the waiver by the Trust Fund is deemed
not effective, may not waive any right to receive Excess Interest In respect
of any ARD Loan if the related Mortgagor 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 Mortgagor shall be an intended third-party
beneficiary of the provisions of this paragraph.
Section 11.02 Monitoring Certificateholders and Directing
Certificateholder.
(a) Each Monitoring Certificateholder is hereby deemed to have agreed
by virtue of its purchase of a Certificate to provide its name and address to
the Trustee and to notify the Trustee of the transfer of any Certificate of a
Monitoring Class, the selection of a Directing Certificateholder or the
resignation or removal thereof. The Directing Certificateholder is hereby
deemed to have agreed by virtue of its purchase of a Certificate to notify the
Trustee when such Certificateholder is appointed Directing Certificateholder
and when it is removed or resigns. To the extent there is only one Monitoring
Certificateholder and it is also the Special Servicer, it shall be the
Directing Certificateholder.
(b) Within thirty (30) days of the Delivery Date, the Trustee shall
notify the Monitoring Certificateholders that they may select a Directing
Certificateholder for purposes of Sections 6.03 and 6.11 of this Agreement.
Such notice shall set forth the process established by the Trustee in order to
select a Directing Certificateholder.
(c) A "Monitoring Class" as of any time of determination shall be the
following Class or Classes of Certificates:
(i) if the Class outstanding with the most subordinate
Interest In the Trust Fund represents at least 2.0%
by Class Balance 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 2.0% by Class Balance of all the
Certificates; provided, however, that the Class Q
Certificates shall not be a Monitoring Class.
(d) Once a Directing Certificateholder has been selected pursuant to
clause (b) above, each of the Master Servicer, the Special Servicer, the
Depositor, the Trustee and each other Certificateholder (or Certificate Owner,
if applicable) shall be entitled to rely on such selection unless a majority
of the Monitoring Certificateholders, by Certificate Balance, or such
Directing Certificateholder shall have notified the Trustee and each other
Monitoring Certificateholder, in writing, of the resignation of such Directing
Certificateholder or the selection of a new Directing Certificateholder. Upon
the resignation of a Directing Certificateholder, the Trustee shall request
the Monitoring Certificateholders to select a new Directing Certificateholder.
(e) Within 30 days of the Delivery Date, the Trustee shall deliver to
the Special Servicer and the Master Servicer a list of each Monitoring
Certificateholder, the Directing Certificateholder and the Majority Class Q
Holder, 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 or
Majority Class Q Holder, the Trustee shall notify the Master Servicer and the
Special Servicer.
(f) If at any time a Book-Entry Certificate belongs to a Monitoring
Class, the Trustee shall notify the related Certificateholders (through the
Depository, unless the Trustee shall have been previously provided with the
name and address of such Certificateholder) of such event and shall request
that it be informed of any change in the identity of the related Certificate
Owner from time to time.
(g) Until it receives notice to the contrary each of the Servicers
and the Trustee shall be entitled to rely on the most recent notification with
respect to the identity of the Monitoring Certificateholders, the Directing
Certificateholder and the Majority Class Q Holder.
Section 11.03 Powers of Attorney.
The Trustee shall execute and deliver any powers of attorney prepared
and delivered to it by the Master Servicer pursuant to Section 4.01(b) or the
Special Servicer pursuant to Section 6.03(b).
Section 11.04 Certification by Certificate Owners.
To the extent that under the terms of this Agreement, it is necessary
to determine whether any Person is a Certificate Owner, the Trustee shall make
such determination based on a certification of such Person, in form acceptable
to the Trustee, which shall specify, in reasonable detail satisfactory to the
Trustee, the Class and Certificate Balance of the Certificate owned, the value
of such Person's Interest In such Certificate and any intermediaries through
which such Certificate is held. The Trustee shall make such determination at
the request of such Person or any Servicer. The Trustee shall be entitled to
rely conclusively on information it receives from the Depository, Depository
Participants, and indirect participating brokerage firms for which a
Depository Participant acts as agent, with respect to the identity of a
Certificate Owner.
Section 11.05 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 11.01:
(a) The Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(c) The Trustee shall not 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,
as applicable, reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby; the Trustee shall
not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement, and to
use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
(d) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default which may have occurred,
the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of Certificates
entitled to at least 25% of the Voting Rights; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability as a condition
to taking any such action. The reasonable expense of every such reasonable
examination shall be paid by the Master Servicer or, if paid by the Trustee,
shall be repaid by the Master Servicer upon demand;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, provided, however, that the Trustee shall remain liable for the
performance of all of its duties hereunder;
(g) The Trustee shall not be required to obtain a deficiency judgment
against any Mortgagor;
(h) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default hereunder unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Holders of the
Certificates and this Agreement;
(i) The Trustee shall not be responsible for any act or omission of
the Certificate Registrar (unless the Trustee, an Affiliate of the Trustee, as
applicable, is acting as Certificate Registrar), the Master Servicer, the
Special Servicer or the Depositor;
(j) Other than as expressly provided herein, the Trustee shall not be
required to monitor the activities of any Servicer and shall not be
responsible for the actions or omissions of any such Servicer.
Section 11.06 The Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than the
Certificate of Authentication, shall be taken as the statements of the
Depositor, the Master Servicer or the Special Servicer, as the case may be,
and the Trustee does not assume any responsibility for their correctness. The
Trustee does not make 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. The
Trustee shall not be accountable for the use or application by the Depositor
of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust Fund, or any
funds deposited in or withdrawn from the Certificate Account or any other
account by or on behalf of the Depositor, the Master Servicer or the Special
Servicer. The Trustee shall not be responsible for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Depositor, the Master Servicer or the
Special Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
Section 11.07 Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Certificates with the same rights it would have if it were
not Trustee, respectively.
Section 11.08 Fees and Expenses of Trustee; Indemnification of Trustee.
(a) The Trustee shall be entitled to pay itself as reasonable
compensation from amounts remitted to the Certificate Account (which shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust) for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties of the Trustee hereunder on each Distribution Date in an aggregate
amount equal to 0.0027% per annum (the "Trustee Fee Rate"), calculated on the
same basis as interest on the Certificates, minus the amount payable pursuant
to Section 7.02(d)(i), from which an amount equal to the Trustee Fee, payable
at the Trustee Fee Rate shall be paid to the Trustee.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to indemnification out of the Certificate Account
from time to time for any loss, liability or expense (including without
limitation costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement) incurred in
connection with any act or omission on the part of the Trustee with respect to
this Agreement or the Certificates (other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence of the
Trustee in the performance of duties hereunder, or as may arise from a breach
of any representation or warranty of the Trustee set forth herein or from any
failure of the Trustee to perform its obligations set forth in Section 11.15
provided, however, if the Trustee becomes Master Servicer, the Trustee acting
as Master Servicer shall not be entitled to indemnification under 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, shall have given the Master Servicer,
the Depositor, the Holders and, if in respect to a
Specially Serviced Mortgage Loan, the Special
Servicer, written notice thereof promptly after the
Trustee shall have knowledge thereof;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with, 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 entered
into without the prior consent of 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.
Section 11.09 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of any state or the
United States of America or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or
state authority. If such association or corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such association or corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. The long-term debt obligations
of the Trustee (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 shall cease to
be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in
Section 11.10. The corporation or association serving as Trustee may have
normal banking and trust relationships with the Depositor and its Affiliates,
the Master Servicer and its Affiliates or the Special Servicer and its
Affiliates.
Section 11.10 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders. Upon
receiving such notice of resignation from the Trustee, the Master Servicer
shall promptly appoint a successor trustee. 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. A copy of such instrument shall be delivered to the Trustee
and the Certificateholders, the Depositor and the Special Servicer by the
Master Servicer. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.09 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Master Servicer may remove the Trustee
and appoint a successor trustee acceptable to the Depositor by written
instrument, in duplicate, which instrument shall be delivered to the Trustee
so removed and to the successor trustee. A copy of such instrument shall be
delivered to the Trustee 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 and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. A copy
of such instrument shall be delivered to the remaining Certificateholders and
the Special Servicer by the Master Servicer. If the termination pursuant to
this Section 11.10(c) is without cause, the Certificateholders who voted to
terminate the Trustee shall pay the expenses associated with such termination.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 11.11.
Section 11.11 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 11.10
shall execute, acknowledge and deliver to the Master Servicer and to its
predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The predecessor trustee shall deliver to
the successor trustee all Mortgage Loan Files and related documents and
statements held by it hereunder (other than any Mortgage Loan Files at the
time held by a Custodian, which shall become the agent of any successor
trustee hereunder), and the Master Servicer and the predecessor trustee shall
execute and deliver such instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations, and to
enable the successor trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 11.09.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the successor trustee shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register.
Section 11.12 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such entity shall be eligible
under the provisions of Section 11.09 or 11.11, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section 11.13 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity,
such title to the Trust Fund, or any part thereof, and, subject to the other
provisions of this Section 11.13, such powers, duties, obligations, rights and
trusts as the Master Servicer and the Trustee may consider necessary or
desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, or in case an
Event of Default shall have occurred and be continuing, the Trustee alone
shall have the power to make such appointment. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 11.09 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be required under Section 11.11 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 11.13 all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as Trustee hereunder or as successor to the Master Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article XI. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 11.13 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 11.14 Appointment of Custodians.
(a) The Trustee may, with the consent of the Master Servicer, appoint
one or more Custodians to hold all or a portion of the Mortgage Loan Files as
agent for the Trustee. Subject to the other provisions of this Article XI, the
Trustee agrees to enforce the terms and provisions of Sections 2.01 and 2.02
hereof against the Custodian for the benefit of the Certificateholders. Each
Custodian shall be a depository institution subject to supervision by federal
or state authority, shall have combined capital and surplus of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage Loan File and shall not be the Depositor, the Person who
originated or sold to the Depositor the related Mortgage Loan or any Affiliate
thereof. Each Custodian shall be subject to the same obligations and standard
of care as are imposed on the initial Custodian hereunder in connection with
the retention of Mortgage Loan Files. Any custodian succeeding the initial
Custodian shall be required to have a blanket fidelity bond and an errors and
omissions insurance policy in amounts customary for custodians. The
appointment of one or more Custodians shall not relieve the Trustee from any
of its obligations hereunder, and the Trustee shall remain responsible for all
acts and omissions of any Custodian; 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, computer viruses, 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, as a Servicing Advance, 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 Master Servicer and
the Depositor, as of the Delivery Date, that:
(i) The Trustee is a Massachusetts trust company duly
organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts.
(ii) The execution and delivery of this Agreement by the
Trustee, and the performance and compliance with the
terms of this Agreement by the Trustee, will not
violate the Trustee's charter or bylaws or constitute
a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or
result in the breach of, any material agreement or
other instrument to which it is a party or which is
applicable to it or any of its assets; no license,
consent, approval, authorization or order of any
court or governmental agency is required for the
execution, delivery and performance by the Trustee of
this Agreement, except as have been previously
obtained.
(iii) The Trustee has the full power and authority to
enter into and consummate all transactions
contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this
Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by the Master Servicer, the Special
Servicer and the Depositor, constitutes a valid,
legal and binding obligation of the Trustee,
enforceable against the Trustee in accordance with
the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of
creditors' rights generally, and (B) general
principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity
or at law.
(v) The Trustee is not in violation of, and its execution
and delivery of this Agreement and its performance
and compliance with the terms of this Agreement will
not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local
governmental or regulatory authority, which
violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and
adversely either the ability of the Trustee to
perform its obligations under this Agreement or the
financial condition of the Trustee.
(vi) No litigation is pending or, to the best of the
Trustee's knowledge, threatened against the Trustee
which would prohibit the Trustee from entering into
this Agreement or, in the Trustee's good faith
reasonable judgment, is likely to materially and
adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the
financial condition of the Trustee.
Section 11.16 SEC Filings.
Based upon information furnished to it by the Master Servicer and the
Depositor, the Trustee will prepare and file with the Securities and Exchange
Commission on Forms 8-K and 10-K on behalf of the Trust Fund the reports
distributed to the Certificateholders pursuant to the first paragraph of
Section 7.03(a). No later than January 30, 2001, the Trustee shall file a Form
15 Notice of Suspension of Duty to File Reports pursuant to Sections 13 and
15(d) of the Securities Exchange Act of 1934, with respect to the
Certificates. The Trustee shall have no responsibility to file any items other
than those specified in this Section 11.16.
Section 11.17 Massachusetts Filings.
The Trustee shall make any filings required under Massachusetts
General Laws, Chapter 182, Sections 2 and 12, the costs of which, if any,
shall be reimbursed to it pursuant to Section 11.08.
ARTICLE XII
TERMINATION
Section 12.01 Termination Upon Repurchase or Liquidation of
All Mortgage Loans.
The respective obligations and responsibilities under this Agreement
of the Depositor, the Master Servicer, the Special Servicer and the Trustee
(other than the obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth and any indemnification provision)
shall terminate upon payment to the Certificateholders and the deposit of all
amounts held by or on behalf of the Master Servicer and the Trustee and
required hereunder to be so paid or deposited on the Distribution Date
following the earlier to occur of (i) the purchase 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 excess of (a)
the aggregate Cut-off Date Balance of the Mortgage Loans and (b) the initial
Certificate Balance of the Class Q Certificates. 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 release or 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.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall
distribute to each Certificateholder so presenting and surrendering its
Certificates (i) the amount otherwise distributable on such Distribution Date
in accordance with Section 7.02 in respect of the Certificates so presented
and surrendered, if not in connection with the Master Servicer's purchase of
all of the Mortgage Loans, or (ii) such Certificateholder's Percentage
Interest of that portion of the Available Distribution Amount for such
Distribution Date allocable to payments on the Class of Certificates so
presented and surrendered as described below, if in connection with the Master
Servicer's purchase of all of the Mortgage Loans. If the Trust Fund is to
terminate in connection with the Master Servicer's purchase of all of the
Mortgage Loans, the Available Distribution Amount for the final Distribution
Date shall be allocated in the order set forth in Section 7.02.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment.
(a) This Agreement may be amended from time to time by the Depositor,
the Master Servicer, the Special Servicer and the Trustee, without the consent
of any of the Certificateholders, (i) to cure any ambiguity, (ii) to correct
or supplement any provisions herein which may be inconsistent with any other
provisions herein, (iii) to make any other provisions with respect to matters
or questions arising hereunder which shall not be inconsistent with the
provisions hereof, (iv) to relax or eliminate any requirement hereunder
imposed by the REMIC Provisions if the REMIC Provisions are amended or
clarified such that any such requirement may be relaxed or eliminated; or (v)
if such amendment, as evidenced by an Opinion of Counsel delivered to the
Trustee, is reasonably necessary to comply with any requirements imposed by
the Code or any successor or amendatory statute or any temporary or final
regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any
proposed such action which, if made effective, would apply retroactively to
the Trust Fund at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to
the operation of the Trust Fund; provided that such action (except any
amendment described in clause (v) above) shall not, as evidenced by an Opinion
of Counsel delivered to the Trustee, adversely affect in any material respect
the interests of any Certificateholder; provided further, however, that an
Opinion of Counsel (other than as to REMIC tax matters) shall not be required
if each Rating Agency then rating the Certificates shall have confirmed in
writing that immediately following such amendment such Rating Agency will not
downgrade, qualify (if applicable) or withdraw its then-current rating on the
Certificates as a result of such amendment.
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates affected thereby entitled to at least
51% of the Voting Rights for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in (i) without the
consent of the Holders of all Certificates of such Class, or (iii) reduce the
aforesaid percentages of Certificates the Holders of which are required to
consent to any such amendment without the consent of the Holders of all
Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 13.01, Certificates registered in the name of the Depositor, the
Master Servicer, the Special Servicer or any Affiliate of the Depositor, the
Master Servicer or the Special Servicer shall be entitled to Voting Rights
with respect to matters described in clauses (i) and (ii) of this paragraph
affecting such Certificates.
(c) Notwithstanding any contrary provision of this Agreement, neither
the Trustee nor the Master Servicer shall consent to any amendment to this
Agreement unless the Trustee and the Master Servicer shall each have obtained
or been furnished with an Opinion of Counsel to the effect that such amendment
or the exercise of any power granted to the Master Servicer or the Trustee in
accordance with such amendment will not result in the imposition of a tax on
the Trust Fund pursuant to the REMIC Provisions or cause REMIC I, REMIC II or
REMIC III 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 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 Master Servicer,
Midland Loan Services, Inc., 210 West 10th Street, 6th Floor, Kansas City,
Missouri, Attention: Chief Executive Officer, telephone number: (816)
435-5000, telecopy number: (816) 435-2326; (iv) in the case of the Trustee,
State Street Bank and Trust Company, 2 Avenue de Lafayette, Boston,
Massachusetts 02111, Attention: Corporate Trust Service (CMBS)--J.P. Morgan
Commercial Mortgage Finance Corp., Series 2000-C10, telephone number: (617)
662-1323, telecopy number: (617) 662-1435; (v) in the case of the Rating
Agencies, (A) Fitch, 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 Trustee shall file continuation statements thereto
at such office, in each case within six months prior to the fifth anniversary
of the immediately preceding filing. The Depositor shall cooperate in a
reasonable manner with the Trustee in preparing and filing such continuation
statements. This Section 13.07 shall constitute notice to the Trustee pursuant
to any of the requirements of the New York Uniform Commercial Code.
Section 13.08 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of and be enforceable by each Servicer, the Trustee and the
respective successors and assigns thereof and shall inure to the benefit of
the Certificateholders.
(b) Except as provided in Section 3.04, this Agreement shall not be
assigned, pledged or hypothecated by any Servicer to a third party without the
prior written consent of the Trustee and subject to Section 3.06.
Section 13.09 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 13.10 Notices and Information to Rating Agencies.
(a) The Trustee shall use its best efforts promptly to provide notice
to the Rating Agencies with respect to each of the following of which it has
actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default;
(iii) the resignation or termination of the Master
Servicer, the Special Servicer or the Trustee;
(iv) the repurchase of Mortgage Loans pursuant to Section
2.04(a);
(v) any other information the Rating Agencies may
reasonably request consistent with the Trustee's
duties hereunder;
(vi) the final payment to any Class of Certificateholders;
(vii) any change in the location of the Certificate
Account; and
(viii) CMSA IRP.
(b) The Master Servicer shall use its best efforts promptly to
provide notice to the Rating Agencies with respect to any determination by the
Master Servicer that an Advance with respect to a Mortgage Loan constitutes
(or would, if made, constitute) a Nonrecoverable Advance under this Agreement.
(c) Each of the Master Servicer and the Special 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 in its possession available from
time to time with respect to any Mortgaged Property
or any Mortgagor,
(iv) Upon request, 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 Trustee
shall provide a list of each Certificateholder and, to the extent known to the
Trustee and solely based on the certification of Certificate Owners, each
Certificate Owner.
Section 13.12 Protection of Assets.
(a) Except for transactions and activities entered into in connection
with the transaction that is the subject of this Agreement, the Trust Fund is
not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell
assets; or
(3) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trust Fund or initiate any other
form of insolvency proceeding until after all distributions on the
Certificates have been made.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
J.P. MORGAN COMMERCIAL MORTGAGE
FINANCE CORP.,
Depositor
By: /s/ Clive Bull
---------------------------------
Name: Clive Bull
Title: Vice President
MIDLAND LOAN SERVICES, INC.
Master Servicer
By: /s/ Lawrence D. Ashley
--------------------------------
Name: Lawrence D. Ashley
-------------------------
Title: Senior Vice President
-------------------------
ORIX REAL ESTATE CAPITAL MARKETS,
LLC,
Special Servicer
By: /s/ Edgar L. Smith, II
----------------------------------
Name: Edgar L. Smith, II
Title: Chief Operating Officer
STATE STREET BANK AND TRUST
COMPANY,
Trustee
By: /s/ James H. Byrnes
----------------------------------
Name: James H. Byrnes
-------------------------
Title: Vice President
-------------------------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On the 4th day of October, 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/ Rachel Schlenker
----------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS)
On the 4th day of October, 2000 before me, a notary public in and
for said State, personally appeared Edgar L. Smith II known to me to be Chief
Operating Officer of ORIX Real Estate Capital Markets, LLC, the limited
liability company that executed the within instrument, and also known to me to
be the person who executed it on behalf of said limited liability company, and
acknowledged to me that such limited liability company executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Jerry Newman
----------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On the 4th day of October, 2000, before me, a notary public in and
for said State, personally appeared James Byrnes known to me to be a Vice
President of State Street Bank and Trust Company, the Massachusetts trust
company that executed the within instrument, and also known to me to be the
person who executed it on behalf of said Massachusetts trust company, and
acknowledged to me that such Massachusetts trust company executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above written.
/s/ Rachel Schlenker
----------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF MISSOURI )
) ss.:
COUNTY OF JACKSON )
On the 4th day of October, 2000 before me, a notary public in and
for said State, personally appeared Lawrence D. Ashley known to me to be Senior
Vice President of Midland Loan Services, Inc., the corporation that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A
FORM OF CERTIFICATE
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York Corporation ("DTC"), to the Trustee or
its agent for registration of transfer, exchange, or payment, and any
certificate is registered in the name of Cede & Co. or in such other name as
is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").]
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE DELIVERY DATE OF THIS CERTIFICATE IS __________, 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 and Class E Certificates only: No
transfer of a [Class B] [Class C] [Class D] [Class E] 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] Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan, unless the Trustee receives: (i)
a representation from the prospective transferee of such [Class B] [Class C]
[Class D] [Class E] Certificate, acceptable to and in form and substance
satisfactory to the Trustee, 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] 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] 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 that the purchase and holding of such [Class B] [Class C]
[Class D] [Class E] Certificate by a Plan, any person acting on behalf of a
Plan or using a Plan's assets will not result in the assets of the Trust Fund
being deemed to be "plan assets" and subject to the prohibited transaction
requirements of ERISA and the Code and will not subject the Trustee to any
obligation in addition to those undertaken in the Agreement. Such
representation as described above in (i) or (ii) shall be deemed to have been
made to the Trustee by the prospective transferee's acceptance of this [Class
B] [Class C] [Class D] [Class E] 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 F, Class G, Class H, Class J, Class K, Class L, Class M,
Class NR, Class Q, Class R-I, Class R-II and Class R-III Certificates only: No
[Class F] [Class G] [Class H] [Class J] [Class K] [Class L] [Class M] [Class
NR] [Class Q] [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 Trustee to be deemed a fiduciary of such Plan
or result in the imposition of an excise tax under Section 4975 of the Code.
In the absence of its having received the certification and Opinion of Counsel
contemplated by the preceding sentence, the Certificate Registrar shall
require the prospective transferee of any [Class F] [Class G] [Class H] [Class
J] [Class K] [Class L] [Class M][Class NR] [Class Q] [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.
<PAGE>
CLASS [ ] [PRIVATE][REGULATION S GLOBAL]
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership Interest In a Trust Fund consisting
primarily of a pool of fixed rate mortgage loans formed and sold by
J.P. MORGAN COMMERCIAL MORTGAGE FINANCE CORP., SERIES 2000-C10
[Original Class Balance][Initial Aggregate
Notional Amount]: $[_________]
Date of Pooling and Servicing Agreement: [Initial [Certificate
September 1, 2000 Balance][Notional Amount] of this
Class [ ] Certificate as of the
Delivery Date: $____________]
Cut-off Date: September 1, 2000
Delivery Date: October [o], 2000 [Percentage Interest: ____%]
First Distribution Date: October [o], 2000 Pass-Through Rate:
[__%][Variable]
Master Servicer: Midland Loan Services, Inc. Trustee: State Street Bank
and Trust Company
No. [__] [ISIN No.: US617059 _______]
CUSIP No.: 617059 [___]
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN J.P.
MORGAN COMMERCIAL MORTGAGE FINANCE CORP. OR ANY OF ITS AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, A PORTION OF THE INTEREST
ACCRUED IN RESPECT OF THIS CERTIFICATE FROM TIME TO TIME MAY NOT BE PAYABLE
CURRENTLY BUT MAY INSTEAD BE ADDED TO THE CERTIFICATE BALANCE HEREOF AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [_____________________________________] 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 (as such Certificate Balance may
be adjusted from time to time for transfers) by the initial Class Balance of
the Class [ ] Certificates) in that certain beneficial ownership interest
evidenced by all the Class[ ] Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as of September 1, 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), Midland Loan Services, Inc., as master
servicer (the "Master Servicer", which term includes any successor entity
under the Agreement) and special servicer (the "Special Servicer", which term
includes any successor entity under the Agreement), State Street Bank and
Trust Company, as trustee (the "Trustee", which term includes any successor
entity under the Agreement) a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class [ ] Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on a Class [ ]
Certificate will be made by the Trustee pursuant to the Agreement.
Any distribution to the Holder of this Certificate [in reduction of
the Certificate Balance hereof] is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such distribution is made upon this Certificate.
The Class [ ] Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class [ ] Certificates are exchangeable for new Class [ ] Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Certificates of the
same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
[No transfer of any Class [ ] Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration or qualification and in connection with the transfer or issuance
of a Definitive Certificate, then the Certificate Registrar shall require, in
order to assure compliance with such laws, receipt of: (a) if such transfer is
of a Class [ ] Certificate and is purportedly made in reliance on Rule 144A
under the 1933 Act, a certificate from the transferee desiring to effect such
transfer substantially in the form of Exhibit D-1 to the Agreement; (b) if
such transfer is of a Class [ ] Certificate and is purportedly made in
reliance on Regulation S under the 1933 Act, a certificate from the transferee
desiring to effect such transfer substantially in the form of Exhibit D-2 to
the Agreement; 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 or the Certificate Registrar in their respective
capacities as such), (ii) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form of Exhibit C to the Agreement
and (iii) a certificate from such Certificateholder's prospective transferee
substantially in the form of Exhibit E to the Agreement. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register
or qualify the Class [ ] Certificates under the 1933 Act or any other
securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class [ ] Certificate without
registration or qualification. Any Class [ ] Certificateholder desiring to
effect such a transfer shall, and does hereby agree to, indemnify the Trustee,
the Certificate Registrar and the Depositor against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.]
[No transfer of any Class R-[ ] Certificate shall be made to a
Non-United States Person. Notwithstanding anything to the contrary contained
herein, prior to registration of any transfer, sale or other disposition of a
Class R-[ ] Certificate, the Certificate Registrar shall have received (i) an
affidavit from the proposed transferee substantially in the form of Exhibit
F-1 to the Agreement, to the effect that, among other things, (A) such
transferee is not a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, (B) such transferee is
not a Non-United States Person, (C) such transferee has no present knowledge
or expectation that it will become insolvent or subject to a bankruptcy
proceeding for so long as the Class R-[ ] Certificate remains outstanding, and
(D) no purpose of such proposed transfer, sale or other disposition of the
Class R-[ ] Certificate is or will be to impede the assessment or collection
of any tax, and (ii) a certificate from the transferor substantially in the
form of Exhibit F-2 to the Agreement, to the effect that, among other things,
no purpose of such proposed transfer, sale or other disposition of the Class
R-[ ] Certificate is or will be to impede the assessment or collection of any
tax. Notwithstanding the registration in the Certificate Register of any
transfer, sale or other disposition of a Class R-[ ] Certificate to a
Disqualified Organization or an agent (including a broker, nominee or
middleman) of a Disqualified Organization or to a Non-United States Person,
such registration shall be deemed to be of no legal force or effect whatsoever
and such Person shall not be deemed to be a Certificateholder for any purpose
hereunder, including, but not limited to, the receipt of distributions in
respect of such Class R-[ ] Certificate. If any purported transfer of a Class
R-[ ] Certificate shall be in violation of the provisions of Section 8.02(d)
of the Agreement, as described in this paragraph, then the prior Holder of the
Class R-[ ] Certificate purportedly transferred shall, upon discovery that the
transfer of such Class R-[ ] Certificate was not in fact permitted by Section
8.02(d) of the Agreement, be restored to all rights as Holder thereof
retroactive to the date of the purported transfer. The Trustee shall be under
no liability to any Person for any registration of transfer of a Class R-[ ]
Certificate that is not permitted by Section 8.02(d) of the Agreement or for
making payments due on such Class R-[ ] Certificate to the purported Holder
thereof or taking any other action with respect to such purported Holder under
the provisions of the Agreement. The prior Holder shall be entitled to recover
from any purported Holder of a Class R-[ ] Certificate that was in fact not a
permitted transferee under Section 8.02(d) of the Agreement at the time it
became a Holder all payments made on such Class R-[ ] Certificate. The Holder
of a Class R-[ ] Certificate, by its acceptance thereof, shall be deemed for
all purposes to have consented to the provisions of Section 8.02 of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of a Class R-[ ] Certificate to a
Disqualified Organization or any other Person will not cause the Trust Fund to
cease to qualify as a REMIC or cause the imposition of a tax upon the Trust
Fund.
A Disqualified Organization is any of (i) the United States, any
State or political subdivision thereof, any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (ii) any organization (other than a cooperative described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code unless such organization is subject to the tax imposed by Section 511
of the Code, or (iii) any organization described in Section 1381(a)(2)(C) of
the Code. A corporation will not be treated as an instrumentality of the
United States or of any State or any political subdivision thereof if all of
its activities are subject to tax and, with the exception of FHLMC, a majority
of its board of directors is not selected by a governmental unit. A Non-United
States Person is a Person other than a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or
an estate or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.]
[No transfer of a Class [ ] Certificate or any interest therein shall
be made to (A) any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts 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 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 Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon distribution (or provision for distribution) to
the Certificateholders of all amounts held by or on behalf of the Master
Servicer or the Trustee and required to be distributed to them pursuant to the
Agreement following the earlier of (i) the purchase by the Master Servicer,
the Special Servicer, any holder of a Class R-I Certificate, the holder of an
aggregate Percentage Interest In excess of 50% of the Most Subordinate Class
of Certificates at a price equal to the greater of (a) the aggregate fair
market value of all the Mortgage Loans (other than REO Property) included in
the Trust Fund, plus the appraised value of each REO Property, if any,
included in the Trust Fund, as determined by the Depositor and (b) the
aggregate Class Balance of all the Certificates plus accrued and unpaid
interest thereon together with any unreimbursed Advances (including any
interest thereon) and (ii) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the Court of St. James, living on the date hereof. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 1% of the aggregate
Cut-off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer, and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the
status of the Trust Fund as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed under its official seal.
Dated: _______________
STATE STREET BANK AND TRUST COMPANY,
not individually, but solely in its
capacity as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [ ] Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND TRUST COMPANY,
as Certificate Registrar
By:
---------------------------------
Authorized Signatory
<PAGE>
EXHIBIT B
FORM OF ASSET STRATEGY REPORT
<PAGE>
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
[Date]
[Certificate Registrar Name and Address]
Re: J.P. Morgan Commercial Mortgage Finance Corp.,
Mortgage Pass-Through Certificates,
Series 2000-C10, Class [ ]
Dear Sirs:
This letter is delivered to you in connection with the transfer by
______________ (the "Transferor") to ___________________ (the "Transferee") of
a Certificate evidencing a __% Percentage Interest In the captioned Class of
Certificates (the "Certificate"), pursuant to Section 8.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
September 1, 2000, among J.P. Morgan Commercial Mortgage Finance Corp., as
depositor, Midland Loan Services, Inc., as master servicer, ORIX Real Estate
Capital Markets, LLC, as special servicer and State Street Bank and Trust
Company, as trustee. All capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Certificate with
the full right to transfer the Certificate free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Certificate, any Interest In the Certificate or any other similar
security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificate, any Interest In the
Certificate or any other similar security from, or otherwise
approached or negotiated with respect to the Certificate, any
Interest In the Certificate or any other similar security with, any
person by means of any form of general solicitation or general
advertising, including but not limited to any advertisement,
article, notice or other communication published in any newspaper,
magazine or similar news medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or advertising, or in any manner which
would constitute a distribution under the Securities Act of 1933,
as amended (the "1933 Act") or which would render the disposition of
the Certificate a violation of Section 5 of the 1933 Act or require
registration pursuant thereto.
(Transferor)
By:
-------------
Name:
-----------
Title:
----------
<PAGE>
EXHIBIT D-1
FORM OF INVESTMENT LETTER--
QUALIFIED INSTITUTIONAL BUYER
[Date]
[Purchaser]
60 Wall Street
New York, New York 10260
[Trustee Name and Address]
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2000-C10, [Class G, Class H, Class J, Class K, Class L,
Class M, Class NR, Class Q, 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 October 4,
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 September 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 Trustee such certifications, legal opinions and other
information as it may require to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Act. We further
understand that the Certificates will bear a legend to the foregoing
effect.
3. We are a "qualified institutional buyer" (within the
meaning of Rule 144A under the Act) (a "QIB") and we are acquiring
the Certificates for our own account or for the account of a QIB for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Act, and have
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in
the Certificates, and we and any accounts for which we are acting are
each able to bear the economic risk of our or their investment. We
acknowledge that the sale of the Certificates to us is being made in
reliance on Rule 144A.
4. We are acquiring each of the Certificates purchased by us
for our own account or for a single account (which is a QIB and from
which no resale, pledge or other transfer may be made except to
another QIB) as to each of which we exercise sole investment
discretion.
5. 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
<PAGE>
EXHIBIT D-2
FORM OF INVESTMENT LETTER--
REGULATION S
[Date]
[Purchaser]
60 Wall Street
New York, New York 10260
[Trustee Name and Address]
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2000-C10, [Class G, Class H, Class J, Class K, Class L,
Class M, Class NR, Class Q] (the "Certificates") of J.P. Morgan Commercial
Mortgage Finance Corp. (the "Depositor"), we confirm that:
1. We understand that the Certificates have not been, and
will not be registered under the Securities Act of 1933, as amended
(the "Act") and may not be sold except as permitted by the
restrictions and conditions set forth in the Pooling and Servicing
Agreement dated as of September 1, 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 Trustee such certifications, legal opinions and other
information as it may require to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Act. We further
understand that the Certificates will bear a legend to the foregoing
effect.
2. 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 on its behalf
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.
3. 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.
<PAGE>
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to
the matters covered hereby.
Very truly yours,
By:
---------
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
<PAGE>
EXHIBIT E
FORM OF INVESTMENT LETTER--
ACCREDITED INVESTOR
[Date]
[Purchaser]
60 Wall Street
New York, New York 10260
[Trustee Name and Address]
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2000-C10, [Class G, Class H, Class L, Class M, Class J,
Class NR, Class Q, Class R-I, Class R-II and Class R-III] (the "Certificates")
of J.P. Morgan Commercial Mortgage Finance Corp. (the "Depositor"), we confirm
that:
[1. We have received a copy of the Private Placement
Memorandum (the "Private Placement Memorandum") dated September [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 September 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 Trustee such certifications, legal opinions and other
information as it may require to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Act. We further
understand that the Certificates will bear a legend to the foregoing
effect.
3. We are an "accredited investor" (as defined in Rule
501(a)(1), (2), (3), or (7) under the Act) and we are acquiring the
Certificates for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of
the Act, and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks
of our investment in the Certificates, and we and any accounts for
which we are acting are each able to bear the economic risk of our or
their investment.
4. We are acquiring each of the Certificates purchased by us
for our own account or for a single account (each of which is an
"accredited investor" and from which no resale, pledge or other
transfer may be made except to another "accredited investor") as to
which we exercise sole investment discretion.
5. 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
<PAGE>
EXHIBIT F-1
FORM OF TRANSFER AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
1. He is the [Title of Officer] of [Name of Owner] (the record or
beneficial owner (the "Owner") of J.P. Morgan Commercial Mortgage Finance
Corp., Mortgage Pass-Through Certificate, Series 2000-C10, 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. 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
13. The Owner has provided financial statements or other financial
information requested by the transferor in connection with the transfer of the
Class [ ] Certificate to permit the transferor to assess the financial
capability of the Owner to pay any such taxes.
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__.
<PAGE>
EXHIBIT F-2
FORM OF TRANSFEROR CERTIFICATE
[Date]
[Certificate Registrar Name and Address]
Re: J.P. Morgan Commercial Mortgage Finance Corp.,
Mortgage Pass-Through Certificates, Series
2000-C10, Class [ ]
Dear Sirs:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class [ ] Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
___________________________
(Transferor)
By:
---------
Name:
Title:
<PAGE>
EXHIBIT G
MORTGAGE LOAN SCHEDULE
<PAGE>
EXHIBIT H
PROPERTY INFORMATION REPORTS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
------------------------------------- -------------- ---------------- ---------------
Information Type Format Frequency
------------------------------------- -------------- ---------------- ---------------
Property Operating Statement Actual PDF/TIF Quarterly
------------------------------------- -------------- ---------------- ---------------
Property Rent Roll Actual PDF/TIF Quarterly
------------------------------------- -------------- ---------------- ---------------
Property Inspection Actual PDF/TIF Quarterly
------------------------------------- -------------- ---------------- ---------------
Property File (CMSA IRP) Access/Excel Monthly
------------------------------------- -------------- ---------------- ---------------
Loan Periodic Update File (CMSA IRP) Access/Excel Monthly
------------------------------------- -------------- ---------------- ---------------
Bond File (CMSA IRP) Access/Excel Monthly
------------------------------------- -------------- ---------------- ---------------
Servicer Supplemental File (CMSA IRP) Access/Excel Quarterly
------------------------------------- -------------- ---------------- ---------------
Collateral Summary File (CMSA IRP) Access/Excel Monthly
------------------------------------- -------------- ---------------- ---------------
Operating Statement Analysis Report (CMSA IRP) Access/Excel Quarterly
------------------------------------- -------------- ---------------- ---------------
NOI Adjustment Worksheet (CMSA IRP) Access/Excel Quarterly
-------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT I
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
<PAGE>
EXHIBIT J
FORM OF ACKNOWLEDGEMENT
<PAGE>
EXHIBIT K
Confidentiality Agreement for Asset Strategy Report
[Date]
State Street Bank and Trust Company
2 Avenue de Lafayette
Boston, Massachusetts 02111
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 September 1,
2000, by and among J.P. Morgan Commercial Mortgage Finance Corp., as
depositor, State Street Bank and Trust Company, as trustee and ORIX Real
Estate Capital Markets LLC, as special servicer, Midland Loan Services, Inc.,
as master 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:
1. 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;
2. 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;
3. 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
4. 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 Trustee 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 Trustee's
request), return to the Trustee the Report except Notes and will cause all
Notes to be destroyed, and confirm in writing to the Trustee 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
Trustee, or (iii) becomes available to the undersigned on a non-confidential
basis from a source other than the Trustee 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 Trustee 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.
<PAGE>
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
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
--------------
Name:
Title:
<PAGE>
EXHIBIT L
FORM OF SPECIAL SERVICER LETTER PURSUANT TO SECTION 4.01(e)
[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"]
<PAGE>
EXHIBIT M
FORM OF PROPERTY INSPECTION REPORT PURSUANT TO SECTION 4.09(a)
<PAGE>
EXHIBIT N-1
Confidentiality Letter (Certificate Owners)
[Date]
[State Street Bank and Trust Company
2 Avenue de Lafayette
Boston, Massachusetts 02111]
[Midland Loan Services, Inc.
210 West 10th Street, 6th Floor
Kansas City, Missouri 64105]
J.P. Morgan Commercial Mortgage Finance Corp.,
Mortgage Pass-Through Certificates, Series 2000-C10
---------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it has received certain
information (the "Information") pursuant to Section 7.03(d) of the pooling and
servicing agreement (the "Pooling and Servicing Agreement") dated as of
September 1, 2000, by and among J.P. Morgan Commercial Mortgage Finance Corp.,
as depositor, State Street Bank and Trust Company, as trustee and ORIX Real
Estate Capital Markets LLC, as special servicer, Midland Loan Services, Inc.,
as master servicer. Capitalized terms used herein and not otherwise defined
shall have the meaning set forth in the Pooling and Servicing Agreement.
The undersign represents that it is a beneficial owner of a
Book-Entry Certificate issued pursuant to the Pooling and Servicing Agreement.
The undersigned acknowledges and agrees that it is imperative that
the Information remain confidential and represents and warrants that it shall
keep the Information confidential in accordance with and subject to Section
7.03(d) of the Pooling and Servicing Agreement (except that such Certificate
Owner may provide the Information to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein, provided
that such other Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep the Information
confidential).
Very truly yours,
[Certificate Owner]
By:
------------------------------
Name:
Title:
<PAGE>
EXHIBIT N-2
Confidentiality Letter (Prospective Owners)
[Date]
[State Street Bank and Trust Company
2 Avenue de Lafayette
Boston, Massachusetts 02111]
[Midland Loan Services, Inc.
210 West 10th Street, 6th Floor
Kansas City, Missouri 64105]
J.P. Morgan Commercial Mortgage Finance Corp.,
Mortgage Pass-Through Certificates, Series 2000-C10
---------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it has received certain
information (the "Information") pursuant to Section 7.03(d) of the pooling and
servicing agreement (the "Pooling and Servicing Agreement") dated as of
September 1, 2000, by and among J.P. Morgan Commercial Mortgage Finance Corp.,
as depositor, State Street Bank and Trust Company, as trustee and ORIX Real
Estate Capital Markets LLC, as special servicer, Midland Loan Services, Inc.,
as master servicer. Capitalized terms used herein and not otherwise defined
shall have the meaning set forth in the Pooling and Servicing Agreement.
The undersign represents that it is a prospective purchaser of a
Certificate, or an interest therein, issued pursuant to the Pooling and
Servicing Agreement and is requesting the Information for use in evaluating a
possible investment in such Certificate.
The undersigned acknowledges and agrees that it is imperative that
the Information remain confidential and represents and warrants that it shall
keep the Information confidential in accordance with and subject to Section
7.03(d) of the Pooling and Servicing Agreement.
Very truly yours,
[Prospective Owner]
By:
---------------------------------------
Name:
Title:
<PAGE>
EXHIBIT O
[RESERVED]
<PAGE>
EXHIBIT P
[RESERVED]
<PAGE>
EXHIBIT Q
[RESERVED]
<PAGE>
EXHIBIT R
[RESERVED]
<PAGE>
EXHIBIT S
FORM OF NOTICE REGARDING TRANSFER TO SPECIAL SERVICING
PURSUANT TO SECTION 6.02(a)
[MASTER SERVICER STATIONERY]
Date
Trustee Name and Address
Depositor Name and Address
Master Servicer Name and Address
Special Servicer Name and Address
Re: Transfer of Servicing of Loan in the Name of [Mortgagor's
Name], Loan [Mortgagor's Primary ID Number]
Dear Sir/Madam:
Please be advised that the servicing of the above-referenced loan
will be transferred to ["Special Servicer's Name"] for special servicing as of
the date of this letter. This loan is being transferred to ["Special
Servicer's Name"] for servicing the following noted reason:
1. The loan has become a Defaulted Mortgage Loan;
2. The Mortgagor has entered into or consented to bankruptcy, appointment of
a receiver or conservator or a similar insolvency or a similar
proceeding, or the Mortgagor has become a subject of a decree or order
for such a proceeding which shall have remained in force on discharged or
unstayed for a period of 60 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:
-
cc: ["Special Servicer's Name"]
<PAGE>
EXHIBIT T
FORM OF NOTIFICATION OF SERVICING TRANSFER
[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")
<PAGE>
EXHIBIT U
[RESERVED]
<PAGE>
EXHIBIT V
[RESERVED]
<PAGE>
EXHIBIT W
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(a)
[SPECIAL SERVICER STATIONERY]
Date
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 ["Master Servicer Name"] as of [Date]. This Mortgage Loan
is being returned for the following reason:
_____ 1. Request from Master Servicer that the Mortgage Loan be
returned based on receipt of information which resulted in
the Mortgage Loan not being considered a Specially
Serviced Mortgage Loan.
_____ 2. The Mortgage Loan is current as to payments of
principal and interest. No Servicing Transfer Event is
continuing. Three Monthly Payments have been made in
accordance with the terms of the related Mortgage Note for
the months of [List Months], [Year].
_____ 3. Other:
All capitalized terms, unless otherwise defined, shall have the meanings set
forth in the Servicing Agreement among the above addresses and the
undersigned.
Very truly yours,
Name of Special Servicer Servicing Officer and Title
<PAGE>
EXHIBIT X
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(b)
[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"].
<PAGE>
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:
--
<PAGE>
EXHIBIT Y
FORM OF REQUEST FOR RELEASE AND RECEIPT OF
DOCUMENTS PURSUANT TO SECTION 11.14
Date
To: State Street Bank and Trust Company
2 Avenue de Lafayette
Boston, MA 02111
Re: Pooling and Servicing Agreement, dated as of September 1, 2000, by and
among J.P. Morgan Commercial Mortgage Finance Corp., as Depositor,
Midland Loan Services, Inc., as Master Servicer, ORIX Real Estate Capital
Markets, LLC, as Special Servicer, and State Street Bank and Trust
Company, as Trustee.
In connection with the administration of the Mortgage Loans held by
you as the Custodian for the Trustee, we request the release of the (Mortgage
Loan 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) _______
<PAGE>
If item 1 or 2 above is checked, and if all or part of the Mortgage
Loan 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,
as Custodian
By:
----
Name:
--
Title:
-
Date:
--
<PAGE>
EXHIBIT Z
REO ACCOUNT LETTER PURSUANT TO SECTION 6.09(b)
<PAGE>
REO ACCOUNTS REPORT Account #
FROM (DAY AFTER PRIOR PRIMARY REMITTANCE DATE)
TO AND INCLUDING (CURRENT PRIMARY REMITTANCE DATE)
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
<PAGE>
REO ACCOUNTS REPORT
FROM (DAY AFTER PRIOR PRIMARY REMITTANCE DATE)
TO AND INCLUDING (CURRENT PRIMARY REMITTANCE DATE) Account #
BEGINNING BALANCE $0.00
COLLECTIONS:
DELINQUENT PAYMENTS $0.00
PAYMENTS FOR CURRENT DUE PERIOD
(Includes net liquidation proceeds & prepayments)
PAYMENTS FOR FUTURE DUE PERIODS $0.00
PRIMARY SERVICER ADVANCES $0.00
LIQUIDATION PROCEEDS - To be applied to 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
