UNITED STATES
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 September 29, 1998
TRUST CREATED BY COMMERCIAL MORTGAGE ACCEPTANCE CORP.
(under a Pooling and Servicing Agreement dated as of
September 1, 1998, which Trust is the Issuer of
Commercial Mortgage Pass-Through Certificates, Series 1998-C2)
(Exact name of registrant as specified in its charter)
New York 333-60749-01 Applied For
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification)
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway, Columbia, MD 21044-3562
Attention: Corporate Trust Department-Commercial
Mortgage Acceptance Corp. Series 1998-C2
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: 410-884-2000
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
Exhibit 1.1 Underwriting Agreement dated September 29, 1998, by and between
Commercial Mortgage Acceptance Corp., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Greenwich NatWest Limited as
agent for National Westminster Bank, Plc.
Exhibit 4.1 Pooling and Servicing Agreement dated September 1, 1998 by and
between Commercial Mortgage Acceptance Corp., Midland Loan
Services, Inc. and Norwest Bank Minnesota, N.A.
SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
COMMERCIAL MORTGAGE ACCEPTANCE CORP.
By: /s/ Leon E. Bergman
-------------------------
Name: Leon E. Bergman
Title: Exec. Vice President
Date: October 14, 1998
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EXHIBIT INDEX
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Exhibit 1.1 Underwriting Agreement dated September 29, 1998, by and between
Commercial Mortgage Acceptance Corp., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Greenwich NatWest Limited as
agent for National Westminster Bank, Plc.
Exhibit 4.1 Pooling and Servicing Agreement dated September 1, 1998 by and
between Commercial Mortgage Acceptance Corp., Midland Loan
Services, Inc. and Norwest Bank Minnesota, N.A.
COMMERCIAL MORTGAGE ACCEPTANCE CORP.
(a Missouri corporation)
UNDERWRITING AGREEMENT
$2,558,779,000 (Approximate)
Commercial Mortgage Pass-Through Certificates, Series 1998-C2
September 29, 1998
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TABLE OF CONTENTS
1. Representations and Warranties..........................................3
(a) Representations and Warranties by the Company.......................3
(i) Compliance with Registration Requirements..................3
(ii) Incorporated Documents.....................................4
(iii) No Material Adverse Change in Business.....................4
(iv) Good Standing of the Company...............................4
(v) Authorization of Agreement.................................4
(vi) Authorization of Other Agreements..........................4
(vii) Description of the Pooling and Servicing
Agreement...............................................5
(viii) Description of the Certificates............................5
(ix) Absence of Defaults and Conflicts..........................5
(x) Absence of Labor Dispute...................................6
(xi) Absence of Proceedings.....................................6
(xii) Accuracy of Exhibits.......................................7
(xiii) Possession of Intellectual Property........................7
(xiv) Absence of Further Requirements............................7
(xv) Possession of Licenses and Permits.........................7
(xvi) Tax Returns................................................8
(xvii) Investment Company Act.....................................8
(xviii) Environmental Laws.........................................8
(xix) No Liens...................................................9
(xx) Sale of Mortgage Loans.....................................9
(xxi) Ratings....................................................9
(xxii) Taxes.....................................................10
(b) Officer's Certificates.............................................10
2. Sale and Delivery to the Underwriters; Closing..........................10
(a) Certificates........................................................10
(b) Payment.............................................................10
(c) Denominations; Registration.........................................10
3. Covenants of the Company...............................................11
(a) Compliance with Securities Regulations and Commission Requests......11
(b) Filing of Amendments................................................11
(c) Delivery of Registration Statements.................................11
(d) Delivery of Prospectuses............................................12
(e) Continued Compliance with Securities Laws...........................12
(f) Blue Sky Qualifications.............................................12
(g) Reporting Requirements..............................................13
(h) Rating of Certificates..............................................13
(i) DTC 13
(j) Restriction on Sale of Securities...................................13
4. Payment, of Expenses...................................................13
(a) Expenses............................................................13
(b) Termination of Agreement............................................14
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5. Conditions of Underwriters' Obligations................................14
(a) Effectiveness of Registration Statement.............................14
(b) Opinion of Counsel for the Master Servicer and the
Special Servicer..................................................14
(c) Opinion of Counsel for the Underwriters.............................14
(d) Officers' Certificate of the Company................................15
(e) Officers' Certificates of the Master Servicer and the
Special Servicer..................................................15
(f) Accountant's Comfort Letter.........................................15
(g) Bring-down Comfort Letter...........................................15
(h) Maintenance of Rating...............................................15
(i) Underwriter Opinion of Counsel for Trustee..........................16
(j) Opinion of Tax and ERISA Counsel....................................16
(k) Opinion of Counsel for the Company..................................16
(l) Additional Documents................................................16
(m) Termination of Agreement............................................16
6. Indemnification.........................................................17
(a) Indemnification of Underwriters......................................17
(b) Indemnification of the Company, Directors and Officers...............18
(c) Actions against Parties; Notification................................19
(d) Settlement without Consent if Failure to Reimburse...................20
7. Contribution............................................................21
8. Representations, Warranties and Agreements to Survive Delivery..........22
9. Termination of Agreement................................................22
(a) Termination; General.................................................22
(b) Liabilities..........................................................23
10. Notices................................................................23
11. Parties................................................................23
12. GOVERNING LAW AND TIME.................................................24
13. Effect of Headings.....................................................24
14. Miscellaneous..........................................................24
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$2,558,779,000 (Approximate)
COMMERCIAL MORTGAGE ACCEPTANCE CORP.
(a Missouri corporation)
Mortgage Pass-Through Certificates, Series 1998-C2
UNDERWRITING AGREEMENT
September 29, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
GREENWICH NATWEST
Greenwich NatWest Limited,
as Agent for
National Westminster Bank, Plc
135 Bishops Gate
London, England EC2M3UR
Ladies and Gentlemen:
Commercial Mortgage Acceptance Corp., a Missouri corporation (the
"Company"), confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and Greenwich NatWest Limited ("GNL"), as agent
for National Westminster Bank, Plc, (GNL and Merrill Lynch, each an
"Underwriter" and, together, the "Underwriters"), with respect to the issue and
sale by the Company and the purchase by each Underwriter of the initial
certificate balance set forth in Schedule A hereto of $2,558,779,000
(Approximate) aggregate initial certificate balance of the Company's Commercial
Mortgage Pass-Through Certificates, Series 1998-C2 (the "Certificates"). The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund") to be formed by the Company and consisting primarily of a
segregated pool (the "Mortgage Pool") of multifamily and commercial mortgage
loans (the "Mortgage Loans") to be purchased from Merrill Lynch Mortgage Capital
Inc., Midland Loan Services, Inc. ("Midland") and Greenwich Capital Financial
Products, Inc., ("GCFP") (collectively, the "Mortgage Loan Sellers"). The
Certificates are to be issued pursuant to a pooling and servicing agreement,
dated as of September 1, 1998 (the "Pooling and Servicing Agreement"), among the
Company as depositor, Norwest Bank Minnesota, National Association, as trustee
(the "Trustee") and Midland Loan Services, Inc. as master servicer and special
servicer (the "Master Servicer" and the "Special Servicer"). Certificates issued
in book-entry form will be issued to Cede & Co. as nominee of The Depository
Trust
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Company ("DTC") pursuant to a letter agreement, to be dated as of the Closing
Time (as defined in Section 2(b)) (the "DTC Agreement"), among the Depositor,
the Trustee and DTC.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (File No. 333-60749)
relating to the Certificates, and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act"), and has filed, and proposes to file, such amendments thereto as may have
been required to the date hereof and as shall be required to the effective date
thereof pursuant to the 1933 Act and the rules of the Commission thereunder (the
"1933 Act Regulations"). Such registration statement, as amended at the time
when each becomes effective under the 1933 Act and at the Closing Time defined
below, is referred to herein as the "Registration Statement". The Company
proposes to file with the Commission pursuant to Rule 424(b)(5) under the 1933
Regulations a supplement (the "Prospectus Supplement") to the form of prospectus
(as may be amended in connection with such Prospectus Supplement, the "Basic
Prospectus"; the Basic Prospectus, together with the Prospectus Supplement, the
"Prospectus"). Any preliminary form of the Prospectus that has heretofore been
filed pursuant to Rule 424(b) or prior to the effective date of the Registration
Statement, pursuant to Rule 402(a) or 424(a) is hereinafter called a
"preliminary prospectus".
For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
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1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, and as of the
Closing Time referred to in Section 2(b) hereof, and agrees with each
Underwriter as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. At the time
the Registration Statement became effective and at the Closing Time, the
Registration Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the Trust Indenture Act of 1939, as
amended (the "1939 Act") and the rules and regulations of the Commission
thereunder (the "1939 Act Regulations"), and did not and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement
was issued and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing (including electronic media) by the Underwriters
expressly for use in the Registration Statement or Prospectus.
The Prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and the Prospectus delivered to
each Underwriter for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus was
issued and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in light of the circumstances in which they were made.
(iii) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the financial condition,
earnings, business affairs or business prospects of the Company (a
"Material Adverse Effect"), whether or not arising in the ordinary course
of business and (B) there have been no transactions entered into by the
Company, other than those in the ordinary course of business, which are
material with respect to the Company.
(iv) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Missouri and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(v) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(vi) Authorization of Other Agreements. Each of the Pooling
and Servicing Agreement, the Mortgage Loan Purchase Agreements and this
Agreement has been duly authorized and, at the Closing Time, will have
been duly executed and delivered by the Company and will each constitute a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms, subject
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(i) to applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally, (ii) as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (iii) as to
enforceability with respect to rights of indemnity thereunder, to
limitations of public policy under applicable securities laws.
(vii) Description of the Pooling and Servicing Agreement. The
description of the Pooling and Servicing Agreement in the Prospectus
conforms in all material respects with the terms thereof. At the Closing
Time, the Pooling and Servicing Agreement will conform in all material
respects to the description thereof contained in the Prospectus.
(viii) Description of the Certificates. The Certificates have
been duly authorized by the Company for issuance and sale pursuant to this
Agreement and the Pooling and Servicing Agreement (or will have been so
authorized prior to the issuance of the Certificates), and the
Certificates and the Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Grantor Trust, Class R-I, Class R-II and Class R-III Certificates
when duly authorized, executed, issued, authenticated and delivered
pursuant to the provisions of this Agreement, the Certificate Purchase
Agreement (the "Certificate Purchase Agreement") of even date herewith
between the Company and the Underwriters, and the Pooling and Servicing
Agreement against payment of the consideration therefor in accordance with
this Agreement and the Certificate Purchase Agreement, will be validly
issued and outstanding and the holders thereof shall be entitled to the
benefits of the Pooling and Servicing Agreement, except as the
enforceability thereof may be limited by the effect of (a) bankruptcy,
reorganization insolvency, moratorium or other similar laws effecting
creditors' rights generally and (b) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law). The description of the Certificates in the Prospectus conforms or
will conform in all material respects with the terms thereof and will be
in substantially the respective forms to be filed on Form 8-K within 15
days after the Closing Time and incorporated by reference, as the case may
be, as exhibits to the Registration Statement.
(ix) Absence of Defaults and Conflicts. The Company is not in
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound, or
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to which any of the property or assets of the Company is subject
(collectively, "Agreements and Instruments") except for such defaults that
would not result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement and any other agreement or instrument
entered into or issued or to be entered into or issued by the Company in
connection with the transactions of the Company contemplated hereby or
thereby or in the Registration Statement and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Certificates) and compliance by
the Company with its obligations hereunder have been duly authorized by
all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or a Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, the
Agreements and Instruments except for such conflicts, breaches, defaults,
Repayment Events or liens, charges or encumbrances that, singly or in the
aggregate, would not result in a Material Adverse Effect, nor will such
action result in any violation of the provisions of the charter or by-laws
of the Company or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of
its assets or properties that, singly or in the aggregate, would have a
Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or its affiliates.
(x) Absence of Labor Dispute No labor dispute with the
employees of the Company exists or, to the knowledge of the Company, is
imminent.
(xi) Absence of Proceedings. There is no action, suit or
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company which would reasonably be expected to
result in a Material Adverse Effect, or which would reasonably be expected
to materially and adversely affect the properties or assets of the Company
taken as a whole or the consummation of this Agreement or the performance
by the Company of its obligations hereunder. The aggregate of all pending
legal or governmental proceedings to which the Company is a party or of
which any of its property or assets
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is the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, would
not reasonably be expected to result in a Material Adverse Effect.
(xii) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required, except for any documents permitted to be
filed on Form 8-K within 15 days after the Closing Time.
(xiii) Possession of Intellectual Property. The Company owns
or possesses, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property"), if any, necessary to carry on the business now
operated by it, and the Company has not received any notice or is not
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company and which infringement
or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate, would
result in a Material Adverse Effect.
(xiv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Certificates hereunder or the consummation of the transactions of
the Company contemplated by this Agreement, except such as may be required
under the 1933 Act Regulations, the 1939 Act Regulations or state
securities or blue sky laws.
(xv) Possession of Licenses and Permits. The Company possesses
such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to enter
into, and perform its obligations under this Agreement and to conduct the
business now operated by it; the Company is in compliance with the terms
and conditions of all such Governmental Licenses, except where
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the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and the Company has
not received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xvi) Tax Returns. The Company has filed all federal, state,
local and foreign tax returns that are required to be filed or has duly
requested extensions thereof and has paid all taxes required to be paid by
it and any related assessments, fines or penalties, except for any such
tax, assessment, fine or penalty that is being contested in good faith and
by appropriate proceedings; and adequate charges, accruals and reserves
have been provided for in respect of all federal, state, local and foreign
taxes for all periods as to which the tax liability of the Company has not
been finally determined or remains open to examination by applicable
taxing authorities.
(xvii) Investment Company Act. The Company is not and upon the
issuance and sale of the Certificates as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act"). The Trust Fund is not required
to be registered as an "investment company" under the 1940 Act.
(xviii) Environmental Laws. Except as described in the
Registration Statement and except such matters as would not, singly or in
the aggregate, result in a Material Adverse Effect, (A) the Company is not
in violation of any federal, state, local or foreign statute, law, rule
regulation, ordinance, code, policy or rule of common law or any judicial
or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"),
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(B) the Company has all permits, authorizations and approvals required
under any applicable Environmental Laws and is in compliance with its
requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company and (D) there are no
events or circumstances that would reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Company relating to Hazardous Materials or Environmental
Laws.
(xix) No Liens. At the time of the execution and delivery of
the Pooling and Servicing Agreement, the Company (A) will convey to the
Trustee, or cause to be conveyed to the Trustee, all of its right, title
and interest in and to the Mortgage Loans, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens") granted by or imposed upon the Company,
(B) will not have assigned to any person any of its right, title or
interest in such Mortgage Loans or in the Pooling and Servicing Agreement
or the Certificates, and (C) will have the power and authority to transfer
such Mortgage Loans to the Trustee and to sell the Certificates to the
Underwriters, and upon delivery to the Underwriters of the Certificates
pursuant hereto, each Underwriter will have good title to the Certificates
purchased by such Underwriter, in each case free of Liens (excluding Liens
granted by or imposed upon such Underwriter by Persons other than the
Company or any Affiliate thereof).
(xx) Sale of Mortgage Loans. Under generally accepted
accounting principles ("GAAP") and for federal income tax purposes, the
Company will report the transfer of the Mortgage Loans to the Trustee in
exchange for the Certificates and the sale of the Certificates to the
Underwriters pursuant to this Agreement as a sale of the interests in the
Mortgage Loans evidenced by the Certificates. The consideration received
by the Company upon the sale of the Certificates to the Underwriters will
constitute reasonably equivalent value and fair consideration for the
Certificates. The Company will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the sale of the Certificates to the
Underwriters. The Company is not selling the Certificates to the
Underwriters with any intent to hinder, delay or defraud any of the
creditors of the Company.
(xxi) Ratings. At the Closing Time, the respective classes of
Certificates shall have been assigned ratings no lower than those set
forth in Schedule A hereto
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by the nationally recognized statistical rating organizations identified
in Schedule A hereto (the "Rating Agencies").
(xxii) Taxes. Any taxes, fees and other governmental charges
in connection with the execution, delivery and issuance of this Agreement,
the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements
and the Certificates payable by the Company (other than income taxes) have
been paid or will be paid at or prior to the
Closing Time.
(b) Officer's Certificates. Any certificate signed by any officer
of the Company and delivered to the Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
2. Sale and Delivery to the Underwriters; Closing.
(a) Certificates. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees to purchase from the Company, at the purchase price set forth in Schedule
A, the aggregate initial certificate balance of Certificates set forth in
Schedule A opposite the name of such Underwriter.
(b) Payment. Payment of the purchase price for, and delivery of
the Certificates shall be made at the office of Willkie Farr & Gallagher or at
such other place as shall be agreed upon by the Underwriters and the Company, at
10:00 A.M. on or about September 29, 1998 or such other time not later than ten
business days after such date as shall be agreed upon by the Underwriters and
the Company (such time and date of payment and delivery being herein called the
"Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
each Underwriter for the account of such Underwriter of the Certificates to be
purchased by them. The Certificates shall be registered in the name of Cede &
Co., pursuant to the DTC Agreement and shall be made available for examination
and packaging by the Underwriters in the City of New York not later than 10:00
A.M. on the last business day prior to the Closing Time.
(c) Denominations; Registration. The Certificates shall be in such
denominations as the Underwriters may request in writing at least one full
business day before the Closing Time.
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3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company will notify each Underwriter immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus that relates to the offering of the Certificates shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any other order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Certificates for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any such order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give each Underwriter
notice of its intention to file or prepare any amendment to the Registration
Statement or any amendment, supplement or revision to either the Basic
Prospectus or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise (other than reports to be filed pursuant to the 1934 Act), will
furnish each Underwriter with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file or use any such document to which either Underwriter or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. Upon request the Company
will deliver to each Underwriter and counsel for the Underwriters, without
charge, a signed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and a conformed copy of all consents and certificates of
experts. The copies of the Registration Statement and each amendment thereto
furnished to each Underwriter will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
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(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus, if
any, as each such Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as each
such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to each Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit
the completion of the distribution of the Certificates as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Certificates, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to each Underwriter such number of copies of such amendment or
supplement as each such Underwriter may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with each Underwriter, to qualify the Certificates for
offering and sale under the applicable securities laws of such states and other
jurisdictions as each such Underwriter may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
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respect of doing business in any jurisdiction in which it is not otherwise so
subject. The Company will also supply each Underwriter with such information as
is necessary for the determination of the legality of the Certificates for
investment under the laws of such jurisdictions as each such Underwriter may
request.
(g) Reporting Requirements. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(h) Rating of Certificates. The Company shall take all reasonable
action necessary to enable Standard & Poor's Ratings Service, a division of The
McGraw Hill Companies, Inc., ("S&P"), and Duff & Phelps Rating Co. ("DCR") to
provide their respective credit ratings of the Certificates as described in the
Prospectus.
(i) DTC. The Company will cooperate with each Underwriter and
use its best efforts to permit the Certificates to be eligible for clearance
and settlement through the facilities of DTC in the U.S. and Cedel Bank S.A.
("CEDEL") and The Euroclear System ("Euroclear") as participants of DTC in
Europe.
(j) Restriction on Sale of Securities. During the period from the
date hereof to the Closing Time, the Company will not, without the prior written
consent of the Underwriters, directly or indirectly, issue, sell, offer or agree
to sell, grant any option for the sale of, or otherwise dispose of, any other
mortgage-related securities of the Company or securities of the Company that are
convertible into, or exchangeable for, the Certificates or such other
securities.
4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and any filing of the Registration Statement (including
any schedules or exhibits and any document incorporated therein by reference)
originally filed and of each amendment or supplement thereto, (ii) the
preparation, printing and delivery to each Underwriter of this Agreement, the
Pooling and Servicing Agreement and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Certificates,
(iii) the preparation, issuance and delivery of the Certificates to each
Underwriter, including any charges of DTC in connection therewith, (iv) the fees
and disbursements of the Company's accountants and other advisors, (v) the
qualification of the
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Certificates under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing
and delivery to each Underwriter of copies of each preliminary prospectus and of
the Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses of the Trustee, the Master Servicer and the Special Servicer, including
the fees and disbursements of counsel for the Trustee, the Master Servicer and
the Special Servicer in connection with the Pooling and Servicing Agreement and
the Certificates and (viii) any fees payable in connection with the rating of
the Certificates.
(b) Termination of Agreement. If this Agreement is terminated by
either Underwriter in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse such Underwriter for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for such Underwriter.
5. Conditions of Underwriters' Obligations. The obligations of
each Underwriter hereunder are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. At the Closing Time
no stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
(b) Opinion of Counsel for the Master Servicer and the Special
Servicer. At the Closing Time, each Underwriter shall have received the
favorable opinion, dated as of the Closing Time, of counsel for the Master
Servicer and the Special Servicer, in form and substance satisfactory to counsel
for the Underwriters.
(c) Opinion of Counsel for the Underwriters. At the Closing Time,
each Underwriter shall have received the favorable opinions, dated as of the
Closing Time, of counsel for the Underwriters. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Underwriters and
certificates of public officials.
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(d) Officers' Certificate of the Company. At the Closing Time,
there shall not have been, since the date hereof or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the financial condition, earnings, business affairs or business prospects of
the Company, whether or not arising in the ordinary course of business, and each
Underwriter shall have received a certificate of the President or a Vice
President of the Company dated as of the Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct in all material respects
with the same force and effect as though expressly made at and as of the Closing
Time, (iii) each has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied in all
material respects at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to the
Company's knowledge, are contemplated by the Commission.
(e) Officers' Certificates of the Master Servicer and the Special
Servicer. At the Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the financial condition, earnings,
business affairs or business prospects of the Master Servicer and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and each Underwriter shall have received a
certificate of the President or a Vice President of the Master Servicer and the
Special Servicer, dated as of the Closing Time, to that effect.
(f) Accountant's Comfort Letter. At or prior to the time of the
execution of this Agreement, each Underwriter shall have received from each of
Ernst & Young LLP ("EY") and PriceWaterhouseCoopers, LLP ("PWC") a letter dated
such date, in form and substance satisfactory to each Underwriter, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to each Underwriter with respect to certain financial
information contained in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At the Closing Time, each
Underwriter shall have received from each of EY & PWC a letter, dated as of the
Closing Time, to the effect that it reaffirms the statements made in its letter
furnished pursuant to subsection (f) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to the
Closing Time.
(h) Maintenance of Rating. At the Closing Time, the
Certificates shall have received the ratings set forth in
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Schedule A and the Company shall have delivered to each Underwriter a letter
dated the Closing Time, from each such rating agency, or other evidence
satisfactory to each Underwriter, confirming that the Certificates have such
ratings.
(i) Opinion of Counsel for Trustee. At the Closing Time, each
Underwriter shall have received the favorable opinion, dated as of the Closing
Time, of counsel for the Trustee, in form and substance satisfactory to counsel
for the Underwriters.
(j) Opinion of Tax and ERISA Counsel. At the Closing Time, each
Underwriter shall have received a favorable opinion, dated as of the Closing
Time, of tax and ERISA counsel to the Company with respect to the Certificates
(i) regarding the qualification of each of REMIC I, REMIC II and REMIC III (as
each such term is defined in the Pooling and Servicing Agreement) as a real
estate mortgage investment conduit within the meaning of Sections 860A through
860G of the Internal Revenue Code of 1986, as amended, and (ii) to the effect
that the statements in the Basic Prospectus and the Prospectus Supplement under
the headings "MATERIAL FEDERAL INCOME TAX CONSEQUENCES" and "ERISA
CONSIDERATIONS", to the extent that they constitute matters of State of New York
or federal law or legal conclusions with respect thereto, while not purporting
to discuss all possible consequences of investment in the Certificates described
therein, are correct in all material respects with respect to those consequences
or matters that are discussed therein.
(k) Opinion of Counsel for the Company. At the Closing Time, each
Underwriter shall have received the favorable opinion, dated as of the Closing
Time, of counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters.
(l) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Certificates as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Certificates as herein contemplated
shall be satisfactory in form and substance to each Underwriter and counsel for
the Underwriters.
(m) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by either Underwriter by notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in
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Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter, as the case may be, within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Computational
Materials, ABS Term Sheets or Collateral Term Sheets distributed by such
Underwriter, unless such untrue statement or alleged untrue statement of a
material fact was made in reliance upon and in conformity with Derived
Information provided by such Underwriter expressly for use in the
Computational Materials, ABS Term Sheets or Collateral Term Sheets and the
untrue statement or alleged untrue statement did not derive from an
inaccuracy in the Seller-Provided Information used in the preparation of
such Computational Materials, ABS Term Sheets or Collateral Term Sheets;
(iii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iv) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel
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chosen by such Underwriter), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information (including information provided
in electronic format) furnished to the Company by such Underwriter expressly for
use in the Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); provided
further that the Company's agreement to indemnify and reimburse any Underwriter
(or any officer or director thereof or any person controlling such Underwriter)
under this Section 6 shall not apply to any loss, claim, damage, liability or
expense arising out of or relating to claims asserted by any person who
purchased any Registered Certificates pursuant to the Preliminary Prospectus
Supplement that are the subject of such claims if such person did not receive a
copy of the Prospectus Supplement concurrently with or prior to the settlement
of the sale of such Registered Certificates to such person in any case where the
untrue statement or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact contained in such Preliminary
Prospectus Supplement which was the basis of any such claims, was corrected in
the Prospectus Supplement.
(b) Indemnification of the Company, Directors and Officers. Each
Underwriter agrees to indemnify and hold harmless the Company, its directors and
its officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act as follows (i) against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information (including information provided in
electronic format) furnished to the Company by such Underwriter expressly for
use in the Registration Statement (or amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), and (ii)
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but
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only with respect to untrue statements or alleged untrue statements made in the
Computational Materials, Collateral Term Sheets or ABS Term Sheets to the extent
that such untrue statement or alleged untrue statement of a material fact was
made in reliance upon and in conformity with Derived Information provided by
such Underwriter expressly for use in the Computational Materials, the ABS Term
Sheets or the Collateral Term Sheets and the untrue statements or alleged untrue
statements did not derive from an inaccuracy in the Seller-Provided Information
used in the preparation of such Computational Materials, ABS Term Sheets or
Collateral Term Sheets.
For purposes of this Agreement, "Computational Materials" shall have the meaning
given such term in the No-Action Letter of May 20, 1994 issued by the Commission
to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated
and Kidder Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "Kidder/PSA
Letter"), and the requirements of the No-Action Letter of February 17, 1995
issued by the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder/PSA Letter, the "No-Action Letters"), but shall
include only those Computational Materials that have been prepared or delivered
to prospective investors by such Underwriter. For purposes hereof, "ABS Term
Sheets" and "Collateral Term Sheets" shall have the meanings given such terms in
the PSA Letter but shall include only those ABS Term Sheets or Collateral Term
Sheets that have been prepared or delivered to prospective investors by such
Underwriter. For purposes hereof, "Derived Information" means such portion, if
any, of the information delivered to the Company by such Underwriter for filing
with the Commission on Form 8-K and (i) is not contained in the Prospectus
without taking into account information incorporated therein by reference, and
(ii) does not constitute Seller-Provided Information. "Seller-Provided
Information" means any computer tape (or other information) furnished to such
Underwriter by or on behalf of the Company, including, but not limited to, any
information provided by any Mortgage Loan Seller expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder
to the extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In
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the case of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by the Underwriters and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and the expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the related indemnified party, which consent shall not
be unreasonably withheld or delayed, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof by such indemnified party
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party. An indemnifying party shall not be liable
under any settlement or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened in writing, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof by an indemnified party which is
effected without the prior written consent of such indemnifying party, which
consent will not be unreasonably withheld or delayed.
(d) Settlement without Consent if Failure to Reimburse.
Notwithstanding anything to the contrary contained in Section 6(c), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(iii) effected without its written consent if
(i) such settlement is entered into more that 60 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 45 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
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7. Contribution. If the indemnification provided for in Section 6
hereof is due in accordance with its terms but is for any reason unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and such Underwriter on the
other hand from the offering and sale of the Certificates pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of such Underwriter on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and
such Underwriter on the other hand in connection with the offering and sale of
the Certificates pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering and sale of
the Certificates pursuant to this Agreement (before deducting expenses) received
by the Company and the total underwriting discount received by such Underwriter,
in each case as set forth on Schedule A, bear to the aggregate initial purchase
price of the Certificates as set forth on Schedule A. The relative fault of the
Company on the one hand and such Underwriter on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by such
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and each Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. In the event that any expenses so
paid by the
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indemnifying party are subsequently determined not be required to be borne by
the indemnifying party hereunder (whether in connection with indemnification
pursuant to Section 6 or contribution pursuant to this Section 7), the party
which received such payment shall promptly refund the amount so paid to the
party which made such payment.
Notwithstanding the provisions of this Section 7, each Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total purchase price for the Certificates underwritten by such Underwriter
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls
each Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Underwriter
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. Each Underwriter's obligations to contribute
pursuant to this Section 7 is in proportion to the initial certificate balance
of Certificates set forth opposite its name in Schedule A hereto.
8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of each Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of the Certificates
to each Underwriter.
9. Termination of Agreement.
(a) Termination; General. Either Underwriter may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the financial condition, earnings, business affairs
or business prospects of the Company or any of the Mortgage Loan Sellers,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States, any
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outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of such Underwriter,
impracticable to market the Certificates or to enforce contracts for the sale of
the Certificates, or (iii) if trading in any securities of the Company or any of
the Mortgage Loan Sellers has been suspended or limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or on the Nasdaq National Market has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to
Section 9(a), such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
10. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given upon receipt if
mailed, delivered by courier or transmitted by any standard form of
telecommunication. Notices to Merrill Lynch shall be directed to Merrill Lynch,
Pierce, Fenner & Smith Incorporated, World Financial Center, North Tower, New
York, New York 10281, Attention: Real Estate Investment Banking; notices to GNL
shall be directed to Greenwich Capital Markets, Inc., 600 Steamboat Road,
Greenwich, CT 06830, Attention: Mark R. Jarrell, with a copy to the General
Counsel; and notices to the Company shall be directed to Commercial Mortgage
Acceptance Corp., 210 West 10th Street, 6th Floor, Kansas City, Missouri 64105,
Attention: President; or, as to any party, such other address as may hereafter
be furnished by such party to the others in writing.
11. Parties. This Agreement shall each inure to the benefit of and
be binding upon each Underwriter, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than each Underwriter,
the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the
23
<PAGE>
sole and exclusive benefit of each Underwriter, the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Certificates from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
13. Effect of Headings. The Section and other headings herein and
in the Table of Contents are for convenience of reference only and shall not
affect the construction hereof.
14. Miscellaneous. This Agreement supersedes all prior or
contemporaneous agreements and understandings relating to the subject matter
hereof. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought. This
Agreement may be signed in any number of counterparts, each of which shall be
deemed an original, which taken together shall constitute one and the same
instrument.
24
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
COMMERCIAL MORTGAGE ACCEPTANCE CORP.
By: __________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: ___________________________________
Name:
Title:
GREENWICH NATWEST LIMITED
By: ____________________________________
Name:
Title:
25
<PAGE>
SCHEDULE A
Underwriting Agreement, dated September 29, 1998
Cut-off Date: September 1, 1998
Certificates: Commercial Mortgage Acceptance Corp.,
Commercial Mortgage Pass-Through
Certificates, Series 1998-C2
<TABLE>
<CAPTION>
Percent of Percent of
Initial Initial
Certificate Certificate
Initial Balance to be Balance to Initial
Certificate Purchased by be Pass-
Class Balance of Merrill Purchased Through Purchase Rating
Designation Class Lynch by GNL Rate Price<F1> <F2>
- ----------- --------- --------- ----------- ------ -------- ----
<S> <C> <C> <C> <C> <C> <C>
A-1 515,016,000 75% 25% 5.80% 100.484375% AAA/AAA
A-2 837,749,000 75% 25% 6.03% 100.734375% AAA/AAA
A-3 671,128,000 75% 25% 6.04% 100.718750% AAA/AAA
X (4) 76% 24% <F4> 7.390625% AAA/AAAr
B 144,564,000 76% 24% <F3> 100.703125% AA/AA
C 173,477,000 76% 24% <F3> 100.468750% A/A
D 173,476,000 75% 25% <F3> 100.437500% BBB/BBB
E 43,369,000 77% 23% <F3> 100.015625% BBB-/BBB-
<FN>
(1) Expressed as a percentage of the initial aggregate Certificate Balance of
the relevant Class of Certificates to be purchased. The purchase price for
each Class of the Certificates will include accrued interest at the
initial Pass-Through Rate therefor on the aggregate stated amount thereof
to be purchased from the Cut-Off Date to but not including the Closing
Date.
(2) By each of DCR and Standard & Poor's Rating Services, respectively.
(3) The Pass-Through Rates applicable to the Class B, Class C, Class D and
Class E Certificates will equal the Weighted Average Net Mortgage Rate
minus 0.97%, 0.78%, 0.34% and 0%, respectively.
(4) The Class X Certificates will not have a principal balance nor will they
entitle the holders thereof to receive distributions of principal, but
will entitle such holders to receive payments of interest equal to the
aggregate of the
<PAGE>
interest accrued on the notional amount of each of its Components. The
initial notional amount is $2,891,276,720.
</FN>
</TABLE>
2
=====================================
COMMERCIAL MORTGAGE ACCEPTANCE CORP.
Depositor
and
MIDLAND LOAN SERVICES, INC.
Master Servicer
and
Special Servicer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1998
Commercial Mortgage Pass-Through Certificates
Series 1998-C2
=====================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS
SECTION 1.01. Defined Terms..................................................4
Accrued Certificate Interest.............................................4
Accrued Component Interest...............................................4
Acquisition Date.........................................................5
Additional Interest......................................................5
Additional Interest Rate.................................................5
Additional Trust Fund Expense............................................5
Advance..................................................................5
Adverse REMIC Event......................................................5
Affiliate................................................................5
Agreement................................................................6
Anticipated Repayment Date...............................................6
Appraisal................................................................6
Appraisal Reduction Amount...............................................6
Appraised Value..........................................................6
ARD Mortgage Loans.......................................................7
Assignment of Leases.....................................................7
Assumed Scheduled Payment................................................7
Authenticating Agent.....................................................7
Available Distribution Amount............................................7
Balloon Mortgage Loan....................................................8
Balloon Payment..........................................................8
Bankruptcy Code..........................................................8
Book-Entry Certificate...................................................8
Breach...................................................................8
Business Day.............................................................8
CEDEL....................................................................8
CERCLA...................................................................8
Certificate..............................................................9
Certificate Account......................................................9
Certificate Factor.......................................................9
Certificate Notional Amount..............................................9
Certificate Owner........................................................9
Certificate Principal Balance............................................9
Certificate Register.....................................................9
Certificate Registrar....................................................9
Certificateholder........................................................9
i
<PAGE>
Class...................................................................10
Class A-1 Certificate...................................................10
Class A-2 Certificate...................................................10
Class A-3 Certificate...................................................10
Class B Certificate.....................................................10
Class C Certificate.....................................................11
Class D Certificate.....................................................11
Class E Certificate.....................................................11
Class F Certificate.....................................................11
Class G Certificate.....................................................11
Class H Certificate.....................................................11
Class J Certificate.....................................................11
Class K Certificate.....................................................11
Class L Certificate.....................................................11
Class M Certificate.....................................................12
Class Principal Balance.................................................12
Class R-I Certificate...................................................12
Class R-II Certificate..................................................12
Class R-III Certificate.................................................12
Class X Certificate.....................................................12
Closing Date............................................................12
Code....................................................................12
Collection Period.......................................................13
Comparative Financial Status Report.....................................13
Component...............................................................13
Component Notional Amount...............................................13
Controlling Class.......................................................13
Controlling Class Representative........................................13
Corporate Trust Office..................................................14
Corrected Mortgage Loan.................................................14
Credit Lease............................................................14
Credit Lease Loan.......................................................14
CSSA Loan File Report...................................................14
CSSA Property File Report...............................................14
Custodian...............................................................14
Cut-off Date............................................................14
Cut-off Date Balance....................................................14
DCR.....................................................................15
Debt Service Coverage Ratio.............................................15
Defaulted Mortgage Loan.................................................15
Defeasance Collateral...................................................15
Defeasance Loan.........................................................15
Definitive Certificate..................................................15
Delinquent Loan Status Report...........................................15
ii
<PAGE>
Depositor...............................................................16
Depository..............................................................16
Depository Participant..................................................16
Determination Date......................................................16
Directly Operate........................................................16
Disqualified Organization...............................................16
Distributable Certificate Interest......................................17
Distribution Account....................................................17
Distribution Date.......................................................17
Distribution Date Statement.............................................17
Document Defect.........................................................17
Due Date................................................................17
Eligible Account........................................................18
Environmental Assessment................................................18
ERISA...................................................................18
Escrow Payment..........................................................18
Event of Default........................................................19
Exchange Act............................................................19
FDIC....................................................................19
FHLMC...................................................................19
Final Recovery Determination............................................19
FNMA....................................................................19
Guaranty................................................................20
Hazardous Materials.....................................................20
Historical Loan Modification Report.....................................20
Historical Loss Estimate Report.........................................20
Holder..................................................................20
HUD-Approved Servicer...................................................20
Impound Reserve.........................................................21
Independent.............................................................21
Independent Appraiser...................................................21
Independent Contractor..................................................21
Initial Pool Balance....................................................21
Insurance Policy........................................................22
Insurance Proceeds......................................................22
Interested Person.......................................................22
Investment Account......................................................22
Issue Price.............................................................22
Late Collections........................................................22
Lease Enhancement Policy................................................22
Lease Enhancement Policy Issuer.........................................23
Lease Enhancement Policy Termination Event..............................23
Liquidation Event.......................................................23
Liquidation Proceeds....................................................23
iii
<PAGE>
Loan Payoff Notification Report.........................................24
Loan-to-Value Ratio.....................................................24
Majority Subordinate Certificateholder..................................24
Master Servicer.........................................................24
Master Servicing Fee....................................................24
Master Servicing Fee Rate...............................................24
Master Servicing Fee Rate...............................................24
Merrill Lynch...........................................................25
Monthly Payment.........................................................25
Mortgage................................................................25
Mortgage File...........................................................25
Mortgage Loan...........................................................28
Mortgage Loan Purchase Agreements.......................................28
Mortgage Loan Schedule..................................................28
Mortgage Loan Seller....................................................29
Mortgage Note...........................................................29
Mortgage Pool...........................................................29
Mortgage Rate...........................................................29
Mortgaged Property......................................................30
Mortgagor...............................................................30
Net Aggregate Prepayment Interest Shortfall.............................30
Net Investment Earnings.................................................30
Net Investment Loss.....................................................30
Net Mortgage Rate.......................................................30
Net Operating Income....................................................31
New Lease...............................................................31
NOI Adjustment Worksheet................................................31
Nonrecoverable Advance..................................................31
Nonrecoverable P&I Advance..............................................31
Nonrecoverable Servicing Advance........................................31
Non-Registered Certificate..............................................32
Non-United States Person................................................32
Officers' Certificate...................................................32
Operating Statement Analysis............................................32
Opinion of Counsel......................................................32
Original Component Notional Amount......................................32
Original Class Principal Balance........................................32
OTS.....................................................................32
Ownership Interest......................................................32
Pass-Through Rate.......................................................32
Paying Agent............................................................33
Percentage Interest.....................................................33
Percentage Premium......................................................33
Permitted Investments...................................................34
iv
<PAGE>
Permitted Transferee....................................................36
Person..................................................................36
P&I Advance.............................................................36
P&I Advance Date........................................................36
Plan....................................................................36
Plurality Residual Certificateholder....................................36
Prepayment Assumption...................................................36
Prepayment Interest Excess..............................................36
Prepayment Interest Shortfall...........................................36
Prepayment Premium......................................................37
Prime Rate..............................................................37
Principal Distribution Amount...........................................37
Principal Prepayment....................................................38
Privileged Person.......................................................39
Prospectus..............................................................39
Prospectus Supplement...................................................39
Purchase Price..........................................................39
Qualified Insurer.......................................................39
Qualified Substitute Mortgage Loan......................................39
Rated Final Distribution Date...........................................40
Rating Agency...........................................................41
Realized Loss...........................................................41
Record Date.............................................................41
Recovery Fee............................................................42
Registered Certificate..................................................42
Regular Certificate.....................................................42
Reimbursement Rate......................................................42
Remaining Cash Flow.....................................................42
REMIC...................................................................42
REMIC I.................................................................42
REMIC I Regular Interest................................................42
REMIC I Remittance Rate.................................................43
REMIC II................................................................43
REMIC II Regular Interest...............................................43
REMIC II Remittance Rate................................................43
REMIC III...............................................................43
REMIC III Certificate...................................................43
REMIC Administrator.....................................................43
REMIC Provisions........................................................43
Rents from Real Property................................................44
REO Account.............................................................44
REO Acquisition.........................................................44
REO Disposition.........................................................44
REO Extension...........................................................44
v
<PAGE>
REO Loan................................................................44
REO Property............................................................45
REO Revenues............................................................45
REO Tax.................................................................45
REO Status Report.......................................................45
Request for Release.....................................................45
Required Appraisal......................................................45
Required Appraisal Mortgage Loan........................................46
Required Appraisal Value................................................46
Reserve Account.........................................................46
Reserve Funds...........................................................46
Residual Certificate....................................................46
Responsible Officer.....................................................46
Restricted Servicer Reports.............................................47
Revised Rate............................................................48
Scheduled Payment.......................................................48
Securities Act..........................................................48
Senior Certificate......................................................48
Sequential Pay Certificate..............................................48
Servicing Account.......................................................48
Servicing Advances......................................................48
Servicing Fee...........................................................49
Servicing File..........................................................49
Servicing Officer.......................................................49
Servicing Standard......................................................49
Servicing Transfer Event................................................50
Single Certificate......................................................50
Special Servicer........................................................50
Special Servicing Fee...................................................50
Special Servicing Fee Rate..............................................50
Specially Serviced Mortgage Loan........................................50
Standard & Poor's.......................................................52
Startup Day.............................................................53
State and Local Taxes...................................................53
Stated Maturity Date....................................................53
Stated Principal Balance................................................53
Subordinated Certificate................................................53
Sub-Servicer............................................................53
Sub-Servicing Agreement.................................................54
Substitution Shortfall Amount...........................................54
Tax Matters Person......................................................54
Tax Returns.............................................................54
Tenant..................................................................54
Transfer................................................................55
vi
<PAGE>
Transferee..............................................................55
Transferor..............................................................55
Trust Fund..............................................................55
Trustee.................................................................55
Trustee's Fee...........................................................55
Trustee Fee Rate........................................................55
Trustee Liability.......................................................55
UCC.....................................................................55
UCC Financing Statement.................................................55
Uncertificated Accrued Interest.........................................55
Uncertificated Distributable Interest...................................56
Uncertificated Principal Balance........................................56
Underwriters............................................................57
United States Person....................................................57
Unrestricted Servicer Reports...........................................57
USAP....................................................................58
Voting Rights...........................................................58
Watch List..............................................................58
Weighted Average Effective REMIC I Remittance Rate......................58
Yield Maintenance Charge................................................59
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans..................................60
SECTION 2.02. Acceptance of the Trust Fund by Trustee.......................62
SECTION 2.03. Mortgage Loan Sellers' Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches
of Representations and Warranties..........................63
SECTION 2.04. Representations and Warranties of Depositor...................66
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular
Interests..................................................68
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by Trustee.....................................68
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates...............................................69
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance
of REMIC III by Trustee....................................69
SECTION 2.09. Execution, Authentication and Delivery of REMIC III
Certificates...............................................69
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans..........................70
vii
<PAGE>
SECTION 3.02. Collection of Mortgage Loan Payments..........................71
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.......................73
SECTION 3.04. Certificate Account and Distribution Account..................76
SECTION 3.05. Permitted Withdrawals From the Certificate Account
and the Distribution Account...............................79
SECTION 3.06 Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Certificate Account and the
REO Account................................................82
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage............................85
SECTION 3.08. Enforcement of Alienation Clauses.............................88
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals.................................................89
SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.............................................93
SECTION 3.11. Servicing Compensation........................................94
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports....................97
SECTION 3.13. Annual Statement as to Compliance............................100
SECTION 3.14. Reports by Independent Public Accountants....................100
SECTION 3.15. Access to Certain Information................................101
SECTION 3.16. Title to REO Property; REO Account...........................105
SECTION 3.17. Management of REO Property...................................106
SECTION 3.18. Sale of Mortgage Loans and REO Properties....................109
SECTION 3.19. Additional Obligations of Master Servicer....................113
SECTION 3.20. Modifications, Waivers, Amendments and Consents..............113
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping..........................117
SECTION 3.22. Sub-Servicing Agreements.....................................119
SECTION 3.23. Representations, Warranties and Covenants of Master
Servicer and Special Servicer.............................121
SECTION 3.24. Sub-Servicing Agreement Representation and Warranty..........126
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions................................................127
SECTION 4.02. Statements to Certificateholders; CSSA Loan File
Report....................................................138
SECTION 4.03. P&I Advances.................................................145
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses.............................................148
SECTION 4.05. Calculations.................................................149
SECTION 4.06. Use of Agents................................................149
viii
<PAGE>
ARTICLE V THE CERTIFICATES
SECTION 5.01. The Certificates.............................................150
SECTION 5.02. Registration of Transfer and Exchange of
Certificates..............................................151
SECTION 5.03. Book-Entry Certificates......................................156
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates............158
SECTION 5.05. Persons Deemed Owners........................................158
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer..................................................159
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.......................159
SECTION 6.03. Limitation on Liability of Depositor, Master
Servicer and Special Servicer.............................160
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer; Assignment of Rights and Obligations............161
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer.........................162
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee....................................162
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer......................................162
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.....................................163
SECTION 6.09. Designation of Special Servicer by the Controlling
Class.....................................................163
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate...............................................164
SECTION 6.11. The Controlling Class Representative.........................165
ARTICLE VII DEFAULT
SECTION 7.01. Events of Default............................................168
SECTION 7.02. Trustee to Act; Appointment of Successor.....................172
SECTION 7.03. Notification to Certificateholders...........................173
SECTION 7.04. Waiver of Events of Default..................................174
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.........174
ARTICLE VIII CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee............................................175
SECTION 8.02. Certain Matters Affecting Trustee............................176
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans............................178
SECTION 8.04. Trustee May Own Certificates.................................178
ix
<PAGE>
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee...................................................178
SECTION 8.06. Eligibility Requirements for Trustee.........................179
SECTION 8.07. Resignation and Removal of Trustee...........................180
SECTION 8.08. Successor Trustee............................................181
SECTION 8.09. Merger or Consolidation of Trustee...........................182
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................182
SECTION 8.11. Appointment of Custodians....................................183
SECTION 8.12. Appointment of Authenticating Agents.........................184
SECTION 8.13. Appointment of Paying Agent..................................185
SECTION 8.14. Appointment of REMIC Administrators..........................186
SECTION 8.15. Access to Certain Information................................187
SECTION 8.16. Representations, Warranties and Covenants of Trustee.........187
SECTION 8.17. Reports to the Securities and Exchange Commission;
Available Information.....................................189
SECTION 8.18. Grantor Trust Administration.................................189
ARTICLE IX TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans............................................192
SECTION 9.02. Additional Termination Requirements..........................201
ARTICLE X ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration........................................203
ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment...................................................208
SECTION 11.02. Recordation of Agreement; Counterparts......................210
SECTION 11.03. Limitation on Rights of Certificateholders..................210
SECTION 11.04. Governing Law...............................................211
SECTION 11.05. Notices.....................................................211
SECTION 11.06. Severability of Provisions..................................212
SECTION 11.07. Grant of a Security Interest................................212
SECTION 11.08. Successors and Assigns; Beneficiaries.......................212
SECTION 11.09. Article and Section Headings................................213
SECTION 11.10. Notices to and From Rating Agencies.........................213
SECTION 11.11. Complete Agreement..........................................214
x
<PAGE>
EXHIBITS
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of Class A-1 Certificate A-1 Section 1.01 Definition
of "Class A-1
Certificate"
Form of Class A-2 Certificate A-2 Section 1.01 Definition
of "Class A-2
Certificate"
Form of Class A-3 Certificate A-3 Section 1.01 Definition
of "Class A-3
Certificate"
Form of Class X Certificate A-4 Section 1.01 Definition
of "Class X Certificate"
Form of Class B Certificate A-5 Section 1.01 Definition
of "Class B Certificate"
Form of Class C Certificate A-6 Section 1.01 Definition
of "Class C Certificate"
Form of Class D Certificate A-7 Section 1.01 Definition
of "Class D Certificate"
Form of Class E Certificate A-8 Section 1.01 Definition
of "Class E Certificate"
Form of Class F Certificate A-9 Section 1.01 Definition
of "Class F Certificate"
Form of Class G Certificate A-10 Section 1.01 Definition
of "Class G Certificate"
Form of Class H Certificate A-11 Section 1.01 Definition
of "Class H Certificate"
Form of Class J Certificate A-12 Section 1.01 Definition
of "Class J Certificate"
Form of Class K Certificate A-13 Section 1.01 Definition
of "Class K Certificate"
xi
<PAGE>
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of Class L Certificate A-14 Section 1.01 Definition
of "Class L Certificate"
Form of Class M Certificate A-15 Section 1.01 Definition
of "Class M Certificate"
Form of Class R-I Certificate A-16 Section 1.01 Definition
of "Class R-I
Certificate"
Form of Class R-II Certificate A-17 Section 1.01 Definition
of "Class R-II
Certificate"
Form of Class R-III A-18 Section 1.01 Definition
Certificate of "Class R-III
Certificate"
Form of Grantor Trust A-19 Section 1.01 Definition
Certificate of "Grantor Trust
Certificates"
Mortgage Loan Schedule B Section 1.01 Definition
of "Mortgage Loan
Schedule"
Form of C Section 2.02(a)
Schedule of Exceptions to
Mortgage File Delivery
Form of Master Servicer D-1 Section 1.01 Definition
Request for Release of "Request for Release";
Section 2.03(b); Section
3.10(a); and Section
3.10(b)
Form of Special Servicer D-2 Section 1.01 Definition
Request for Release of "Request for
Release"; Section 3.10(b)
Calculation of NOI/Debt E-1 Section 1.01 Definition
Service Coverage Ratios of "Net Operating
Income"; Section 3.12(b)
Form of Transferor Certificate F-1 Section 5.02(b)
Form of Transferee F-2 Section 5.02(b)
Certificate for QIBs
Form of Transferee F-3 Section 5.02(b)
Certificate for Non-QIBs
xii
<PAGE>
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of Transferee Letter for G Section 3.15 and 5.02(c)
Transfers of Subordinated
Certificates to Non-Plan
Entities
Form of Transfer Affidavit H-1 Section 3.15 and
and Agreement regarding Class 5.02(d)(i)(B)
R-I, R-II and R-III
Certificates
Form of Transferor H-2 Section 5.02(d)(i)(D)
Certificate regarding Class
R-I, R-II and R-III
Certificates
Form of Notice and I-1 Section 6.09
Acknowledgment
Form of Acknowledgment of I-2 Section 6.09
Proposed Special Servicer
[RESERVED] J
Form of Schedule of K Section 4.02(a)
Certificateholders
Form of CSSA Property File L Section 3.12(c)
Report
Form of Comparative Financial M Section 3.12(b) and
Status Report 3.12(c)
Form of REO Status Report N Section 3.12(b) and
3.12(c)
Form of Watch List O Section 3.12(b) and
3.12(c)
Form of Delinquent Loan P Section 3.12(b) and
Status Report 3.12(c)
Form of Historical Loan Q Section 3.12(b) and
Modification Report 3.12(c)
Form of Historical Loss R Section 3.12(b) and
Estimate Report 3.12(c)
xiii
<PAGE>
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of NOI Adjustment S Section 3.12(b) and
Worksheet 3.12(c)
Form of Operating Statement T Section 3.12(b) and
Analysis 3.12(c)
Form of Loan Payoff U Section 3.12(b) and
Notification Report 3.12(c)
Form of CSSA Loan File Report V Section 4.02(b)
Form of Certificateholder W-1 Section 3.15 and 4.02(b)
Confirmation Certificate
Form of Prospective Purchaser W-2 Section 3.15 and 4.02(b)
Certificate
Form of Lost Note Affidavit X Definition of Mortgage
and Indemnity File
xiv
<PAGE>
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of September 1, 1998, among COMMERCIAL MORTGAGE ACCEPTANCE CORP.,
as Depositor, MIDLAND LOAN SERVICES, INC., as Master Servicer and as Special
Servicer, and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes
(each, a "Class"), which in the aggregate will evidence the entire beneficial
ownership interest in a trust fund (the "Trust Fund") to be created hereunder.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans (other than the Meidinger Tower
Loan), the Meidinger Senior Interest and the respective interest payments
thereon as well as certain other related assets subject to this Agreement as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC I." The Class R-I Certificates will represent the sole
class of "residual interests" in REMIC I for purposes of the REMIC Provisions
under the federal income tax law. Except as provided below, each REMIC I Regular
Interest will relate to a specific Mortgage Loan (or in the case of the
Meidinger Tower Loan, the Meidinger Senior Interest). Each such REMIC I Regular
Interest will have a remittance rate equal to the unmodified Net Mortgage Rate
as of the Cut-Off Date of the Mortgage Loan to which such REMIC I Regular
Interest relates (or in the case of the Meidinger Senior Interest, 7.6%) and an
initial Uncertificated Principal Balance equal to the Cut-Off Date Balance of
the Mortgage Loan to which such REMIC I Regular Interest relates (or in the case
of the Meidinger Tower Loan, equal to the Cut-Off Date Balance of the Meidinger
Senior Interest). None of the REMIC I Regular Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II." The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The REMIC II Remittance Rate with respect to each
Class of the REMIC II Regular Interests will be calculated in accordance with
the definition of "REMIC II Remittance Rate". The initial Uncertificated
Principal Balance of each Class of the REMIC II Regular Interests will equal the
Original Class Principal Balance of the corresponding Class of the REMIC III
Certificates described below. None of the REMIC II Regular Interests will be
certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III". The
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Class R-III Certificates will evidence the sole class of "residual interests" in
REMIC III for purposes of the REMIC Provisions under federal income tax law. For
federal income tax purposes, each Class of the Regular Certificates (other than
the Class X Certificates) and each of the Components of the Class X Certificates
will be designated as a separate "regular interest" in REMIC III for purposes of
the REMIC Provisions under federal income tax law.
The following table sets forth the Class designation of each Class
of the REMIC III Certificates other than the Class X and Class R-III
Certificates, the corresponding REMIC II Regular Interest, the corresponding
Component of the Class X Certificates and the Original Class Principal Balance
for each Class of the Regular Certificates other than the Class X Certificates.
Corresponding
Class of
REMIC II Corresponding
Class Regular Class X Original Class
Designation Interests Component Principal Balance
------------- ------------- ------------- -----------------
Class A-1 M X-A-1 $515,016,000
Class A-2 N X-A-2 $837,749,000
Class A-3 O X-A-3 $671,128,000
Class B P X-B $144,564,000
Class C Q X-C $173,477,000
Class D R X-D $173,476,000
Class E S X-E $ 43,369,000
Class F T X-F $122,880,000
Class G U X-G $ 21,684,000
Class H V X-H $ 36,141,000
Class J W X-J $ 65,054,000
Class K X X-K $ 21,684,000
Class L Y X-L $ 21,685,000
Class M Z X-M $ 43,401,789
The Meidinger Tower Loan, together with certain related assets, is
to be held by the Trustee for federal income tax purposes as a grantor trust
(the "Grantor Trust") under Subpart E, Part I of Subchapter J of the Code (as
defined herein). The Meidinger Tower Senior Interest (as defined herein) will
constitute evidence of a senior interest and the Grantor Trust Certificate will
constitute evidence of a subordinate interest, in the Meidinger Tower Loan and
the other assets of the Grantor Trust. As provided herein, the Trustee shall
take all actions necessary to ensure that the Grantor Trust maintains its status
as a grantor trust under the Code.
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Set forth below is the initial Principal Balance (as defined
herein) and the Pass-Through Rate (as defined herein) for each of the Meidinger
Senior Interest and the Grantor Trust Certificate.
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Initial Principal Balance Pass-Through Rate
------------------------- -----------------
Senior Interest $21,000,000 7.6% per annum
Grantor Trust Certificate $ 6,997,500 variable*
* The Pass-Through Rate for the Grantor Trust Certificate is variable and will
be calculated in accordance with the definition of "Pass -Through Rate" in the
Meidinger Tower Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to any Class of
Regular Certificates (other than the Class X Certificates) for any Distribution
Date, one month's interest at the Pass-Through Rate applicable to such Class of
Certificates, accrued on the related Class Principal Balance outstanding
immediately prior to such Distribution Date and with respect to the Class X
Certificates for any Distribution Date, the sum of Accrued Component Interest
for each of its Components for such Distribution Date. Accrued Certificate
Interest shall be calculated on the basis of a 360-day year consisting of twelve
30-day months.
"Accrued Component Interest": With respect to each Component of the
Class X Certificates for any Distribution Date, one month's interest at the
Pass-Through Rate applicable to such Component for such Distribution Date,
accrued on the Component Notional Amount of such Component outstanding
immediately prior to such Distribution Date. Accrued Component Interest shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
"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
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meaning of Treasury Regulations 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 Interest": With respect to each of the ARD Mortgage
Loans indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such ARD Mortgage Loan at the Additional Interest Rate and any
interest which accrues on such interest at the Revised Rate.
": With respect to each of the ARD Mortgage Loans, the excess of
(i) the applicable Revised Rate over (ii) the applicable Mortgage Rate
immediately prior to the related Anticipated Repayment Date, each as set forth
in the Mortgage Loan Schedule.
"Additional Trust Fund Expense": Any Special Servicing Fees,
Recovery Fees and, in accordance with Sections 3.03(d) and 4.03(d), interest
payable to the Master Servicer and the Trustee on Advances (to the extent not
offset by late charges on the related Mortgage Loan and default interest), as
well as any of the expenses of the Trust Fund that may be withdrawn (x) pursuant
to any of clauses (viii), (x), (xi) and (xii) of Section 3.05(a) out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Certificate Account or (y) pursuant to clause (ii) or any of clauses (iv)
through (vi) of Section 3.05(b) out of general collections on the Mortgage Loans
and any REO Properties on deposit in the Distribution Account; provided, that
for purposes of the allocations contemplated by Section 4.04 no such expense
shall be deemed to have been incurred by the Trust Fund until such time as the
payment thereof is actually made from the Certificate Account or the
Distribution Account, as the case may be.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(i).
"Affiliate": With respect to any specified Person, any other Person
controlling or 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.
"Affiliate": With respect to an ARD Mortgage Loan, the date upon
which such ARD Mortgage Loan commences accruing interest at the Revised Rate.
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"Appraisal": With respect to any Mortgage Loan, an Independent
appraisal of the related Mortgaged Property conducted in accordance with the
standards of the Appraisal Institute by an Independent Appraiser, which
Independent Appraiser shall be advised to take into account the factors
specified in Section 3.18(e), including without limitation, any environmental,
engineering or other third-party reports available, and other factors that a
prudent real estate appraiser would consider.
"Appraisal Reduction Amount": The excess, if any, of (a) the sum
of, as of the Determination Date immediately succeeding the date on which a
Required Appraisal is obtained (without duplication), (i) the Stated Principal
Balance of the subject Required Appraisal Mortgage Loan (or in the case of the
Meidinger Tower Loan, the outstanding principal balance of the Meidinger Senior
Interest), (ii) to the extent not previously advanced by or on behalf of the
Master Servicer or the Trustee, all unpaid interest on the Required Appraisal
Mortgage Loan (or on the Meidinger Senior Interest) through the most recent Due
Date prior to such Determination Date at a per annum rate equal to the related
Net Mortgage Rate (or in the case of Meidinger Tower Loan, the Meidinger Senior
Interest Pass-Through Rate), (iii) all accrued but unpaid Servicing Fees and
Additional Trust Fund Expenses in respect of such Required Appraisal Mortgage
Loan, (iv) all related unreimbursed Advances (plus accrued interest thereon)
made by or on behalf of the Master Servicer or the Trustee with respect to such
Required Appraisal Mortgage Loan and (v) all currently due and unpaid real
estate taxes (net of any amounts escrowed therefor) and assessments, insurance
premiums, and, if applicable, ground rents in respect of the related Mortgaged
Property, over (b) the Required Appraisal Value; provided, that if the related
Required Appraisal Mortgage Loan becomes a Corrected Mortgage Loan, then the
Appraisal Reduction Amount shall be deemed to be zero, unless such Mortgage Loan
again becomes a Required Appraisal Mortgage Loan, and provided further, that
with respect to any Mortgage Loan that becomes a Required Appraisal Mortgage
Loan pursuant to clause (iii) of the definition thereof, the Appraisal Reduction
Amount shall be deemed to exist, notwithstanding such Required Appraisal
Mortgage Loan becoming a Corrected Mortgage Loan, for so long as the terms of
the modification effected pursuant to Section 3.20 are in effect.
"Appraised Value": With respect to each Mortgaged Property, the
appraised value thereof (or with respect to the Meidinger Tower Loan, 75.007% of
the appraised value thereof) based upon the most recent Appraisal (or internal
valuation, if permitted by the terms of this Agreement) or update thereof that
is contained in the related Servicing File.
"ARD Mortgage Loans": The Mortgage Loans noted as such on the
Mortgage Loan Schedule, which Mortgage Loans substantially fully amortize
through their respective remaining terms to maturity, but provide that if the
unamortized principal amount thereof is not repaid on a specified date prior to
maturity set forth in
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the related Mortgage Note, the Mortgage Loan will accrue at a higher interest
rate the collection of which will be limited as hereinafter provided in this
Agreement.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Scheduled Payment": With respect to any Balloon Mortgage
Loan following its Stated Maturity Date (provided that such Mortgage Loan has
not been paid in full on or before such date and no other Liquidation Event has
occurred in respect thereof) and for any subsequent Due Date therefor as of
which such Mortgage Loan remains outstanding and part of the Trust Fund, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Scheduled Payment that would have
been due in respect of such Mortgage Loan on such Due Date if it had been
required to continue to pay in accordance with the amortization schedule in
effect prior to its Stated Maturity Date and without regard to the occurrence of
its Stated Maturity Date. With respect to any REO Loan, for any Due Date
therefor as of which the related REO Property remains part of the Trust Fund,
the scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Scheduled Payment that would have
been due in respect of the predecessor Mortgage Loan on such Due Date had it
remained outstanding (or, if the predecessor Mortgage Loan was a Balloon
Mortgage Loan and such Due Date coincides with or follows what had been its
Stated Maturity Date, the Assumed Scheduled Payment that would have been deemed
due in respect of the predecessor Mortgage Loan on such Due Date had it remained
outstanding).
"Authenticating Agent": Any authenticating agent appointed
pursuant to Section 8.12.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to, without duplication, (a) the sum of (i) the aggregate
of the amounts on deposit in the Certificate Account and the Distribution
Account as of the close of business on the related Determination Date and the
amounts collected by or on behalf of the Master Servicer as of the close of
business on such Determination Date and required to be deposited in the
Certificate Account, (ii) the aggregate amount of any P&I Advances made by the
Master Servicer or the Trustee for distribution on the Certificates on such
Distribution Date pursuant to Section 4.03, (iii) the aggregate amount
transferred from the REO Account (if established) to the Certificate Account on
or prior to the related Determination Date in such month, pursuant to Section
3.16(c), and (iv) the aggregate amount deposited by the Master Servicer in the
Distribution Account for such Distribution Date pursuant to Section 3.19 in
connection with Prepayment Interest Shortfalls, net of (b) the portion of the
amount described in subclauses (a)(i) and (a)(iii) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the
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end of the related Collection Period, (ii) any amounts payable or reimbursable
to any Person from the (A) Certificate Account pursuant to clauses (ii)-(xiv) of
Section 3.05(a) or (B) the Distribution Account pursuant to clauses (ii) -
(viii) of Section 3.05(b), (iii) Prepayment Premiums, and (iv) any amounts
deposited in the Certificate Account or the Distribution Account in error.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Stated Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as
of any date of determination, the Scheduled Payment payable on the Stated
Maturity Date of such Mortgage Loan.
"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.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Kansas City, Missouri,
Minneapolis, Minnesota or Jacksonville, Florida or the cities in which the
Corporate Trust Office of the Trustee or the offices of the Master Servicer (as
of the Closing Date, Columbia, Maryland and Kansas City, Missouri, respectively)
are located, are authorized or obligated by law or executive order to remain
closed.
"CEDEL": Cedel Bank, societe anonyme.
"CERCLA": The Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1998-C2, as executed by the Certificate
Registrar and authenticated and delivered hereunder by the Authenticating
Agent.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "Midland
Loan Services, Inc., as Master Servicer for Norwest Bank Minnesota, National
Association, as Trustee, on behalf of and in trust for the registered holders of
Commercial Mortgage Acceptance Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-C2."
<PAGE>
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"Certificate Factor": With respect to any Class of Sequential Pay
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then current
Class Principal Balance of such Class of Sequential Pay Certificates, as the
case may be, and the denominator of which is the related Original Class
Principal Balance.
"Certificate Notional Amount": The sum of the Component
Notional Amounts with respect to each of the Components.
"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 the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
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 Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a Disqualified
Organization nor a Non-United States Person shall be Holder of a Residual
Certificate for any purpose hereof and, (ii) solely for the purposes of giving
any consent, approval or waiver pursuant to this Agreement that relates to any
of the Depositor, any Mortgage Loan Seller, the Master Servicer, the Special
Servicer, or the Trustee in its respective capacity as such (except with respect
to amendments referred to in Sections 3.20(d) and 11.01 hereof and any consent,
approval or waiver required or permitted to be made by the Majority Subordinate
Certificateholder or Controlling Class Representative), any Certificate
registered in the name of the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, or the Trustee, as the case may be, or any
Certificate registered in the name of any of its Affiliates (other than an
Affiliate of the Special Servicer), shall be deemed not to be outstanding, and
the Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been
obtained. The Certificate Registrar shall be entitled to request and rely upon a
certificate of the Depositor, the Master Servicer or the Special Servicer in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Depository and the Depository Participants, except as
otherwise specified herein; provided,
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however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation. The Grantor
Trust Certificate shall constitute a distinct and separate class of
Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto and evidencing a portion of a "regular interest" in REMIC III
for the purposes of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of
Exhibit A-9 attached hereto,
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and evidencing a portion of a "regular interest" in REMIC III for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class J Certificate": Any of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class K Certificate": Any of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class L Certificate": Any of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class M Certificate": Any of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class Principal Balance": As of the Closing Date, the Class
Principal Balance of each Class of Sequential Pay Certificates shall equal the
Original Class Principal Balance thereof. On each Distribution Date, the Class
Principal Balance of each such Class of Certificates shall be reduced by the
amount of any distributions of principal made thereon on such Distribution Date
pursuant to Section 4.01 or 9.01, as applicable, and shall be further reduced by
the amount of any Realized Losses and Additional Trust Fund Expenses allocated
thereto on such Distribution Date pursuant to Section 4.04(a). Distributions in
respect of a reimbursement of Realized Losses and Additional Trust Fund Expenses
previously allocated to a Class of Sequential Pay Certificates shall not
constitute distributions of principal and shall not result in reduction of the
related Class Principal Balance.
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"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class R-III Certificate": Any one of the Certificates with a
"Class R-III" designation on the face thereof, substantially in the form of
Exhibit A-18 attached hereto, and evidencing the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of the aggregate of the Components,
each of which shall constitute a separate "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Closing Date": September 29, 1998.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing on the day immediately following the Determination Date for
the preceding Distribution Date (or, in the case of the initial Distribution
Date, commencing immediately following the Cut-Off Date) and ending on and
including the related Determination Date.
"Comparative Financial Status Report": A report substantially
containing the content described in Exhibit N attached hereto, setting forth,
among other things, the occupancy, revenue, net operating income and Debt
Service Coverage Ratio for each Mortgage Loan or the related Mortgaged Property,
as of the last day of the calendar month immediately preceding the preparation
of such report, for (i) each of the three immediately preceding monthly periods
(to the extent such information is available), (ii) the most current available
year-to-date, (iii) the previous two full fiscal years, and (iv) the "base year"
(representing the original analysis of information used as of the Cut-Off Date).
For the purposes of the Special Servicer's production of any such report that is
required to state information for any period prior to the Cut-Off Date, the
Special Servicer may conclusively rely (without independent verification),
absent manifest error, on information provided to it by the related Mortgage
Loan Seller.
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"Component": Each of the fourteen Components of the Class X
Certificates, and collectively, the "Components," each evidencing a separate
"regular interest" in REMIC III for purposes of the REMIC Provisions and
corresponding to a Class of Sequential Pay Certificates.
"Component Notional Amount": With respect to each Component and any
Distribution Date, an amount equal to the Class Principal Balance of its
corresponding Class of Sequential Pay Certificates immediately prior to such
Distribution Date.
"Controlling Class": As of any date of determination, the Class of
Sequential Pay Certificates outstanding (a) which bears the latest alphabetical
Class designation and (b) the Class Principal Balance of which is greater than
20% of the Original Class Principal Balance thereof; provided, however, that if
no such Class of Certificates has a Class Principal Balance greater than 20% of
its Original Class Balance, the Controlling Class shall be the Class of
Sequential Pay Certificates bearing the latest alphabetical Class designation.
With respect to determining the Controlling Class, the Class A-1, Class A-2 and
Class A-3 Certificates shall be deemed a single Class of Certificates.
"Controlling Class Representative": As defined in Section 6.09.
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562, Attn: Corporate Trust Services (CMBS) -- CMAC Series
1998-C2.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan".
"Credit Lease": With respect to each Credit Lease Loan, the
lease agreement between the Mortgagor as lessor and the Tenant as lessee of
the related mortgage.
"Credit Lease Loan": Each Mortgage Loan that is identified as a
"Credit Lease Loan" on the Mortgage Loan Schedule.
"CSSA Loan File Report": The monthly report in the "CSSA loan file"
format substantially containing the information called for therein for the
Mortgage Loans, a form of which is attached hereto as Exhibit V.
"CSSA Property File Report": The monthly report in the "CSSA
property file" format containing the information called for therein for each
Mortgaged Property,
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a form of which is attached hereto as Exhibit L, which for each Distribution
Date shall set forth certain information set forth therein as of the end of the
preceding calendar month.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been appointed or
if such custodian has been so appointed, but the Trustee shall have terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-Off Date": September 1, 1998.
"Cut-Off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-Off Date,
after application of all unscheduled payments of principal received on or before
such date and the principal component of all Scheduled Payments due on or before
such date, whether or not received.
"DCR": Duff & Phelps Credit Rating Co. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"DCR" shall be deemed to refer to such other nationally recognized statistical
rating agency or other comparable Person designated by the Depositor, notice of
which designation shall be given in writing to the Trustee, the Master Servicer
and the Special Servicer, and specific ratings of Duff & Phelps Credit Rating
Co. herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan,
as of any date of determination, the ratio of (x) the annualized Net Operating
Income (before payment of any debt service on such Mortgage Loan) generated by
the related Mortgaged Property during the most recently ended period of not less
than six months and not more than twelve months for which financial statements,
if available (whether or not audited), have been received by or on behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) twelve times the
amount of the Monthly Payment in effect for such Mortgage Loan as of such date
of determination.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent
in an amount equal to at least two Monthly Payments (not including the Balloon
Payment) or is delinquent thirty days or more in respect of its Balloon Payment,
in either case such delinquency to be determined without giving effect to any
grace period permitted by the related Mortgage or Mortgage Note and without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note, or (ii) as to which the Master
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Servicer or the Special Servicer has, by written notice to the related
Mortgagor, accelerated the maturity of the indebtedness evidenced by the related
Mortgage Note.
"Defeasance Collateral": With respect to any Defeasance Loan,
the United States Treasury obligations (or obligations guaranteed by the full
faith and credit of the United States) required or permitted to be pledged in
lieu of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance
Loan on the Mortgage Loan Schedule which permits the related Mortgagor to pledge
Defeasance Collateral to the holder of such Mortgage Loan in lieu of prepayment.
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report substantially containing
the content described in Exhibit P attached hereto setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, were
delinquent 30-59 days, delinquent 60-89 days, delinquent 90 days or more,
current but are Specially Serviced Mortgage Loans or were in foreclosure but
were not REO Property.
"Depositor": Commercial Mortgage Acceptance Corp. or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository, for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. 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 Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date,
the tenth day of the month in which such Distribution Date occurs, or if such
tenth day is not a Business Day, the next Business Day.
"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 or lease, the performance of any construction work thereon or any use of
such REO Property in a trade or business conducted by REMIC I other than through
an Independent Contractor;
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provided, however, that the Special Servicer or any Sub-Servicer on behalf of
the Trust Fund, shall not be considered to Directly Operate an REO Property
solely because such Special Servicer or Sub-Servicer 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 the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives 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 on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Trustee or the Certificate Registrar based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates, other than such Person, to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of a Residual Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates for any Distribution Date, the Accrued Certificate Interest
in respect of such Class of Certificates for such Distribution Date, reduced (to
not less than zero) by the product of (i) any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date, multiplied by (ii) a fraction, expressed
as a decimal, the numerator of which is the Accrued Certificate Interest in
respect of such Class of Certificates for such Distribution Date, and the
denominator of which is the aggregate Accrued Certificate Interest in respect of
all the Classes of Regular Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts created
and maintained by the Paying Agent on behalf of the Trustee pursuant to Section
3.04(b) which shall be entitled "Norwest Bank Minnesota, National Association,
as Trustee, in trust for the registered holders of Commercial Mortgage
Acceptance Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-C2."
"Distribution Date": The later of (a) the 15th day of any
month, or if such 15th day is not a Business Day, the Business Day
immediately following and (b) the fourth Business Day following the related
Determination Date, commencing on October 19, 1998.
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"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to
its Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Mortgage Loan had been scheduled to be first due;
provided, however, that with respect to the Meidinger Tower Loan, the date for
each of clauses (i), (ii) and (iii) will be deemed to be the first day of the
month.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company (including the
Trustee), and (a) with respect to deposits held for 30 days or more in such
account, the long-term deposit or unsecured debt obligations of which are rated
"AA" by Standard & Poor's, and "AA" by DCR (if then rated by DCR) or, in each
such case, such lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies, at any time such funds are on deposit therein,
or (b) with respect to deposits held for less than 30 days in such account, the
short-term deposits of which are rated D-1+ by DCR (if then rated by DCR) and
A-1 by Standard & Poor's or, in each such case, such lower rating as will not
result in qualification, downgrading or withdrawal of the ratings then assigned
to the Certificates, as evidenced in writing by the Rating Agencies at any time
such funds are on deposit therein or (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity, which, in the case of a state
chartered depository institution or trust company, is subject to regulations
regarding fiduciary funds on deposit therein substantially similar to 12 CFR ss.
9.10(b), having in either case a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, (a) (i) Chapter 5 of the FNMA Multifamily Guide or
any successor provisions covering the same subject matter, in the case of
Specially Serviced Mortgage Loans as to which the related Mortgaged Property is
a multifamily property, or (ii) the Servicing Standard, in the case of any other
Specially Serviced Mortgage Loans, and (b) the American Society for Testing and
Materials.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
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"Escrow Payment": Any payment received by the Master Servicer or
the Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other items for which an escrow or reserve has been created or a
letter of credit has been obtained in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any
successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO Property (other than
a Mortgage Loan or REO Property, as the case may be, that was purchased by a
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement,
by the Majority Subordinate Certificateholder pursuant to Section 3.18(b), by
the Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by
the Majority Subordinate Certificateholder, the Depositor, the Special Servicer
or the Master Servicer pursuant to Section 9.01) that there has been a recovery
of all Insurance Proceeds, Liquidation Proceeds and other payments or recoveries
that the Special Servicer has determined, in accordance with the Servicing
Standard, will be ultimately recoverable.
"FNMA": Federal National Mortgage Association or any successor.
"Grantor Trust": The "grantor trust" (within the meaning of the
Grantor Trust Provisions) to be maintained hereunder and consisting of the
Grantor Trust Assets.
"Grantor Trust Assets": The Meidinger Tower Loan, all payments
under and proceeds of the Meidinger Tower Loan received after September 1, 1998
(excluding payments of principal and interest due on or before such date), all
documents included in the Mortgage File and the Servicing File, such funds or
assets as from time to time are deposited in the Meidinger Tower Collection
Account, the Meidinger Tower Distribution Account and, if established, the
Meidinger Tower REO Account, and the rights of the Depositor under the
Greenwich/CMAC Mortgage Loan Purchase Agreement, with respect to the Meidinger
Tower Loan.
"Grantor Trust Certificate": The Certificate designated as
"Grantor Trust Certificate", substantially in the form of Exhibit A-19
attached hereto, and evidencing the subordinate interest in the Meidinger
Tower Loan.
"Grantor Trust Provisions": Subpart E of Subchapter J of the Code.
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"Guaranty": With respect to a Credit Lease Loan, a guarantee
agreement executed by an affiliate of the related Tenant that guarantees the
Tenant's obligations under the related Credit Lease.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations now existing or hereafter enacted,
and specifically including, without limitation, asbestos and asbestos-containing
materials, polychlorinated biphenyls ("PCBs"), radon gas, petroleum and
petroleum products and urea formaldehyde and any substances classified as being
"in inventory", "usable work in process" or similar classification which would,
if classified as unusable, be included in the foregoing definition.
"Historical Loan Modification Report": A report substantially
containing the content described in Exhibit Q attached hereto, setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the Determination Date immediately preceding the preparation of such report,
have been modified pursuant to this Agreement (i) during the related Collection
Period and (ii) since the Cut-Off Date, showing the original and the revised
terms thereof.
"Historical Loss Estimate Report": A report substantially containing
the content described in Exhibit R attached hereto, setting forth, among other
things, as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds and expenses relating to each Final Recovery Determination
made, both during the related Collection Period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period, set
forth on a Mortgage Loan-by-Mortgage Loan basis.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary of
Housing and Urban Development pursuant to Section 207 of the National Housing
Act.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer and any and all Affiliates
thereof, (ii) does not have any direct financial interest in or any material
indirect financial interest in any of the Depositor, the Master Servicer, the
Special Servicer or any Affiliate thereof, and (iii) is not connected with the
Depositor, the Master Servicer, the Special Servicer or any Affiliate thereof as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, the Master Servicer, the Special
Servicer or
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any Affiliate thereof merely because such Person is the beneficial owner of 1%
or less of any class of securities issued by the Depositor, the Master Servicer,
the Special Servicer or any Affiliate thereof, as the case may be.
"Independent Appraiser": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal Institute, who is,
if the State in which the subject Mortgaged Property is located certifies or
licenses appraisers, certified or licensed in such State, and who has a minimum
of five years experience in the subject property type and market.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered to the
Trustee), so long as REMIC I does not receive or derive any income from such
Person and provided that the relationship between such Person and REMIC I is at
arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or any other Person upon receipt by the Trustee of an Opinion of
Counsel, which shall be at no expense to the Master Servicer, the Special
Servicer, the Trustee or the Trust Fund, 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, or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
"Initial Pool Balance": The aggregate Cut-Off Date Balance of
the Mortgage Loans.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy, Lease Enhancement Policy
or other insurance policy that is maintained from time to time in respect of
such Mortgage Loan or the related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property, released to the Mortgagor, or any tenants or ground lessors,
as the case may be, pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
<PAGE>
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"Interested Person": The Depositor, the Mortgage Loan Sellers, the
Master Servicer, the Special Servicer, the Trustee, any Holder of a Certificate,
or any Affiliate of any such Person (other than an Affiliate of any Holder of a
Certificate of the Controlling Class).
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the applicable provisions of the Code and Treasury
Regulations promulgated thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than default interest or
late payment fees, whether as payments, Insurance Proceeds, Liquidation Proceeds
or otherwise, which represent late collections of the principal and/or interest
portions of a Scheduled Payment (other than a Balloon Payment) or an Assumed
Scheduled Payment in respect of such Mortgage Loan due or deemed due on a Due
Date in a previous Collection Period, or on a Due Date coinciding with or
preceding the Cut-Off Date, and not previously recovered. With respect to any
REO Loan, all amounts received in connection with the related REO Property
during any Collection Period, whether as Insurance Proceeds, Liquidation
Proceeds, REO Revenues or otherwise, which represent late collections of the
principal and/or interest portions of an Assumed Scheduled Payment in respect of
the predecessor Mortgage Loan or of an Assumed Scheduled Payment in respect of
such REO Loan due or deemed due on a Due Date in a previous Collection Period
and not previously recovered.
"Lease Enhancement Policy": With respect to a Credit Lease Loan, any
non-cancelable residual value insurance policy that insures payment of the
Balloon Payment or credit lease enhancement insurance policy that insures
against certain losses arising out of casualty and/or condemnation of the
related Mortgaged Property.
"Lease Enhancement Policy Issuer": With respect to any Lease
Enhancement Policy, RVI America Insurance Co. or Chubb Custom Insurance
Company together with any assignee, successor or subsequent insurer
thereunder.
"Lease Enhancement Policy Termination Event": With respect to any
Lease Enhancement Policy, any abatement, rescission, cancellation, termination,
contest, legal process, arbitration or disavowal of liability.
"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 a Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase Agreement; or (iv) such Mortgage Loan is purchased by the Majority
Subordinate Certificateholder pursuant to Section 3.18(b), by the Master
Servicer or the Special
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Servicer pursuant to Section 3.18(c) or by the Majority Subordinate
Certificateholder, the Depositor, the Special Servicer or the Master Servicer
pursuant to Section 9.01. With respect to any REO Property (and the related REO
Loan), any of the following events: (i) a Final Recovery Determination is made
with respect to such REO Property; or (ii) such REO Property is purchased by the
Majority Subordinate Certificateholder, the Depositor, the Special Servicer or
the Master Servicer pursuant to Section 9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property by exercise of the power of eminent domain or condemnation, subject,
however, to the rights of any tenants and ground lessors, as the case may be,
and the terms of the related Mortgage; (ii) the liquidation of a Mortgaged
Property or other collateral constituting security for a defaulted Mortgage
Loan, through trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of any portion thereof required to be released to the related
Mortgagor in accordance with applicable law and the terms and conditions of the
related Mortgage Note and Mortgage; (iii) the realization upon any deficiency
judgment obtained against a Mortgagor; (iv) the purchase of a Defaulted Mortgage
Loan by the Majority Subordinate Certificateholder pursuant to Section 3.18(b)
or by the Master Servicer or the Special Servicer pursuant to Section 3.18(c) or
any other sale thereof pursuant to Section 3.18(d); (v) the repurchase of a
Mortgage Loan by a Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase Agreement; or (vi) the purchase of a Mortgage Loan or REO Property by
the Majority Subordinate Certificateholder, the Depositor, the Special Servicer
or the Master Servicer pursuant to Section 9.01.
"Loan Payoff Notification Report": A report substantially containing
the content described in Exhibit U attached hereto setting forth, among other
things for each Mortgage Loan where notice of anticipated payoff has been
received as of the Determination Date immediately preceding the preparation of
such report the control number, the property name, the amount of principal
expected to be paid, the expected date of payment and the estimated amount of
Yield Maintenance Charge or Percentage Premium due.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the then current principal amount of such Mortgage Loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"Majority Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates entitled to greater than 50% of
the Voting Rights allocated to the Controlling Class; provided, however, that if
there is no Holder of Certificates entitled to greater than 50% of the Voting
Rights of such Class, the single Holder of Certificates with the largest
percentage of Voting Rights allocated to such Class. With respect to determining
the Majority Subordinate Certificateholder, the Class A-1,
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Class A-2 and Class A-3 Certificates shall be deemed to be a single Class of
Certificates, with such Voting Rights allocated among the Holders of
Certificates of such Classes in proportion to the respective Certificate
Principal Balances of such Certificates as of such date of determination.
"Master Servicer": Midland Loan Services, Inc., its successor in
interest, or any successor master servicer appointed as herein provided.
"Master Servicing Fee": With respect to each Mortgage Loan and
REO Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan the
per annum rate set forth for such Mortgage Loan under the column "Master
Servicing Fee" on the Mortgage Loan Schedule. The Master Servicing Fee Rate for
the Meidinger Senior Interest shall be .035% per annum.
"Meidinger Distribution Date": As set forth in the Meidinger
Tower Agreement.
"Meidinger Senior Interest": The undivided senior ownership
interest in the Meidinger Tower Loan provided for herein. The Meidinger Senior
Interest shall not be certificated and shall be held by the Trustee as an asset
of REMIC I.
"Meidinger Subordinate Interest": The undivided subordinate
ownership interest in the Meidinger Tower Loan provided for herein that is
evidenced by the Grantor Trust Certificate.
"Meidinger Tower Agreement": The Meidinger Tower Loan Servicing
and Administration Agreement, dated as of September 1, 1998, by and among the
Depositor, the Master Servicer, the Trustee and Starwood Financial Trust.
"Meidinger Tower Loan": The Mortgage Loan secured by the real
property identified on Exhibit B to the Meidinger Tower Agreement and in respect
of which the Grantor Trust is established pursuant to this Agreement.
"Merrill Lynch": Merrill Lynch, Pierce, Fenner & Smith Incorporated
or its successor in interest.
"Monthly Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled monthly payment of principal and interest or interest only
on such Mortgage Loan, including any Balloon Payment, that is actually payable
by the related Mortgagor from time to time under the terms of the related
Mortgage Note (as such terms may be changed or modified in connection with a
bankruptcy or similar proceeding
<PAGE>
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involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20). With respect to the Meidinger Tower Loan, the Monthly Payment shall be
the amounts distributed on behalf of the Meidinger Senior Interest pursuant to
the Meidinger Tower Agreement.
"Mortgage": With respect to any Mortgage Loan, the mortgage,
deed of trust, deed to secure debt or similar instrument that secures the
Mortgage Note and creates a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan (including
the Meidinger Tower Loan), collectively the following documents:
(i) the original executed Mortgage Note, endorsed (without
recourse, representation or warranty, express or implied,
other than the representations and warranties set forth in
the applicable Mortgage Loan Purchase Agreement) in blank or
to the order of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of
Commercial Mortgage Acceptance Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-C2;
(ii) an original or copy of the Mortgage and of any intervening
assignments thereof, in each case with evidence of
recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and of
any intervening assignment thereof, in each case with
evidence of recording indicated thereon (any of which
assignments, to the extent included in a related assignment
of Mortgage, need not be a separate instrument);
(iv) an original executed assignment of (a) the Mortgage, (b) any
related Assignment of Leases (if such item is a document
separate from the Mortgage) and (c) any other recorded
document relating to the Mortgage Loan otherwise included in
the Mortgage File, in each case (y) in favor of Norwest Bank
Minnesota, National Association as trustee for the
registered holders of Commercial Mortgage Acceptance Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1998-C2, or in blank and (z) in recordable form (but for the
insertion of the name of the assignee and any related
recording information which is not yet available to the
Depositor or the applicable Mortgage Loan Seller); provided,
however, that either assignment described in item (b) or (c)
of this clause (iv) to
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the extent included in the related assignment of Mortgage,
need not be a separate instrument;
(v) the original of any other written agreement or document
securing such Mortgage Loan, including, if applicable, any
guaranty of such Mortgage Loan, letter of credit or
instrument or other item of personal property, possession of
which by a secured party is necessary to possess a valid,
perfected, first priority security interest therein,
together with all endorsements thereof necessary to the
enforcement thereof, in each case, in favor of Norwest Bank
Minnesota, National Association, as trustee for the
registered holders of Commercial Mortgage Acceptance Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1998-C2 or in blank;
(vi) an original executed assignment of all unrecorded documents
relating to the Mortgage Loan, in favor of Norwest Bank
Minnesota, National Association, as trustee for the
registered holders of Commercial Mortgage Acceptance Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1998-C2 or in blank, provided, however, that such assignment
may be included in the related assignment of Mortgage and
need not be a separate instrument;
(vii) originals or copies of any written modification agreements
(including assumption, consolidation and substitution
agreements) or waivers in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been
modified or waived, in each case, with evidence of recording
thereon, where appropriate;
(viii) the original or a copy of the policy or certificate of
lender's title insurance, or, if such policy has not been
issued, an irrevocable, binding commitment (which may refer
to a pro forma or specimen title insurance policy) to issue
such title insurance policy;
(ix) any filed copies of any prior UCC Financing Statements (with
filing or recording information noted thereon) in favor of
the originator of such Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the
related Mortgage Loan Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if
there is an effective UCC Financing Statement in favor of
the related Mortgage Loan Seller on record with the
applicable public office for UCC Financing Statements, an
executed original UCC-2 or UCC-3 assignment, as appropriate,
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with respect to each such UCC Financing Statement, in favor
of Norwest Bank Minnesota, National Association, as trustee
for the registered holders of Commercial Mortgage Acceptance
Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-C2 or in blank, and in a form suitable for filing or
recording in the applicable public filing or recording
office (but for the insertion of the name of the assignee
and any related filing or recording information; and
(x) an original or copy of any Ground Lease, Credit Lease, Lease
Enhancement Policy and Guaranty.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clause
(vii) of this definition, shall be deemed to include only such documents to the
extent a Responsible Officer of the Trustee or Custodian has actual knowledge of
their existence; and provided further, that with respect to any document
required to have been recorded, the evidence of which recording has not been
received, a copy of such document certified by the applicable Mortgage Loan
Seller to be a true copy thereof, shall be sufficient, and the evidence of such
recording shall be forwarded to the Trustee after receipt thereof.
"Mortgage Loan": Each of the mortgage loans listed on the Mortgage
Loan Schedule and from time to time held in the Trust Fund. Except with respect
to the Meidinger Tower Loan, as used herein, the term "Mortgage Loan" includes
the related Mortgage Note, Mortgage, any Lease Enhancement Policy and other
security documents contained in the related Mortgage File. Unless otherwise set
forth herein, the term "Mortgage Loan" does not (including for the purposes of
calculating the Purchase Price with respect to the Meidinger Senior Interest)
include the entire Meidinger Tower Loan, but does include the portion of the
Meidinger Tower Loan represented by the Meidinger Senior Interest, which
includes a portion of the related Mortgage Note, Mortgage and other securety
documents contained in the related Mortgage.
"Mortgage Loan Purchase Agreements": Those certain Mortgage Loan
Purchase Agreements, each dated as of September 1, 1998, between the Depositor
and the respective Mortgage Loan Sellers and relating to the transfer of the
related Mortgage Loans to the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of REMIC I, attached hereto as Exhibit B
and in a computer readable format. Such list shall set forth the following
information with respect to each Mortgage Loan:
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(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) of
the related Mortgaged Property;
(iii) the Cut-Off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) the
Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) whether the Mortgage Loan is secured by a Mortgage on a
leasehold interest;
(ix) whether the Mortgage Loan is an ARD Mortgage Loan and if
so, the Anticipated Repayment Date and the Revised Rate;
(x) the Master Servicing Fee Rate;
(xi) the related Mortgage Loan Seller;
(xii) the related Sub-Servicer;
(xiii) whether such Mortgage Loan is a Defeasance Loan;
(xiv) whether the interest accrual method for such Mortgage Loan
is actual/360 or 30/360;
(xv) whether such Mortgage Loan is cross defaulted or cross
collateralized with any other Mortgage Loan;
(xvi) whether such Mortgage Loan is a Credit Lease Loan and if
so, the related Tenant or guarantor of such Credit Lease
Loan; and
(xvii) whether such Mortgage Loan is insured by a Lease
Enhancement Policy and if so whether such policy is a
residual value insurance policy.
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"Mortgage Loan Seller": Each of Merrill Lynch Mortgage Capital
Inc. or its successor in interest, Midland Loan Services, Inc. or its successors
in interest and Greenwich Capital Financial Products, Inc. or its successor in
interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest Rate, at which interest is scheduled (in the absence of a
default) to accrue on such Mortgage Loan from time to time in accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage Loan after its
Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Maturity Date but giving effect
to any modification thereof as contemplated by Section 3.20; and (iii) any REO
Loan, the annualized rate described in clause (i) or (ii), as applicable, above
determined as if the predecessor Mortgage Loan had remained outstanding. With
respect to the Meidinger Senior Interest, 7.6%, which amount is net of the
servicing fee payable to the sub-servicer of the Meidinger Tower Loan.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including without limitation, any Person that has acquired the related Mortgaged
Property and assumed the obligations of the original obligor under the Mortgage
Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to the Certificate Account,
the Servicing Account (if any), the Reserve Account (if any) or the REO Account
(if any) for any Collection Period, the amount, if any, by which the aggregate
of all interest and other income realized during such Collection Period on funds
held in such account, exceeds the aggregate of all losses of principal, if any,
incurred during such Collection Period in connection with the investment of such
funds in accordance with Section 3.06.
"Net Investment Loss": With respect to the Certificate Account,
the Servicing Account (if any), the Reserve Account (if any) or the REO Account
(if any) for
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any Collection Period, the amount by which the aggregate of all losses of
principal, if any, incurred during such Collection Period in connection with the
investment of funds held in such account in accordance with Section 3.06,
exceeds the aggregate of all interest and other income realized during such
Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate minus the sum of the Trustee Fee Rate and the applicable Master
Servicing Fee Rate; provided, that if the related Mortgage Rate has been
modified in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment granted or agreed to by
the Special Servicer pursuant to Section 3.20, the Net Mortgage Rate for such
Mortgage Loan or REO Loan shall be calculated without regard to such event; and
provided further, that if interest in respect of such Mortgage Loan or REO Loan
is not accrued on the basis of a 360-day year consisting of twelve 30-day
months, then, solely for purposes of determining the related REMIC I Remittance
Rate and thereby calculating the Weighted Average Effective REMIC I Remittance
Rate, the REMIC II Remittance Rate and the Pass-Through Rate for each Class of
Sequential Pay Certificates and for each of the Components for any Distribution
Date, such Net Mortgage Rate will, to the extent appropriate, be adjusted from
accrual period to accrual period to compensate for such difference.
"Net Operating Income": As defined in and determined in
accordance with the provisions of Exhibit E-1 attached hereto.
"New Lease": Any lease of REO Property entered into on behalf of
REMIC I, including any lease renewed, modified or extended on behalf of REMIC I
if REMIC I has the right to renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Special
Servicer, substantially containing the content described in Exhibit S attached
hereto, presenting the computations made in accordance with the methodology
described in Exhibit T to "normalize" the full year net operating income and
debt service coverage numbers used in the other reports required by this
Agreement, delivered to the Master Servicer with each annual operating statement
for a Mortgaged Property pursuant to Section 3.12(b).
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of any Mortgage Loan or REO Loan by the Master
Servicer or Trustee, as the case may be, that, as determined by the Master
Servicer or the Trustee in accordance with the Servicing Standard with respect
to such P&I Advance will not be ultimately recoverable from late payments,
Insurance Proceeds or Liquidation Proceeds, or any other recovery on or in
respect of such Mortgage Loan or REO Loan.
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"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Loan by the
Master Servicer, the Special Servicer or Trustee, as the case may be, that, as
determined by the Master Servicer, the Special Servicer or the Trustee in
accordance with the Servicing Standard, will not be ultimately recoverable from
late payments, Insurance Proceeds, Liquidation Proceeds, or any other recovery
on or in respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class R-I, Class R-II, Class R-III or Grantor Trust Certificate.
"Non-United States Person": Any Person other than a United
States Person.
"Officers' Certificate": A certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer, as the case may be,
or by a Responsible Officer of the Trustee.
"Operating Statement Analysis": With respect to each Mortgage
Loan and REO Property, a report substantially containing the content described
in Exhibit T attached hereto.
"Opinion of Counsel": A written opinion of counsel (which counsel
shall be Independent of the Depositor, the Master Servicer and the Special
Servicer) reasonably acceptable to and delivered to the Trustee or the Master
Servicer, as the case may be.
"Original Component Notional Amount": With respect to each
Component, the initial Component Notional Amount thereof as of the Closing Date
equal to the Original Class Principal Balance of the corresponding Class of
Sequential Pay Certificates as of the Closing Date.
"Original Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the initial Class Principal Balance thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security 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.
"Pass-Through Rate": For any Distribution Date, with respect to:
(i) the Class A-1, Class A-2 and Class A-3 Certificates,
5.80%, 6.03% and 6.04%, respectively;
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(ii) the Class B, C, D and E Certificates, the REMIC II
Remittance Rate for such Distribution Date minus 0.97%,
0.78%, 0.34%, and 0%, respectively;
(iii) each of the Class F, G, H, J, K, L and M Certificates,
5.44%;
(iv) Components X-A-1, X-A-2 and X-A-3, the REMIC II Remittance
Rate for such Distribution Date minus 5.80%, 6.03% and
6.04%, respectively (but not less than zero);
(v) Components X-B, X-C, X-D and X-E, 0.97%, 0.78%, 0.34% and
0%, respectively;
(vi) Components X-F, X-G, X-H, X-J, X-K, X-L and X-M, the REMIC
II Remittance Rate for such Distribution Date minus 5.44%
(but not less than zero); and
(vii) the Grantor Trust Certificate, as set forth in the Meidinger
Tower Agreement.
"Paying Agent": The paying agent appointed pursuant to Section 8.13.
If no such paying agent has been appointed or if such paying agent has been so
appointed, but the Trustee shall have terminated such appointment, then the
Trustee shall be the Paying Agent.
"Percentage Interest": With respect to any Sequential Pay
Certificate, a percentage, the numerator of which is the initial Certificate
Principal Balance of such Certificate as of the Closing Date, as specified on
the face thereof, and the denominator of which is the Original Class Principal
Balance of the relevant Class. With respect to any Class X Certificate, a
percentage, the numerator of which is the initial Certificate Notional Amount of
such Certificate as of the Closing Date, as specified on the face thereof, and
the denominator of which is the aggregate Original Class Principal Balances of
the Sequential Pay Certificates. With respect to a Class L Certificate or a
Residual Certificate, the percentage interest in distributions to be made with
respect to the relevant Class, as stated on the face of such Certificate.
"Percentage Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Permitted Investments": Any one or more of the following
obligations or securities having maturities of 365 days or less (including
obligations or securities of the Trustee if otherwise qualifying hereunder):
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(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United
States or any agency or instrumentality thereof, provided
such obligations are backed by the full faith and credit of
the United States. Such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. If
rated, such an obligation should not have an "r" highlighter
affixed to its rating by Standard & Poor's. Interest may
either be fixed or variable. Interest should be tied to a
single interest rate index plus a single fixed spread (if
any), and move proportionately with that index. Such
investments should not be relied upon for a fixed yield;
(ii) repurchase obligations with respect to any security
described in clause (i) above (having original maturities of
not more than 365 days), provided that the short-term
deposit or debt obligations, of the party agreeing to
repurchase such obligations are rated in the highest rating
category of each of DCR and Standard & Poor's or such lower
rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates,
as evidenced in writing by the Rating Agencies. In addition,
any such item should not have an "r" highlighter affixed to
its rating by Standard & Poor's, and its terms should have a
predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either be
fixed or variable, and should be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index. Such investments should not
be relied upon for a fixed yield;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof
(having original maturities of not more than 365 days), the
short-term obligations of which are rated in the highest
rating category of each of DCR and Standard & Poor's or such
lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to
the Certificates, as evidenced in writing by the Rating
Agencies. In addition, any such item should not have an "r"
highlighter affixed to its rating by Standard & Poor's, and
its terms should have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change.
Interest may either be fixed or variable, and should be tied
to a single interest rate index plus a single fixed spread
(if any), and move
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proportionately with that index. Such investments should not
be relied upon for a fixed yield;
(iv) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the
laws of the United States or any state thereof (or if not so
incorporated, the commercial paper is United States Dollar
denominated and amounts payable thereunder are not subject
to any withholding imposed by any non-United States
jurisdiction) which is rated in the highest short-term
unsecured debt rating category of each of DCR and Standard &
Poor's or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the
Rating Agencies. The commercial paper should not have an "r"
highlighter affixed to its rating by Standard & Poor's and
by its terms should have a predetermined fixed dollar amount
of principal due at maturity that cannot vary or change.
Interest may either be fixed or variable. Interest should be
tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index.
Such investments should not be relied upon for a fixed
yield;
(v) units of money market funds rated in the highest rating
category of DCR and AAAm or AAAm-G by Standard & Poor's (or
such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to
the Certificates, as evidenced in writing by the Rating
Agencies) and which seek to maintain a constant net asset
value;
(vi) any other obligation or security, the investment in which,
would not result in a downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates,
as confirmed in writing by each Rating Agency to the Master
Servicer, the Special Servicer and the Trustee;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) that no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity.
"Permitted Transferee": Any Transferee of a Residual Certificate
other than a Disqualified Organization or Non-United States Person.
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"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee pursuant to Section 4.03(a) and (b).
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I, REMIC II or REMIC III, the Holder of Certificates with the largest
Percentage Interest of the related Class of Residual Certificates.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus Supplement), except each ARD Mortgage Loan is assumed to be paid in
full on its Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan following
such Mortgage Loan's Due Date in such Collection Period, the amount of interest
(net of the related Trustee Fee and Master Servicing Fee) accrued on the amount
of such Principal Prepayment during the period from and after such Due Date, to
the extent collected that exceeds the amount of interest (net of the related
Trustee Fee and Master Servicing Fee and without regard to any Prepayment
Premium collected) that would have been collected on the Mortgage Loan during
such Collection Period if the borrower had not prepaid.
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
(other than a Specially Serviced Mortgage Loan) that was subject to a Principal
Prepayment in full or in part during any Collection Period, which Principal
Prepayment was applied to such Mortgage Loan prior to such Mortgage Loan's Due
Date in such Collection Period, the amount of interest (excluding Additional
Interest and net of the Master Servicing Fee), to the extent not collected from
the related Mortgagor (without regard to any Prepayment Premium that may have
been collected), that would have accrued at a rate per annum equal to the sum of
(x) the Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate on
the amount of such Principal Prepayment during the period commencing on the date
as of which such Principal Prepayment was applied to such Mortgage Loan and
ending on the day immediately preceding such Due Date, inclusive.
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"Prepayment Premium": Any Yield Maintenance Charge or Percentage
Premium paid or payable, as the context requires, by a Mortgagor (or distributed
with respect to the Meidinger Senior Interest) in connection with a Principal
Prepayment.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate," then the
Master Servicer shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Master Servicer shall select a comparable interest rate index. In
either case, such selection shall be made by the Master Servicer in its sole
discretion and the Master Servicer shall notify the Trustee and the Special
Servicer in writing of its selection.
"Principal Distribution Amount": With respect to any
Distribution Date, the sum of:
(a) the aggregate of the principal portions of all Scheduled
Payments (other than Balloon Payments) due (to the extent received
or advanced) and any Assumed Scheduled Payments deemed due in
respect of the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period;
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period (including any
Remaining Cash Flow);
(c) with respect to any Mortgage Loan as to which the related
Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (exclusive of any
amounts described in clause (d) below) made by or on behalf of the
related Mortgagor during the related Collection Period (including
any Balloon Payment), net of any portion of such payment that
represents a recovery of the principal portion of any Scheduled
Payment (other than a Balloon Payment) due, or the principal portion
of any Assumed Scheduled Payment deemed due, in respect of such
Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered;
(d) the aggregate of all Liquidation Proceeds and Insurance
Proceeds that were received on the Mortgage Loans during the related
Collection Period and that were identified and applied by the Master
Servicer as recoveries of principal of such Mortgage Loans, in each
case net of any portion of such amounts that represents a recovery
of the principal portion of any Scheduled Payment (other than a
Balloon Payment) due, or of the
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principal portion of any Assumed Scheduled Payment deemed due, in
respect of the related Mortgage Loan on a Due Date during or prior
to the related Collection Period and not previously recovered;
(e) with respect to any REO Properties, the aggregate of the
principal portions of all Assumed Scheduled Payments (to the extent
received or advanced) in respect of the related REO Loans for their
respective Due Dates occurring during the related Collection Period;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO Properties
and that were identified and applied by the Master Servicer and/or
Special Servicer as recoveries of principal of the related REO
Loans, in each case net of any portion of such amounts that
represents a recovery of the principal portion of any Scheduled
Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Scheduled Payment deemed due, in respect of
the related REO Loan or the predecessor Mortgage Loan on a Due Date
during or prior to the related Collection Period and not previously
recovered; and
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution
Amount for the immediately preceding Distribution Date, over the
aggregate distributions of principal made on the Certificates on
such immediately preceding Distribution Date pursuant to Section
4.01.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date; and provided that it shall not include a payment of principal that is
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.
"Privileged Person": As defined in Section 4.02(b).
"Prospectus": The prospectus dated September 9, 1998, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement": The prospectus supplement dated
September 23, 1998, relating to the Registered Certificates.
"Purchase Price": With respect to any Mortgage Loan to be
purchased or substituted by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement, purchased by the Majority Subordinate
Certificateholder pursuant to Section 3.18(b), purchased by the Master
Servicer or the Special Servicer pursuant to Section
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3.18(c) or purchased by the Majority Subordinate Certificateholder, the
Depositor, the Special Servicer or the Master Servicer pursuant to Section 9.01
or to be otherwise sold pursuant to Section 3.18(d), a cash price equal to the
outstanding principal balance of such Mortgage Loan as of the date of purchase
or substitution, together with (a) all accrued and unpaid interest on such
Mortgage Loan at the related Mortgage Rate to but not including the Due Date in
the Collection Period of purchase or substitution plus any accrued interest on
P&I Advances at the applicable Reimbursement Rate, (b) all related and
unreimbursed Servicing Advances plus any accrued interest thereon at the
applicable Reimbursement Rate, (c) any reasonable costs and expenses incurred by
the Trust Fund in connection with any such purchase or substitution by a
Mortgage Loan Seller and (d) any other unreimbursed Additional Trust Fund
Expenses (to the extent not covered in items (a), (b) or (c) of this definition)
in respect of such Mortgage Loan (except that Additional Trust Fund Expenses in
respect of such Mortgage Loan allocable to any Class of Certificates owned by
the Majority Subordinate Certificateholder shall not be included in the Purchase
Price with respect to a purchase made by the Majority Subordinate
Certificateholder pursuant to Section 3.18(b) or Section 9.01); provided, that
the Purchase Price shall not be reduced by any outstanding P&I Advance.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as
the deleted Mortgage Loan; (iv) accrue interest on the same basis as the deleted
Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve
30-day months); (v) have a remaining term to stated maturity not greater than,
and not more than two years less than, the remaining term to stated maturity of
the deleted Mortgage Loan; (vi) have an original Loan-to-Value Ratio not higher
than that of the deleted Mortgage Loan and a current Loan-to-Value Ratio not
higher than the then current Loan-to-Value Ratio of the deleted Mortgage Loan;
(vii) comply as of the date of substitution with all of the representations and
warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii)
have an environmental report with respect to the related Mortgaged Property
which will be delivered as a part of the related Mortgage File; (ix) have an
original Debt Service Coverage Ratio of not less than the original Debt Service
Coverage Ratio of the deleted Mortgage Loan and a current Debt Service Coverage
Ratio of not less than the current Debt Service Coverage Ratio of the deleted
Mortgage Loan; (x) at the Trustee's request, be determined by an Opinion of
Counsel to be a "qualified replacement mortgage" within the meaning of Section
860G(a)(4) of the Code; (xi) not have a maturity date after the date three years
prior to the Rated Final Distribution Date; (xii) not be substituted for a
deleted Mortgage Loan unless the Trustee
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has received prior confirmation in writing by each Rating Agency that such
substitution will not result in the withdrawal, downgrade, or qualification of
the rating assigned by the Rating Agency to any Class of Certificates then rated
by the Rating Agency (the cost, if any, of obtaining such confirmation to be
paid by the applicable Mortgage Loan Seller); (xiii) have a date of origination
that is not more than 12 months prior to the date of substitution; (xiv) not be
substituted for a deleted Mortgage Loan if it would result in the termination of
the REMIC status of any of the REMICs established under this Agreement or the
imposition of tax on any of such REMICs other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement and (xv)
have been approved by the Controlling Class Representative; provided, that the
Controlling Class Representative shall cease to have the right to approve the
substitution of a Qualified Substitute Mortgage Loan for a deleted Mortgage Loan
after the aggregate of the Stated Principal Balances of all Qualified Substitute
Mortgage Loans which were previously substituted for deleted Mortgage Loans
exceeds 10% of the Initial Pool Balance (provided, however, that such approval
of the Controlling Class Representative may not be unreasonably withheld, as
determined by the Special Servicer). In the event that one or more mortgage
loans are substituted for one or more deleted Mortgage Loans, then the amounts
described in clause (i) shall be determined on the basis of aggregate principal
balances and the rates described in clause (ii) above and the remaining term to
stated maturity referred to in clause (v) above shall be determined on a
weighted average basis. When a Qualified Substitute Mortgage Loan is substituted
for a deleted Mortgage Loan, the applicable Mortgage Loan Seller shall certify
that such Mortgage Loan meets all of the requirements of the above definition
and shall send such certification to the Trustee.
"Rated Final Distribution Date": Solely for purposes of satisfying
Treasury Regulations Section 1.860G-1(a)(4)(iii) and with respect to (i) each
REMIC I Regular Interest, (ii) each REMIC II Regular Interest, (iii) each Class
of Regular Certificates (other than the Class X Certificates) and (iv) each
Component, September 15, 2030.
"Rating Agency": Each of DCR and Standard & Poor's.
"Realized Loss": With respect to: (1) each Defaulted Mortgage Loan
as to which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to (a) the
unpaid principal balance of such Mortgage Loan or REO Loan, as the case may be,
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or REO Loan, as the case may be, at the related
Mortgage Rate to but not including the Due Date in the Collection Period in
which the Final Recovery Determination was made, plus (c) any related
unreimbursed Servicing Advances as of the commencement of the Collection Period
in which the Final Recovery Determination was made, together with any new
related Servicing Advances made during such Collection Period, minus (d) all
payments and proceeds, if any, received in
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respect of such Mortgage Loan or REO Loan, as the case may be, during the
Collection Period in which such Final Recovery Determination was made; (2) each
Defaulted Mortgage Loan as to which any portion of the principal or previously
accrued interest payable thereunder was canceled in connection with a bankruptcy
or similar proceeding involving the related Mortgagor or a modification, waiver
or amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20, the amount of such principal or interest so canceled;
provided, that such amount shall not include interest which is capitalized or
for which other arrangement has been made to recover such interest in the
future; and (3) each Mortgage Loan as to which the Mortgage Rate thereon has
been permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor (and for which
no arrangement has been made for recapture of such amount in any form) or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Special Servicer pursuant to Section 3.20, the amount of the consequent
reduction in the interest portion of each successive Monthly Payment due
thereon. Each such Realized Loss determined pursuant to clause (3) above shall
be deemed to have been incurred on the Due Date for each affected Monthly
Payment.
"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.
"Recovery Fee": With respect to each Specially Serviced Mortgage
Loan, Corrected Mortgage Loan and REO Loan, the fee payable to the Special
Servicer out of certain related recoveries pursuant to the second paragraph of
Section 3.11(c).
"Registered Certificate": Any Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E or Class X Certificate.
"Regular Certificate": Any REMIC III Certificate other than
a Class R-III Certificate.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and on P&I
Advances in accordance with Section 4.03(d), which rate per annum is equal to
the Prime Rate.
"Remaining Cash Flow": With respect to an ARD Mortgage Loan, all
monthly cash flow generated by the related Mortgaged Property in excess of (i)
the Scheduled Payment for a particular Due Date and (ii) operating expenses and
certain other expenses set forth in the related Mortgage Note.
"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 primary trust created hereby and to be administered
hereunder with respect to which a
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separate REMIC election is to be made and, consisting of: (i) the Mortgage Loans
as from time to time are subject to this Agreement and all payments under and
proceeds of such Mortgage Loans received (excluding (X) payments of principal
and interest due, and principal prepayments received, on or before the Cut-Off
Date, (Y) any interest payable on the Mortgage Loans which is attributable to
any portion of a Servicing Fee that is deemed to be in excess of the amount
which constitutes reasonable servicing compensation within the meaning of the
REMIC Provisions, and (Z) the Reserve Funds in the Reserve Accounts), together
with all documents included in the related Mortgage Files and any Escrow
Payments; (ii) any REO Property acquired in respect of a Mortgage Loan; (iii)
such funds or assets as from time to time are deposited in the Certificate
Account, the Distribution Account and, if established, the REO Account (other
than amounts excluded pursuant to clause (i) above); and (iv) the rights of the
Depositor under each of the Mortgage Loan Purchase Agreements.
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest, the Net Mortgage Rate as of the Cut-Off Date for the related Mortgage
Loan (or any successor REO Loan) to which such REMIC I Regular Interest relates.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests conveyed in trust to the Trustee for the benefit of
REMIC III, as holder of the REMIC II Regular Interests, and the Holders of the
Class R-II Certificates pursuant to Section 2.06, with respect to which a
separate REMIC election is to be made.
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
"regular interest" in REMIC II. Each REMIC II Regular Interest shall accrue
interest at the REMIC II Remittance Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto. The designations for
the respective REMIC II Regular Interests are set forth in the Preliminary
Statement hereto.
"REMIC II Remittance Rate": With respect to each REMIC II Regular
Interest for any Distribution Date, the Weighted Average Effective REMIC I
Remittance Rate for such Distribution Date.
"REMIC III": The segregated pool of assets consisting of all of the
REMIC II Regular Interests conveyed in trust to the Trustee for the benefit of
the Holders of the REMIC III Certificates pursuant to Section 2.08, with respect
to which a separate REMIC election is to be made.
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"REMIC III Certificate": Any Class A-1, Class A-2, Class A-3, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class X or Class R-III Certificate.
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC Provisions": Provisions of the federal income tax law relat-
ing 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 published
rulings, notices and announcements promulgated thereunder, as the foregoing may
be in effect from time to time.
"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": A segregated account or accounts created and main-
tained by the Special Servicer pursuant to Section 3.16 on behalf of the Trustee
in trust for the Certificateholders, which shall be entitled "Midland Loan
Services, Inc., as Special Servicer, in trust for Holders of Commercial Mortgage
Acceptance Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-C2".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Distribution": The sale or other disposition of any REO
Property pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
provide for monthly payments of principal and/or interest equal to its Assumed
Scheduled Payment and otherwise to have the same terms and conditions as its
predecessor Mortgage Loan (such terms and conditions to be applied without
regard to the default on such predecessor Mortgage Loan). Each REO Loan shall be
deemed to have an initial unpaid principal balance and Stated Principal Balance
equal to the unpaid principal balance and Stated Principal Balance,
respectively, of its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All Scheduled Payments (other than a Balloon Payment), Assumed
Scheduled Payments (in the case of a Balloon Mortgage Loan delinquent in respect
of its Balloon Payment) and other amounts due and owing, or deemed to be due and
owing, in respect of the predecessor Mortgage Loan as of the date of the related
REO Acquisition, shall be deemed to continue to be due and owing in respect of
an REO Loan. Collections in respect of each REO Loan
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(after provision for amounts to be applied to the payment of, or to be
reimbursed to the Master Servicer, the Special Servicer or the Trustee, for the
payment of, the costs of operating, managing and maintaining the related REO
Property or for the reimbursement to the Master Servicer, the Special Servicer
or the Trustee for other related Servicing Advances) shall be treated: first, as
a recovery of accrued and unpaid interest on such REO Loan at the related
Mortgage Rate to but not including the Due Date in the Collection Period of
receipt; second, as a recovery of principal of such REO Loan to the extent of
its entire unpaid principal balance; and third, in accordance with the normal
servicing practices of the Master Servicer, as a recovery of any other amounts
due and owing in respect of such REO Loan. Notwithstanding the foregoing, all
amounts payable or reimbursable to the Master Servicer, the Special Servicer or
the Trustee in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Servicing
Fees and any unreimbursed Servicing Advances and P&I Advances, together with any
interest accrued and payable to the Master Servicer or the Trustee in respect of
such Servicing Advances and P&I Advances in accordance with Sections 3.03(d) and
4.03(d), shall continue to be payable or reimbursable to the Master Servicer or
the Trustee, as the case may be, in respect of an REO Loan pursuant to Section
3.05(a).
"REO Property": A Mortgaged Property acquired on behalf of the Trust
Fund in the name of the Trustee for the benefit of the Certificateholders
through foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived
from the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a).
"REO Status Report": A report substantially containing the content
described in Exhibit N attached hereto, setting forth, among other things, with
respect to each REO Property that was included in the Trust Fund as of the close
of business on the Determination Date immediately preceding the preparation of
such report, (i) the acquisition date of such REO Property, (ii) the amount of
income collected with respect to such REO Property (net of related expenses) and
other amounts, if any, received on such REO Property during the related
Collection Period and (iii) the value of the REO Property based on the most
recent appraisal or other valuation thereof available to the Special Servicer as
of such Determination Date (including any prepared internally by the Special
Servicer).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
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"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an Independent appraisal of the related Mortgaged Property
prepared in accordance with 12 CFR ss.225.62 and conducted in accordance with
the standards of the Appraisal Institute from an Independent Appraiser selected
by the Special Servicer or, with respect to any Required Appraisal Mortgage Loan
with an outstanding Stated Principal Balance equal to or less than $1,500,000,
an internal property valuation performed by the Special Servicer at its
discretion in accordance with the Servicing Standard.
"Required Appraisal Mortgage Loan":Each Mortgage Loan including the
Meidinger Tower Loan) (i) that is one hundred twenty (120) days or more
delinquent in respect of any Monthly Payments, (ii) that is an REO Loan as to
which the related REO Property is acquired on behalf of the Trust Fund, (iii)
that has been modified by the Special Servicer to reduce the amount of any
Monthly Payment, other than a Balloon Payment, (iv) with respect to which sixty
days elapse after a receiver is appointed and continues in such capacity in
respect of the related Mortgaged Property, (v) with respect to which sixty days
elapse after a Mortgagor of which shall have filed a petition or been subjected
to the appointment of a conservator or receiver or liquidator in any insolvency
or related proceeding, (vi) a Balloon Payment with respect to which is due and
has not been paid on its Stated Maturity Date, or (vii) with respect to which a
date has passed which is the third anniversary of the date on which an extension
of the Stated Maturity Date of such Mortgage Loan became effective as a result
of a modification of such Mortgage Loan by the Special Servicer, which extension
does not change the amount of Monthly Payments on the Mortgage Loan.
"Required Appraisal Value": An amount equal to 90% of the Appraised
Value (net of any prior liens and estimated liquidation expenses) of the
Mortgaged Property related to the subject Required Appraisal Mortgage Loan as
determined by a Required Appraisal or any letter update of such Required
Appraisal; and provided further that for purposes of determining any Appraisal
Reduction Amount in respect of such Required Appraisal Mortgage Loan, such
Appraisal Reduction Amount shall be amended annually to reflect the Required
Appraisal Value determined pursuant to any Required Appraisal or letter update
of a Required Appraisal conducted subsequent to the original Required Appraisal
performed pursuant to Section 3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for repairs and/or capital improvements to the
related Mortgaged Property.
"Residual Certificate": A Class R-I, Class R-II or Class R-III
Certificate.
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"Responsible Officer": When used with respect to the Trustee, any
officer or assistant officer in the Corporate Trust Department of the Trustee or
any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers to
whom a particular matter is referred by the Trustee because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Servicer Reports":
(i) "Servicer Watch List" prepared by the Master Server identifying
each Mortgage Loan that is not a Specially Serviced Mortgage Loan (a) with
a Debt Service Coverage Ratio of less than 1.10x, (b) that has a Stated
Maturity Date occurring in the next sixty days, (c) that is delinquent in
respect of its real estate taxes, (d) for which any outstanding Advances
exist, (e) that has been a Specially Serviced Mortgage Loan in the past 90
days, (f) for which the Debt Service Coverage Ratio has decreased by more
than 10% in the prior 12 months, (g) for which any lease relating to more
than 25% of the related Mortgage Property has expired, been terminated, is
in default or will expire within the next three months, (h) that is late
in making its Monthly Payment three or more times in the preceding 12
months, (i) with material deferred maintenance at the related Mortgage
Property or (j) that is 30 or more days delinquent;
(ii) "Operating Statement Analysis Report" together with copies of
the operating statements and rent rolls (but only to the extent the
related borrower is required by the Mortgage to deliver, or otherwise
agrees to provide, such information). The Special Servicer is required
consistent with the servicing standards described herein to endeavor to
obtain such operating statements and rent rolls;
(iii) With respect to any Mortgaged Property or REO Property, an
"NOI Adjustment Worksheet" presenting the computations to "normalize" the
full year net operating income and debt service coverage numbers used by
the Special Servicer in the other reports referenced above; and
(iv) "Comparative Financial Status Report" setting forth, among
other things, the occupancy, revenue, net operating income and Debt
Service Coverage Ratio for each Mortgaged Loan or the Related Mortgaged
Property, as applicable, as of the end of the calendar month immediately
preceding the preparation of such report for each of the following three
periods (to the extent such information is in the Special Servicer's
possession); (a) the most current available year-to-date, (b) each of the
previous two full fiscal years stated separately; and (c) the "base year"
(representing the original analysis of information used as of the Cut-Off
Date).
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"Revised Rate": With respect to an ARD Mortgage Loan, the increased
interest rate after the Anticipated Repayment Date (in the absence of a default)
for such ARD Mortgage Loan, as calculated and as set forth in the related
Mortgage Loan documents.
"Scheduled Payment": With respect to any Mortgage Loan (other
than the Meidinger Senior Interest), for any Due Date following the Cut-Off Date
as of which it is outstanding, the scheduled monthly payment of principal and
interest on such Mortgage Loan that is or would be, as the case may be, payable
by the related Mortgagor on such Due Date under the terms of the related
Mortgage Note as in effect on the Closing Date, but without regard to (i) any
subsequent change in or modification of such terms in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Special Servicer pursuant to Section 3.20, or (ii) the application of any
Remaining Cash Flow with respect to an ARD Mortgage Loan, and assuming that each
prior Scheduled Payment has been made in a timely manner. With respect to the
Meidinger Senior Interest, the amount distributed thereon on any Meidinger
Distribution Date.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3 or Class
X Certificate.
"Sequential Pay Certificate": Any Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L or Class M Certificates.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by or on behalf of the Master Servicer,
Special Servicer or the Trustee (to the extent not reimbursed by the Master
Servicer) in connection with the servicing of a Mortgage Loan, or in connection
with the administration of any REO Property, including, but not limited to, the
cost of (a) compliance with the obligations of the Master Servicer set forth in
Section 3.03(c), (b) the preservation, insurance, restoration, protection and
management of a Mortgaged Property, including the cost of any "forced placed"
insurance policy purchased by the Master Servicer to the extent such cost is
allocable to a particular Mortgaged Property that the Master Servicer or the
Special Servicer is required to cause to be insured pursuant to Section 3.07(a),
(c) obtaining any Insurance Proceeds or any Liquidation Proceeds of the nature
described in clauses (i)-(v) of the definition of "Liquidation Proceeds," (d)
any enforcement or judicial proceedings with respect to a Mortgaged
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Property, including, without limitation, foreclosures, (e) any Required
Appraisal or other appraisal, (f) the operation, management, maintenance and
liquidation of any REO Property, including, without limitation, appraisals and
(g) compliance with the obligations of the Master Servicer or the Trustee set
forth in Section 2.03(a). Notwithstanding anything to the contrary, "Servicing
Advances" shall not include allocable overhead of the Master Servicer or the
Special Servicer, which shall include costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses.
"Servicing Fee": The Master Servicing Fee and the Special Servicing
Fee.
"Servicing File": With respect to any Mortgage Loan, (a) copies of
any documents required to be a part of the related Mortgage File and (b) any
documents (other than documents required to be part of the related Mortgage
File) relating to the origination and servicing of any Mortgage Loan, including
appraisals, surveys, engineering reports and environmental reports.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, the servicing and administration of the Mortgage Loans for
which it is responsible hereunder (a) in the same manner in which, and with the
same care, skill, prudence and diligence with which, the Master Servicer or the
Special Servicer, as the case may be, services and administers similar mortgage
loans with similar borrowers (i) for other third-party portfolios, giving due
consideration to customary and usual standards of practice of prudent
institutional commercial mortgage lenders servicing their own loans or (ii) held
in its own portfolio, whichever standard is higher, (b) exercising reasonable
business judgment and acting in accordance with applicable law and the terms of
the related Mortgage Loans and with a view to the maximization of the recovery
on such Mortgage Loan on a net present value basis, and (c) without regard to
(i) any relationship that the Master Servicer or the Special Servicer, as the
case may be, or any Affiliate thereof may have with the related Mortgagor, the
Depositor or any other party to the transaction; (ii) the ownership of any
Certificate by the Master Servicer or the Special Servicer, as the case may be,
or by any Affiliate thereof; (iii) the right of the Master Servicer or the
Special Servicer, as the case may be, to receive compensation or other fees for
its services rendered pursuant to this Agreement; (iv) the obligations of the
Master Servicer to make Advances; (v) the ownership, servicing or management for
others of any other mortgage loans or mortgaged property; and (vi) any
repurchase obligations pursuant to the applicable Mortgage Loan Purchase
Agreement.
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"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates evidencing a $1,000
denomination.
"Special Servicer": Midland Loan Services, Inc., its successor in
interest, or any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.35% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events have occurred:
(a) the related Mortgagor shall have (x) failed to make any
Monthly Payment, which failure continues unremedied for 45
days (or, in the case of a Balloon Payment, if the Master
Servicer receives written evidence from an institutional
lender of such lender's commitment to refinance such
Mortgage Loan and the related Mortgagor continues to make
monthly payments of principal and interest in an amount at
least equal to the Monthly Payment due on the Due Date
immediately preceding the scheduled maturity date, such
longer period (not to exceed 120 days) within which such
refinancing will occur), or (y) if the Master Servicer or
any of its Affiliates owns an economic interest in such
Mortgage Loan (other than indirectly as a
Certificateholder) or such Mortgagor, failed to make any
Monthly Payment on or before the related P&I Advance Date;
or
(b) the Master Servicer shall have determined, in its good faith
reasonable judgment, based on communications with the
related Mortgagor, that a default in making a Monthly
Payment is likely to occur within 30 days and is likely to
remain unremedied for at least 60 days (or, in the case of a
Balloon Payment, if the Master Servicer has received written
evidence from an institutional lender of such lender's
commitment to refinance such Mortgage Loan and if the Master
Servicer reasonably expects the related Mortgagor to
continue to make monthly payments of principal and interest
in an amount at least equal to the Monthly Payment due on
the Due Date
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immediately preceding the scheduled maturity date, such longer
period (not to exceed 120 days) within which such refinancing
will occur); or
(c) there shall have occurred a default (other than as described
in clause (a) above) under the related Mortgage Loan documents
that in the good faith reasonable judgment of the Master
Servicer materially impairs the value of the Mortgaged
Property as security for the Mortgage Loan or otherwise
materially adversely affects the interests of
Certificateholders and that continues unremedied for the
applicable grace period under the terms of the Mortgage Loan
(or, if no grace period is specified, for 30 days); or
(d) 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, marshaling 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
(e) the related Mortgagor shall have consented to (or otherwise
have been subjected to) the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar
proceedings of or relating to such Mortgagor or of or relating
to all or substantially all of its property; or
(f) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, 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; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with
respect to the related Mortgaged Property; or
(h) such Mortgage Loan is a Required Appraisal Mortgage Loan;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
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(w) with respect to the circumstances described in clause (a)
above, when the related Mortgagor has brought the Mortgage
Loan current and has made three consecutive full and timely
Monthly Payments under the terms of such Mortgage Loan (as
such terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, waiver or amendment
granted or agreed to by the Special Servicer pursuant to
Section 3.20);
(x) with respect to the circumstances described in clauses (b),
(d), (e), (f) and (h) above, when such circumstances cease to
exist in the good faith reasonable judgment of the Special
Servicer, but, with respect to any bankruptcy or insolvency
proceedings described in clauses (d), (e) and (f), no later
than 5 days following the entry of an order or decree
dismissing such proceeding;
(y) with respect to the circumstances described in clause (c)
above, when such default is cured; and
(z) with respect to the circumstances described in clause (g)
above, when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (h)
above exists that would cause the Mortgage Loan to continue to be characterized
as a Specially Serviced Mortgage Loan.
"Standard & Poor's": Standard & Poor's Ratings Services, a division
of The McGraw-Hill Companies, Inc., or its successor in interest. If neither
such rating agency nor any successor remains in existence, "Standard & Poor's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given in writing to the Trustee, the Master Servicer and
the Special Servicer, and specific ratings of Standard & Poor's Ratings Services
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Startup Day": With respect to each of REMIC I, REMIC II and REMIC
III, the day designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by any states of Delaware,
Missouri, Minnesota and New York and by any other state or local taxing
authorities as may, by notice to the Trustee, assert jurisdiction over the trust
fund or any portion thereof, or which, according to an Opinion of Counsel
addressed to the Trustee, have such jurisdiction.
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"Stated Maturity Date": With respect to any Mortgage Loan (other
than the Meidinger Senior Interest), the Due Date specified in the Mortgage Note
(as in effect on the Closing Date) on which the last payment of principal is due
and payable under the terms of the Mortgage Note (as in effect on the Closing
Date), without regard to any change in or modification of such terms in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Special Servicer pursuant to Section 3.20. With respect to
the Meidinger Senior Interest, the Final Distribution Date, as set forth in the
Meidinger Tower Agreement.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), the Cut-Off Date Balance of such Mortgage Loan (or, in
the case of a Qualified Substitute Mortgage Loan, the unpaid principal balance
after application of all principal payments due on or before the related date of
substitution, whether or not received), as reduced on each Distribution Date (to
not less than zero) by (i) all payments (or advances in lieu thereof) and other
collections of principal of such Mortgage Loan (or successor REO Loan) that are
due or received, as the case may be, during the related Collection Period and
distributed to Certificateholders on such Distribution Date, and (ii) the
principal portion of any Realized Loss incurred in respect of such Mortgage Loan
(or successor REO Loan) during the related Collection Period for such
Distribution Date. Notwithstanding the foregoing, if a Liquidation Event occurs
in respect of any Mortgage Loan or REO Property, then the "Stated Principal
Balance" of such Mortgage Loan or of the related REO Loan, as the case may be,
shall be zero commencing as of the Distribution Date in the Collection Period
next following the Collection Period in which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L or Class M Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or
the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement: The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22. The Meidinger Tower Agreement shall not be a
"Sub-Servicing Agreement."
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(a) hereof, an amount equal to the difference between
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution and the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan as of the date of substitution. In the event that one
or more Qualified Substitute Mortgage Loans are substituted (at the same time)
for one or more deleted Mortgage Loans, the
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Substitution Shortfall Amount shall be determined as provided in the preceding
sentence on the basis of the aggregate Purchase Prices of the Mortgage Loan or
Loans being replaced and the aggregate Stated Principal Balances of the related
Qualified Substitute Mortgage Loan or Loans.
"Tax Matters Person": With respect to each of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury Regulations Section 1.860F-4(d) and Temporary
Treasury Regulations Section 301.6231(a)(7)-1T, which Person shall be the
applicable Plurality Residual Certificateholder.
"Tax Returns": With respect to (i) each of the REMICs created
hereunder, 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 each of REMIC I, REMIC II and REMIC III due to its classification as a
REMIC under the REMIC Provisions and (ii) the federal income tax return to be
filed on behalf of the Grantor Trust due to its classification as a grantor
trust under the Grantor Trust Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Holders or filed with the Internal Revenue Service under any applicable
provisions of federal tax law or any other governmental taxing authority under
applicable state and local tax law, together, in each case, 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 under any
applicable provisions of federal tax law or any other governmental taxing
authority under applicable State and Local Tax laws.
"Tenant": With respect to each Credit Lease, the lessee thereunder.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust Fund": Collectively, (i) all of the assets of REMIC I,
REMIC II and REMIC III, (ii) the Grantor Trust, (iii) any interest on the
Mortgage Loans which is attributable to any portion of a Servicing Fee that is
deemed to be in excess of the amount of such Servicing Fee that constitutes
reasonable servicing compensation within the meaning of the REMIC Provisions and
(iv) the Reserve Funds in the Reserve Accounts.
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"Trustee": Norwest Bank Minnesota, National Association, its
successor in interest, or any successor trustee appointed as herein provided.
"Trustee Fee": The fee designated as such and payable to the
Trustee pursuant to Section 8.05.
"Trustee Fee Rate": 0.00175% per annum.
"Trustee Liability": As defined in Section 8.05(b).
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest as of the
commencement of the Collection Period for such Distribution Date, accrued on the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to such Distribution Date and, to the extent permitted under
applicable law, also on any Uncertificated Distributable Interest in respect of
such REMIC I Regular Interest from prior Distribution Dates that was not
previously deemed paid. With respect to any REMIC II Regular Interest, for any
Distribution Date, one month's interest at the REMIC II Remittance Rate, accrued
on the Uncertificated Principal Balance of such REMIC II Regular Interest
outstanding immediately prior to such Distribution Date. Uncertificated Accrued
Interest in respect of any REMIC I Regular Interest or any REMIC II Regular
Interest shall accrue on the basis of a 360-day year consisting of twelve 30-day
months.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
the numerator of which is the Uncertificated Accrued Interest in respect of such
REMIC I Regular Interest for such Distribution Date, and the denominator of
which is the aggregate Uncertificated Accrued Interest in respect of all the
REMIC I Regular Interest for such Distribution Date. With respect to any REMIC
II Regular Interest for any Distribution Date, the Uncertificated Accrued
Interest in respect of such REMIC II Regular Interest for such Distribution
Date, reduced (to not less than zero) by the product of (i) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is the
Uncertificated Accrued Interest in respect of such REMIC II Regular Interest for
such Distribution
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Date, and the denominator of which is the aggregate Uncertificated Accrued
Interest in respect of all the REMIC II Regular Interests for such Distribution
Date.
"Uncertificated Principal Balance": The principal amount of any
REMIC I Regular Interest or REMIC II Regular Interest outstanding as of any date
of determination. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-Off Date Balance of the
related Mortgage Loan (except with respect to the Meidinger Tower Loan, in which
case it will equal the Uncertificated Principal Balance of the Meidinger Senior
Interest). As of the Cut-Off Date, the Uncertificated Principal Balance of each
REMIC II Regular Interest shall equal the Original Class Principal Balance of
the corresponding Class of REMIC III Certificates. On each Distribution Date,
the Uncertificated Principal Balance of each REMIC II Regular Interest shall be
reduced by all distributions of principal deemed to have been made thereon on
such Distribution Date pursuant to Section 4.01(h), and shall be further reduced
on such Distribution Date by all Realized Losses and Additional Trust Fund
Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b). On each Distribution Date, the Uncertificated
Principal Balance of each REMIC I Regular Interest shall be reduced by all
distributions of principal deemed to have been made in respect of such REMIC I
Regular Interest on such Distribution Date pursuant to Section 4.01(i), and
shall be further reduced on such Distribution Date by such Realized Losses and
Additional Trust Fund Expenses deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(c).
"Underwriters": Merrill Lynch and Greenwich NatWest Limited, as
agent for National Westminster Bank, Plc.
"United States Person": A citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, an estate whose
income is includible in gross income for United States federal income tax
purposes regardless of its source, or a trust if a court within the U.S. is able
to exercise primary supervision over the administration of the trust and one or
more U.S. fiduciaries have the authority to control all substantial decisions of
the trust, all within the meaning of Section 7701(a) of the Code.
"Unrestricted Servicer Reports":
(i) "Delinquent Loan Status Report" containing substantially the
content set forth in Annex D attached hereto, prepared by the Master Servicer
setting forth, among other things, those Mortgage Loans that were delinquent
30-59 days, delinquent 60-89 days, delinquent 90 days or more, current but
specially serviced, or in foreclosure but not REO Property;
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(ii) "Historical Loan Modification Report" setting forth, among
other things, those Mortgage Loans that have been modified pursuant to the
Pooling and Servicing Agreement (a) during the related Collection Period and (b)
since the Cut-Off Date, showing the original and revised terms thereof;
(iii) "Historical Loss Estimate Report" setting forth, among other
things, (a) the aggregate amount of liquidation proceeds and expenses relating
to each Final Recovery Determination (as defined in the Pooling and Servicing
Agreement), both during the related Collection Period and historically, and (b)
the amount of Realized Losses occurring during the related Collection Period,
set forth on a loan-by-loan basis;
(iv) "REO Status Report" setting forth, among other things, with
respect to each REO Property then currently included in the Trust Fund, (a) the
acquisition date of such REO Property, (b) the amount of income collected with
respect to such REO Property (net of related expenses) and other amounts, if
any, received on such REO Property during the related Collection Period and (c)
the value of the REO Property based on the most recent appraisal or other
valuation thereof available to the Special Servicer as of such Determination
Date (including any prepared internally by the Special Servicer).
"USAP": The Uniform Single Attestation Program for Mortgage Bankers.
"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, 100% of the Voting Rights shall be allocated among the
Holders of the Sequential Pay Certificates in proportion to the respective Class
Principal Balances of their 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. In addition, if any of the Master Servicer and any Affiliate
thereof or the Special Servicer is the holder of any Certificate, none of the
Master Servicer, any Affiliate thereof or the Special Servicer, in its capacity
as a Certificateholder, shall have Voting Rights with respect to matters
concerning compensation affecting the Master Servicer or the Special Servicer.
The Grantor Trust Certificate shall be deemed to be a Sequential Pay Certificate
with Voting Rights for the purposes of Section 11.01, and the Holder of the
Grantor Trust Certificate shall be deemed to be entitled to 100% of the Voting
Rights allocated to the Class represented by the Grantor Trust Certificate. The
Class X, Class R-I, Class R-II and Class R-III Certificates shall not have any
Voting Rights.
"Watch List": As of each Determination Date a report, substantially
in the form of Exhibit O attached hereto, identifying each Mortgage Loan that is
not a Specially Serviced Mortgage Loan (i) with a Debt Service Coverage Ratio of
less than 1.10, (ii) that has a Stated Maturity Date occurring in the next sixty
days, (iii) that is delinquent in its real estate taxes, (iv) for which any
outstanding Advances exist, (v)
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that has been a Specially Serviced Mortgage Loan in the past 90 days, (vi) for
which the Debt Service Coverage Ratio has decreased by more than 10% in the
prior 12 months, (vii) for which any lease relating to more than 25% of the
related Mortgaged Property has expired, been terminated, is in default or will
expire within the next three months, (viii) that is late (beyond any grace
period provided for in the Mortgage Loan) in making its Monthly Payment three or
more times in the preceding twelve months, (ix) that the related Mortgagor has
material deferred maintenance for the related Mortgaged Property or (x) that is
30 or more days delinquent.
"Weighted Average Effective REMIC I Remittance Rate": With respect
to any Distribution Date, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to eight decimal places, of the respective
REMIC I Remittance Rates in respect of all of the REMIC I Regular Interests as
of the commencement of the related Collection Period, weighted on the basis of
the respective Uncertificated Principal Balances of such REMIC I Regular
Interests outstanding immediately prior to such Distribution Date.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to compensate the
holder for reinvestment losses based on the aggregate payment of interest which
would have accrued on such Mortgage Loan on each subsequent Due Date through the
maturity date of such Mortgage Loan, at a rate calculated as the difference
between the Mortgage Rate on such Mortgage Loan and the applicable U.S. treasury
rate in effect on the date of Principal Prepayment thereof, discounted at a rate
set forth in the related Mortgage Note at or near the time of prepayment. Any
other prepayment premiums, penalties and fees not so calculated will not be
considered "Yield Maintenance Charges."
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee to be held as a part of the Trust Fund, without recourse, for the
benefit of the Certificateholders (and for the benefit of the other parties to
this Agreement as their respective interests may appear) all the right, title
and interest of the Depositor, in, to and under (i) the Mortgage Loans
(including the Meidinger Tower Loan), (ii) each of the Mortgage Loan Purchase
Agreements (other than the right to recovery of certain transaction expenses,
including certain estimated expenses, as set forth in Section 1 thereof and the
right to receive certain indemnification and/or contribution payments from the
applicable Mortgage Loan Seller under Section 6 thereof) and (iii) all other
assets included or to be included in the Trust Fund. Such assignment includes
all interest and principal received or receivable on or with respect to the
Mortgage Loans (including the Meidinger Tower Loan) and due after the Cut-Off
Date. The transfer of the Mortgage Loans (including the Meidinger Tower Loan)
and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with a copy to the Master Servicer and the Special Servicer),
on or before the Closing Date, the Mortgage File for each Mortgage Loan
(including the Meidinger Tower Loan) so assigned. None of the Trustee, any
Custodian, the Master Servicer or the Special Servicer shall be liable for any
failure by any Mortgage Loan Seller or the Depositor to comply with the document
delivery requirements of the respective Mortgage Loan Purchase Agreement and
this Section 2.01 (b).
(c) The Trustee shall, as to each Mortgage Loan (including the
Meidinger Tower Loan), promptly (and in any event within 30 days following the
later of the Closing Date or the delivery of such assignments and UCC Financing
Statements to the Custodian) cause all endorsements of the Mortgage Notes which
have been endorsed in blank instead of in favor of the Trustee and all
assignments of Mortgage and other assignments which have been assigned in blank
instead of in favor of the Trustee to be completed as endorsements or
assignments, as applicable, in favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of
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Commercial Mortgage Acceptance Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-C2. The Trustee shall, at the Depositor's or the
applicable Mortgage Loan Seller's expense and direction, as to each Mortgage
Loan, promptly (and in any event within 45 days following the later of the
Closing Date or the delivery of such assignments and UCC Financing Statements to
the Custodian) cause to be submitted for recording or filing, as the case may
be, in the appropriate public office for real property records or UCC Financing
Statement records, as appropriate, and to the extent timely delivered to the
Custodian in form suitable for filing or recording, as applicable, each
assignment of Mortgage, assignment of Assignment of Leases and assignment of any
other recordable documents relating to the Mortgage Loan (including the
Meidinger Tower Loan), in favor of the Trustee referred to in clause (iv) of the
definition of "Mortgage File" and each UCC-2 and UCC-3 assignment in favor of
the Trustee and so delivered to the Custodian and referred to in clause (ix) of
the definition of "Mortgage File." Each such assignment shall reflect that it
should be returned by the public recording office to the Custodian or its
designee following recording, and each such UCC-2 and UCC-3 assignment shall
reflect that the file copy thereof should be returned to the Custodian or its
designee following filing or recording (and the Custodian shall forward a copy
of each document to the Master Servicer upon receipt); provided, that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Custodian shall obtain
therefrom and forward to the Master Servicer a certified copy of the recorded
original. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Trustee shall
direct the appropriate Mortgage Loan Seller pursuant to the applicable Mortgage
Loan Purchase Agreement promptly to prepare or cause to be prepared a substitute
therefor or cure such defect, as the case may be, and thereafter the Trustee
shall upon receipt thereof cause the same to be duly recorded or filed, as
appropriate. If a pro forma or specimen title insurance policy or a commitment
for lender's title insurance policy has been delivered to the Custodian in lieu
of an original title insurance policy on the Closing Date, the Depositor or the
Master Servicer will promptly deliver to the Custodian the related original
title insurance policy upon receipt thereof.
(d) All documents and records in the possession of the Depositor or
the Mortgage Loan Sellers that relate to the Mortgage Loans (including the
Meidinger Tower Loan) and that are not required to be a part of a Mortgage File
in accordance with the definition thereof shall be delivered to the Master
Servicer (at the expense of the applicable Mortgage Loan Seller) on or before
the Closing Date and shall be held by the Master Servicer on behalf of the
Trustee in trust for the benefit of the Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian and the
Master Servicer on or before the Closing Date a copy of a fully executed
counterpart of each Mortgage Loan Purchase Agreement, as in full force and
effect on the Closing Date.
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SECTION 2.02. Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of its right, title and
interest in the assets that constitute the Trust Fund, and further acknowledges
receipt by it or a Custodian on its behalf, subject to the proviso in the
definition of "Mortgage File" and the provisions of Section 2.01 and subject to
the further review provided for in Section 2.02(b), of (i) the Mortgage File
delivered to it for each Mortgage Loan (including the Meidinger Tower Loan) and
(ii) a copy of a fully executed counterpart of each Mortgage Loan Purchase
Agreement, all in good faith and without notice of any adverse claim, and
declares that it or a Custodian on its behalf holds and will hold such documents
and the other documents received by it that constitute portions of the Mortgage
Files, and that it holds and will hold the Mortgage Loans (including the
Meidinger Tower Loan) and other assets included in the Trust Fund, in trust for
the exclusive use and benefit of all present and future Certificateholders. The
Custodian hereby certifies to each of the Depositor, the Master Servicer, the
Special Servicer, the Trustee and the Mortgage Loan Sellers, that except as
identified in a written notice, a copy of which shall have been delivered by the
Custodian on or prior to the Closing Date to each of the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the Mortgage Loan Sellers,
without regard to the proviso in the definition of "Mortgage File", each of the
documents specified in clause (i) of the definition of Mortgage File are in its
possession. In addition, within forty-five (45) days after the Closing, the
Trustee or the Custodian on its behalf will review the Mortgage Files and
certify to each of the Depositor, the Master Servicer, the Special Servicer, the
Majority Subordinate Certificateholder and the Mortgage Loan Sellers that,
subject to Section 2.02(c) and except as specifically identified in the Schedule
of Exceptions to Mortgage File Delivery in substantially the form annexed hereto
as Exhibit C, (i) without regard to the proviso in the definition of "Mortgage
File," all documents specified in clauses (i) through (iv), (vi) and (viii), and
to the extent provided in the related Mortgage File actually known by a
Responsible Officer of the Trustee to be required, clauses (v), (vii), (ix) and
(x) of the definition of "Mortgage File" are in its possession, (ii) all
documents delivered or caused to be delivered by the Mortgage Loan Sellers
constituting the related Mortgage File have been reviewed by it and appear
regular on their face, appear to relate to such Mortgage Loan, and appear to be
without any Document Defect, (iii) based on such examination and only as to the
foregoing documents, the information set forth in the Mortgage Loan Schedule
with respect to the items specified in clauses (ii), (v) and (vi)(B) of the
definition of "Mortgage Loan Schedule" is correct. Notwithstanding the above,
the Custodian may deliver a revised Schedule of Exceptions to Mortgage File
Delivery to the Depositor within 45 days after the Closing Date. Such revised
schedule shall be treated as if it was attached hereto as Exhibit C.
(b) Within 90 days after the Closing Date, the Custodian shall
certify in writing to each of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Majority Subordinate Certificateholder and each
Mortgage Loan Seller that, as to
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each Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage
Loan as to which a Liquidation Event has occurred or any Mortgage Loan
specifically identified in any exception report annexed thereto as not being
covered by such certification) (including the Meidinger Tower Loan) and further
subject to Section 2.02(c): (i) all documents specified in clauses (i) through
(iv) (except clause (iv)(c), unless the Custodian has knowledge thereof), (vi)
and (viii) and, to the extent provided in the related Mortgage File, clauses
(v), (vii), (ix) and (x) of the definition of "Mortgage File" are in its
possession, (ii) all documents received by it in respect of such Mortgage Loan
have been reviewed by it and appear regular on their face and appear to relate
to such Mortgage Loan and appear to be without any Document Defect and (iii)
based on the examinations referred to in Section 2.02(a) above and this Section
2.02(b) and Section 2.02(c) and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (ii), (v), (vi)(B), (xvi) and (xvii) of the definition of
"Mortgage Loan Schedule" is correct.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans (including the Meidinger Tower Loan) delivered to it to determine
that the same are valid, legal, effective, genuine, enforceable, in recordable
form, sufficient or appropriate for the represented purpose or that they are
other than what they purport to be on their face.
SECTION 2.03. Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Document
Defects and Breaches of Representations and
Warranties.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been properly executed, has not
been received in the form or within the time required hereunder, has not been
endorsed or assigned to the extent required hereunder, has not been recorded or
filed (if required hereunder), contains information that does not conform in any
respect with the corresponding information set forth in the Mortgage Loan
Schedule, or does not appear to be regular on its face (each, a "Document
Defect"), or discovers or receives notice of a breach of any representation or
warranty relating to the Mortgage Loans made under Section 2(b) of the
applicable Mortgage Loan Purchase Agreement (a "Breach"), and such Document
Defect or Breach, as the case may be, materially and adversely affects the
interests of the Certificateholders or the value of the affected Mortgage Loan,
such party shall give prompt written notice to the other parties hereto, the
Majority Subordinate Certificateholder and to the Rating Agencies. Promptly upon
becoming aware of any such Document Defect or Breach (including through such
written notice provided by any party hereto, as provided above), the Master
Servicer shall request that the respective Mortgage Loan Seller, not later than
90 days after such Mortgage Loan Seller's receipt of such notice (or, in the
case of a Document Defect or Breach relating to
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a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC
Provisions, not later than 90 days after any party to this Agreement discovering
such Document Defect or Breach), if such Document Defect or Breach shall
materially and adversely affect the value of the related Mortgage Loan or the
interest of the Certificateholders therein, cure such Document Defect or Breach,
as the case may be, in all material respects, which shall include payment of
losses, any Additional Trust Fund Expenses and any expenses in connection with
enforcement associated therewith or, if such Document Defect or Breach (other
than omissions solely due to a document not having been returned by the related
recording office) cannot be cured within such 90-day period, either (i)
repurchase the affected Mortgage Loan at the applicable Purchase Price not later
than the end of such 90-day period in accordance with the applicable Mortgage
Loan Purchase Agreement or (ii) substitute a Qualified Substitute Mortgage Loan
for such affected Mortgage Loan and pay the Trustee for deposit into the
Certificate Account, any Substitution Shortfall Amount in connection therewith
not later than the end of such 90-day period in accordance with the applicable
Mortgage Loan Purchase Agreement; provided, however, that if such Document
Defect or Breach is capable of being cured but not within such 90-day period,
such Document Defect or Breach does not relate to the Mortgage Loan not being
treated as a "qualified mortgage" within the meaning of the REMIC Provisions,
and such Mortgage Loan Seller has commenced and is diligently proceeding with
the cure of such Document Defect or Breach within such 90-day period, such
Mortgage Loan Seller shall have an additional 90 days to complete such cure (or,
failing such cure, to repurchase the related Mortgage Loan or substitute a
Qualified Substitute Mortgage Loan as provided above); and provided, further,
that with respect to such additional 90-day period such Mortgage Loan Seller
shall have delivered an Officer's Certificate to the Master Servicer and the
Trustee setting forth the reason such Document Defect or Breach is not capable
of being cured within the initial 90-day period and what actions such Mortgage
Loan Seller is pursuing in connection with the cure thereof and stating that
such Mortgage Loan Seller anticipates that such Document Defect or Breach will
be cured within the additional 90-day period. If the affected Mortgage Loan is
to be repurchased or substituted, the Master Servicer shall designate the
Certificate Account as the account to which funds in the amount of the Purchase
Price or the Substitution Shortfall Amount, as applicable, are to be wired. Any
such repurchase or substitution of a Mortgage Loan shall be on a whole loan,
servicing released basis. Notwithstanding the foregoing, the delivery of a
commitment (which may refer to a pro forma or specimen title insurance policy)
to issue a policy of lender's title insurance in lieu of the delivery of the
actual policy of lender's title insurance shall not be considered a Document
Defect with respect to any Mortgage File if such actual policy of insurance is
delivered to the Trustee or a Custodian on its behalf not later than the 90th
day following the Closing Date. Any reasonable out-of-pocket expense incurred by
the Master Servicer or the Trustee, as the case may be, in carrying out its
duties pursuant to this Section 2.03 shall constitute a Servicing Advance;
provided, however, that the Master Servicer or the Trustee, as the
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case may be, shall use reasonable efforts to collect such out-of-pocket expenses
from the related Mortgage Loan Seller.
(b) In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated by this Section 2.03, upon receipt of a certificate
of a Servicing Officer certifying as to the receipt of the applicable Purchase
Price(s) in the Certificate Account (in the case of any such repurchase) or the
receipt of the applicable Substitution Shortfall Amount(s) in the Certificate
Account and the delivery of the Mortgage File(s) and the Servicing File(s) for
the related Qualified Substitute Mortgage Loan(s) to the Custodian and the
Master Servicer, respectively (in the case of any such substitution), (i) the
Trustee shall execute and deliver such endorsements and assignments as are
provided to it by the Master Servicer, in each case without recourse,
representation or warranty, as shall be necessary to vest in the applicable
Mortgage Loan Seller the legal and beneficial ownership of each repurchased
Mortgage Loan or deleted Mortgage Loan, as applicable, being released pursuant
to this Section 2.03, and (ii) the Trustee, the Custodian, the Master Servicer
and the Special Servicer shall each tender to the appropriate Mortgage Loan
Seller, upon delivery to each of them of a receipt executed by such Mortgage
Loan Seller, all portions of the Mortgage File and other documents pertaining to
each such Mortgage Loan possessed by it; provided, that such tender by the
Trustee or the Custodian shall be conditioned upon its receipt from the Master
Servicer of a Request for Release. Thereafter, the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall have no further responsibility
with regard to the related repurchased Mortgage Loan(s) or deleted Mortgage
Loan(s), as applicable, and the related Mortgage File(s) and Servicing File(s).
The Master Servicer shall, and is hereby authorized and empowered by the Trustee
to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.03, and the Trustee shall execute any
powers of attorney that are prepared and delivered to the Trustee by the Master
Servicer and are necessary to permit the Master Servicer to do so. The Master
Servicer shall indemnify the Trustee for any reasonable costs, fees, liabilities
and expenses incurred by the Trustee in connection with the negligent or willful
misuse by the Master Servicer of such powers of attorney.
(c) No substitution of a Qualified Substitute Mortgage Loan or Loans
may be made in any calendar month after the Determination Date for such month.
Monthly Payments due with respect to any Qualified Substitute Mortgage Loan
after the related date of substitution shall be part of REMIC I. Monthly
Payments due with respect to any Qualified Substitute Mortgage Loan on or prior
to the related date of substitution shall not be part of the Trust Fund or REMIC
I and will (to the extent received by the Master Servicer) be remitted by the
Master Servicer to the applicable Mortgage Loan Seller promptly following
receipt.
(d) Each Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
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Certificateholders, respecting any Document Defect or Breach with respect to the
Mortgage Loans purchased by the Depositor thereunder.
SECTION 2.04. Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Master
Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Missouri and possesses all licenses and authorizations necessary to
carry out the transactions of the Depositor contemplated by this
Agreement.
(ii) The execution and delivery of this Agreement and the
Meidinger Tower Agreement by the Depositor, and the performance and
compliance with the terms of this Agreement and the Meidinger Tower
Agreement by the Depositor, does not and will not violate the
Depositor's articles of incorporation 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, the default or
breach of which, 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 Meidinger Tower Agreement or the financial
condition of the Depositor.
(iii) No consent, approval or authorization of or designation,
declaration, notice or filing with any governmental authority,
corporation, person or firm on the part of the Depositor is required
in connection with the valid execution and delivery of this
Agreement or the Meidinger Tower Agreement or the consummation of
any other transactions of the Depositor contemplated hereby other
than a consent, approval, authorization, designation, declaration,
notice or filing which has been obtained, made or given.
(iv) The Depositor has the full power and authority to carry
on its business as now being conducted and to enter into and
consummate all transactions of the Depositor contemplated by this
Agreement and the Meidinger Tower Agreement, has duly authorized the
execution, delivery and performance of this Agreement and the
Meidinger Tower Agreement, and has duly executed and delivered this
Agreement.
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(v) This Agreement and the Meidinger Tower Agreement, assuming
due authorization, execution and delivery by each of the other
parties hereto, 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.
(vi) The Depositor is not in violation of, and its execution
and delivery of this Agreement and the Meidinger Tower Agreement and
its performance and compliance with the terms of this Agreement and
the Meidinger Tower Agreement does 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 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 Meidinger Tower Agreement or
the financial condition of the Depositor.
(vii) The transfer of the Mortgage Loans to the Trust Fund 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.
(viii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor that, if
determined adversely to the Depositor, would prohibit the Depositor
from entering into this Agreement or, in the Depositor's good faith
and 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.
(ix) Immediately prior to the transfer of the Mortgage Loans
to the Trust Fund pursuant to this Agreement, the Depositor has full
right and authority to sell, assign and transfer its right, title
and interest in the Mortgage Loans.
(x) The Depositor is transferring its right, title and
interest, to and under the Mortgage Loans to the Trust Fund free and
clear of any liens, pledges, charges and security interests created
by it or attributable to its ownership.
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(b) The representations and warranties of the Depositor set forth
in Section 2.04(a) shall survive the execution and delivery of this Agreement
and the Meidinger Tower Agreement and shall inure to the benefit of the Persons
for whose benefit they were made for so long as the Trust Fund remains in
existence. Upon discovery by any party hereto of any breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other parties and to the Rating
Agencies.
SECTION 2.05. Execution, Authentication and Delivery of Class
R-I Certificates; Creation of REMIC I Regular
Interests.
The Trustee hereby acknowledges the assignment to it, in its
capacity as Trustee, of the assets included in the Trust Fund. Concurrently with
such assignment and in exchange therefor, (a) the Trustee agrees to hold each of
the Mortgage Loans as part of REMIC I, (b) the Trustee agrees to hold the
Grantor Trust Assets as a grantor trust within the meaning of the Grantor Trust
Provisions and (c) the Certificate Registrar, pursuant to the written request of
the Depositor executed by an officer of the Depositor, has executed, and the
Authenticating Agent has authenticated and delivered to or upon the order of the
Depositor, the Class R-I Certificates and Grantor Trust Certificates in
authorized denominations. The interests evidenced by the Class R-I Certificates,
together with the REMIC I Regular Interests, constitute the entire beneficial
ownership of REMIC I. The rights of the Class R-I Certificateholders and REMIC
II (as Holder of the REMIC I Regular Interests) to receive distributions from
the proceeds of REMIC I in respect of the Class R-I Certificates and the REMIC I
Regular Interests, respectively, and all ownership interests evidenced or
constituted by the Class R-I Certificates and the REMIC I Regular Interests,
shall be as set forth in this Agreement.
SECTION 2.06. Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trust Fund for the benefit of the respective Holders of the
REMIC II Regular Interests and the Class R-II Certificates. The Trustee
acknowledges the assignment to it of the right, title and interest of the
Depositor in the REMIC I Regular Interests and declares that it holds and will
hold the same in trust for the exclusive use and benefit of all present and
future Holders of the REMIC II Regular Interests and the Class R-II
Certificates.
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SECTION 2.07. Execution, Authentication and Delivery of Class
R-II Certificates.
The Trustee, pursuant to the written request of the Depositor
executed by an officer of the Depositor, has executed, as the Certificate
Registrar, authenticated, as the Authenticating Agent, and delivered to or upon
the written order of the Depositor, the Class R-II Certificates in authorized
denominations.
SECTION 2.08. Conveyance of REMIC II Regular Interests;
Acceptance of REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests to the Trust Fund for the benefit of the Holders of the REMIC
III Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.09. Execution, Authentication and Delivery of REMIC
III Certificates.
Concurrently with the assignment to it of the REMIC II Regular
Interests and in exchange therefor, the Certificate Registrar has executed, and
the Trustee, as the Authenticating Agent, has authenticated and delivered to or
upon the written order of the Depositor, the REMIC III Certificates in
authorized denominations evidencing the entire beneficial ownership of REMIC
III. The rights of the holders of the respective Classes of REMIC III
Certificates to receive distributions from the proceeds of REMIC III in respect
of their REMIC III Certificates, and all ownership interests evidenced or
constituted by the respective Classes of REMIC III Certificates in such
distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that each is obligated to service and
administer pursuant to this Agreement on behalf of the Trust Fund, for the
benefit of the Certificateholders, in accordance with any and all applicable
laws, the terms of this Agreement and the terms of the respective Mortgage Loans
and, to the extent consistent with the foregoing, in accordance with the
Servicing Standard. Without limiting the foregoing, and subject to Section 3.21,
(i) the Master Servicer shall service and administer all Mortgage Loans that are
not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall
service and administer each Specially Serviced Mortgage Loan and REO Property
and shall render such services with respect to all Mortgage Loans and REO
Properties as are specifically provided for herein. All references herein to the
respective duties of the Master Servicer and the Special Servicer, and to the
areas in which they may exercise discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a) and the terms of this Agreement, the
Master Servicer and the Special Servicer, subject to Section 6.09, each shall
have full power and authority, acting alone, to do or cause to be done any and
all things in connection with such servicing and administration which it may
deem necessary or desirable. Without limiting the generality of the foregoing,
each of the Master Servicer and the Special Servicer, in its own name, with
respect to each of the Mortgage Loans it is obligated to service hereunder, is
hereby authorized and empowered by the Trustee to execute and deliver, on behalf
of the Certificateholders and the Trustee or any of them, (i) any and all
financing statements, continuation statements and other documents or instruments
necessary to maintain the lien created by any Mortgage or other security
document in the related Mortgage File on the related Mortgaged Property and
related collateral; (ii) in accordance with the Servicing Standard and subject
to Section 3.20, any and all modifications, waivers, amendments or consents to
or with respect to any documents contained in the related Mortgage File; and
(iii) any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge, and all other comparable instruments. Subject to
Section 3.10, the Trustee shall, at the written request of the Master Servicer
or the Special Servicer, promptly execute any limited powers of attorney and
other documents furnished by the Master Servicer or the Special Servicer that
are necessary or appropriate to enable them to carry out their servicing and
administrative duties hereunder. The Master Servicer shall indemnify the Trustee
for any reasonable costs, fees, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse by the Master Servicer of
such powers of attorney.
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(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a partner or agent or one that
would constitute a joint venture.
(d) Notwithstanding anything to the contrary herein, except as
provided in the Meidinger Tower Agreement, Sections 3.01 through 3.22 and
Section 3.24 hereof will not apply to the Meidinger Tower Loan and Sections 3.01
through 3.03, 3.07 through 3.10, 3.12 through 3.18 and 3.20 through 3.24 hereof
will not apply to the Meidinger Senior Interest. The Meidinger Tower Loan shall
be serviced in accordance with the Meidinger Tower Agreement.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Mortgage Loans it is obligated to service hereunder and
shall, to the extent such procedures shall be consistent with this Agreement,
follow such collection procedures in accordance with the Servicing Standard.
Consistent with the foregoing, the Special Servicer, with regard to a Specially
Serviced Mortgage Loan, or the Master Servicer, with regard to a Mortgage Loan
that is not a Specially Serviced Mortgage Loan, may waive any default interest
or late payment charge in connection with any payment on a Mortgage Loan.
(b) All amounts collected in respect of any Mortgage Loan in the
form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds
shall be applied to either amounts due and owing under the related Mortgage Note
and Mortgage (including, without limitation, for principal and accrued and
unpaid interest) in accordance with the express provisions of the related
Mortgage Note and Mortgage or, if required pursuant to the express provisions of
the related Mortgage, or as determined by the Master Servicer or Special
Servicer in accordance with the Servicing Standard, to the repair or restoration
of the related Mortgaged Property, and, in the absence of such express
provisions, shall be applied for purposes of this Agreement: first, as a
recovery of accrued and unpaid interest, to the extent such amounts have not
been previously advanced, at the related Mortgage Rate on such Mortgage Loan;
second, as a recovery of principal of such Mortgage Loan then due and owing, to
the extent such amounts have not been previously advanced, including, without
limitation, by reason of acceleration of the Mortgage Loan following a default
thereunder; third, in accordance with the normal servicing practices of the
Master Servicer, as a recovery of any other amounts then due and owing under
such Mortgage Loan, including, without limitation, late charges, Prepayment
Premiums and default interest; fourth, as a recovery of any remaining principal
of such Mortgage Loan to the extent of its entire remaining unpaid principal
balance; and fifth, with respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, as a recovery of any interest to accrue on such
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ARD Mortgage Loan at a rate in excess of the related Mortgage Rate. No such
amounts shall be applied to the items constituting additional servicing
compensation as described in the first sentence of Section 3.11(b) or 3.11(d)
unless and until all principal and interest then due and payable on such
Mortgage Loan has been collected and any other expenses incurred by the Master
Servicer or the Special Servicer with respect to such Mortgage Loan have been
reimbursed. Amounts collected on any REO Loan shall be deemed to be applied in
accordance with the definition thereof. The provisions of this paragraph with
respect to the application of amounts collected on any Mortgage Loan shall not
alter in any way the right of the Master Servicer, the Special Servicer, the
Trustee or any other Person to receive payments from the Certificate Account as
set forth in clauses (ii) through (xiv) of Section 3.05(a) from amounts so
applied.
(c) With respect to an ARD Mortgage Loan, notwithstanding any
provision herein to the contrary, the Master Servicer or the Special Servicer,
as the case may be, shall have the authority, subject to Section 3.20 hereof, to
waive or otherwise modify any Additional Interest due and accruing if the
related Mortgagor demonstrates (to the satisfaction of the Master Servicer or
the Special Servicer) its ability to prepay the entire principal balance of the
related ARD Mortgage Loan and accrued and unpaid interest thereon at the
applicable Mortgage Rate, any related and unreimbursed Servicing Advances plus
any interest thereon and any Additional Trust Fund Expenses in respect of such
Mortgage Loan.
(d) Within 30 days after the Closing Date (or such earlier time as
may be required under the terms of Lease Enhancement Policy), the Master
Servicer shall notify the Lease Enhancement Policy Issuer that (i) both the
Master Servicer and the Special Servicer shall be sent notices under each Lease
Enhancement Policy and (ii) the Trustee for the benefit of the
Certificateholders shall be the loss payee under each Lease Enhancement Policy.
In the event that the Master Servicer has knowledge of any event (an "Insured
Event") giving rise to a claim under any Lease Enhancement Policy, the Master
Servicer shall prepare and file a "proof of loss" form with the Lease
Enhancement Policy Issuer within five Business Days after obtaining knowledge of
any Insured Event under the related policy which has occurred and is continuing,
take such other action as may be required to bring a claim under the related
policy, and shall diligently process any claims under such policy in accordance
with the Servicing Standard and the terms of the related policy. The Special
Servicer shall give notice to the Master Servicer of any claim made under any
Lease Enhancement Policy and of any Lease Enhancement Policy Termination Event
of which the Master Servicer does not already have notice. The Master Servicer
shall review and be familiar with the terms and conditions of each Lease
Enhancement Policy and when the Master Servicer has knowledge of an insured
event, shall monitor the dates by which any claim or action must be taken under
each Lease Enhancement Policy to realize the full value of such Lease
Enhancement Policy for the benefit of the Certificateholders and shall promptly,
but in no event later than ten Business Days prior to any date on which any
action must be taken under the Lease Enhancement Policy to realize the full
value of such Lease
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Enhancement Policy for the benefit of the Certificateholders, the Master
Servicer shall take such action, consistent with the Servicing Standard and the
terms of the related policy.
In the event that the Master Servicer receives notice of any Lease
Enhancement Policy Termination Event, the Master Servicer shall promptly, but in
no event later than three Business Days after receipt of such notice, notify the
Special Servicer, the Trustee, the Rating Agencies and the Controlling Class
Representative of such Lease Enhancement Policy Termination Event in writing.
The Master Servicer shall, address such Lease Enhancement Policy Termination
Event in accordance with the Servicing Standard and the terms of the related
policy. Any legal fees incurred in connection with a resolution of a Lease
Enhancement Policy Termination Event shall be paid by the Master Servicer as a
Servicing Advance and shall be reimbursable from the Mortgagor or other
responsible party, and if not recoverable, then in accordance with Section
3.05(a).
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain one or more accounts (the "Servicing Accounts"), into which all
Escrow Payments shall be deposited and retained. Each Servicing Account shall be
an Eligible Account. Withdrawals of amounts so collected from a Servicing
Account may be made (to the extent amounts have been escrowed for such purpose)
only to: (i) effect payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and other items for which funds have been
escrowed in the Servicing Account; (ii) reimburse the Master Servicer, the
Trustee or the Special Servicer for any Servicing Advances; (iii) refund to
Mortgagors any sums as may be determined to be overages; (iv) pay interest, if
required and as described below, to Mortgagors on balances in the Servicing
Account; (v) pay itself interest and investment income on balances in the
Servicing Account as described in Section 3.06(b), if and to the extent not
required by law or the terms of Mortgage Loan to be paid to the Mortgagor; or
(vi) clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. To the extent permitted by law or the
applicable Mortgage Loan, funds in the Servicing Accounts may be invested only
in Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall pay or cause to be paid to the Mortgagors interest, if
any, earned on the investment of funds in Servicing Accounts maintained thereby,
if required by law or the terms of the related Mortgage Loan. If the Master
Servicer shall deposit in a Servicing Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Servicing
Account, any provision herein to the contrary notwithstanding. The Servicing
Accounts shall not be considered part of the segregated pool of assets
constituting REMIC I.
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(b) The Master Servicer shall, as to all Mortgage Loans, (i)
maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof and (ii) use reasonable efforts to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and shall, subject to Section 3.03(c), effect payment thereof
prior to the applicable penalty or termination date. For purposes of effecting
any such payment for which it is responsible, the Master Servicer shall apply
Escrow Payments as allowed under the terms of the related Mortgage Loan or, if
such Mortgage Loan does not require the related Mortgagor to escrow for the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Master Servicer shall, as to all Mortgage
Loans, enforce the requirement of the related Mortgage that the Mortgagor make
payments in respect of such items in accordance with the terms of the related
Mortgage Loan documents.
(c) The Master Servicer shall, as to all Mortgage Loans, make a
Servicing Advance with respect to the related Mortgaged Property in an amount
equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies (in
accordance with Section 3.07), in each instance if and to the extent Escrow
Payments (if any) collected from the related Mortgagor are insufficient to pay
such item when due and the related Mortgagor has failed to pay such item on a
timely basis, and provided that the particular Servicing Advance would not, if
made, constitute a Nonrecoverable Servicing Advance; provided, that the Master
Servicer shall effect such payment on or prior to the applicable penalty or
termination date; provided, further, that with respect to the payment of taxes
and assessments, the Master Servicer shall make such Servicing Advance within 5
Business Days after the Master Servicer has received confirmation that such item
has not been paid. All such Servicing Advances shall be reimbursable in the
first instance from related collections from the Mortgagors, and further as
provided in Section 3.05(a). No costs incurred by the Master Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of such Mortgaged Properties shall, for purposes
of this Agreement, including, without limitation, the Paying Agent's calculation
of monthly distributions to Certificateholders, be added to the unpaid Stated
Principal Balances of the related Mortgage Loans, notwithstanding that the terms
of such Mortgage Loans so permit. The foregoing shall in no way limit the Master
Servicer's ability to charge and collect from the Mortgagor such costs together
with interest thereon.
If the Master Servicer is required under any provision of this
Agreement (including, but not limited to, this Section 3.03(c)) to make a
Servicing Advance, but does not do so within 15 days after such Advance is
required to be made, the Trustee shall, if a Responsible Officer of the Trustee
has actual knowledge of such failure on the
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part of the Master Servicer give written notice of such failure to the Master
Servicer. If such Servicing Advance is not made by the Master Servicer within
three Business Days after such notice then (subject to a determination that such
Servicing Advance would not be a Nonrecoverable Servicing Advance) the Trustee
shall make such Servicing Advance. Any failure by the Master Servicer to make a
Servicing Advance hereunder shall constitute an Event of Default by the Master
Servicer, subject to and as provided in Section 7.01. The Master Servicer shall
not be required to make a Servicing Advance if, in the good faith judgment of
the Master Servicer, such Servicing Advance, if made, would constitute a
Nonrecoverable Servicing Advance.
(d) In connection with its recovery of any Servicing Advance from
the Certificate Account pursuant to Section 3.05(a), the Master Servicer and the
Trustee shall be entitled to receive, first out of any default interest and late
charges collected with respect to the related Mortgage Loan and then out of any
amounts then on deposit in the Certificate Account, any unpaid interest at the
Reimbursement Rate in effect from time to time, compounded annually, accrued on
the amount of such Servicing Advance from the date made to but not including the
date of reimbursement. The Master Servicer shall reimburse itself or the
Trustee, as appropriate and in accordance with Section 3.05(a), for any
Servicing Advance as soon as practicable after funds available for such purpose
are deposited in the Certificate Account.
(e) The determination by either the Master Servicer or the Trustee
that it has made a Nonrecoverable Servicing Advance or that any proposed
Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance,
shall be made in accordance with the Servicing Standard and shall be evidenced
by an Officers' Certificate delivered promptly to the Trustee, the Depositor,
the Rating Agencies and the Majority Subordinate Certificateholder, setting
forth the basis for such determination, together with a copy of any appraisal of
the related Mortgaged Property or REO Property, as the case may be; which
appraisal shall take into account the factors specified in Section 3.18(e),
including without limitation, any environmental, engineering or other third
party reports available, and other factors that a prudent real estate appraiser
would consider and conducted in accordance with the standards of the Appraisal
Institute performed pursuant to Section 3.09(a) by the Master Servicer or by the
Special Servicer if the Mortgage Loan is a Defaulted Mortgage Loan or, if no
such appraisal has been performed, a copy of an appraisal of the related
Mortgaged Property or REO Property performed within the twelve months preceding
such determination by an Independent Appraiser or other expert in real estate
matters, and further accompanied by related Mortgagor operating statements and
financial statements, budgets and rent rolls of the related Mortgaged Property
and any engineers' reports, environmental surveys or similar reports that the
Master Servicer or the Special Servicer may have obtained and that support such
determination. The Trustee shall be entitled to rely, conclusively, on any
determination by the Master Servicer that a Servicing Advance, if made, would be
a Nonrecoverable Advance; provided, however, that if the Master Servicer has
failed to make a Servicing Advance for reasons other than a determination by the
Master Servicer that such Servicing Advance would be a Nonrecoverable Advance,
the Trustee shall make such Servicing Advance within the
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time periods required by Section 3.03(c) unless the Trustee, in good faith,
makes a determination that such Servicing Advance would be a Nonrecoverable
Advance.
(f) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) to pay for, or to reimburse the related
Mortgagor in connection with, the related repairs and/or capital improvements at
the related Mortgaged Property in accordance with the Servicing Standard, and
such withdrawals are made in accordance with the Servicing Standard and the
terms of the related Mortgage Note, Mortgage and any agreement with the related
Mortgagor governing such Reserve Funds and (ii) unless the related Mortgage Loan
documents provide otherwise, to pay the Master Servicer interest and investment
income earned on amounts in the Reserve Accounts as described below. To the
extent permitted in the applicable Mortgage, funds in the Reserve Accounts may
be invested in Permitted Investments in accordance with the provisions of
Section 3.06. All Reserve Accounts shall be Eligible Accounts. The Reserve
Accounts shall not be considered part of the segregated pool of assets
comprising REMIC I, REMIC II or REMIC III. Consistent with the Servicing
Standard, the Master Servicer may waive or extend the date set forth in any
agreement governing such Reserve Accounts by which the required repairs and/or
capital improvements at the related Mortgaged Property must be completed if the
related Mortgagor is diligently undertaking such repairs or capital
improvements.
SECTION 3.04. Certificate Account and Distribution Account.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders (other than any
Holder of the Grantor Trust Certificates). The Certificate Account shall be an
Eligible Account. The Master Servicer shall deposit or cause to be deposited in
the Certificate Account, within one Business Day of receipt of available funds
(in the case of payments by Mortgagors or other collections on the Mortgage
Loans) or as otherwise required hereunder, the following payments and
collections received or made by the Master Servicer or on its behalf subsequent
to the Cut-Off Date (other than in respect of principal and interest on the
Mortgage Loans due and payable on or before the Cut-Off Date, which payments
shall be delivered promptly to the appropriate Mortgage Loan Seller or its
designee, with negotiable instruments endorsed as necessary and appropriate
without recourse), or payments (other than Principal Prepayments) received by it
on or prior to the Cut-Off Date but allocable to a period subsequent thereto
(including distributions on the Meidinger Senior Interest):
(i) all payments on account of principal of the Mortgage
Loans;
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(ii) all payments on account of interest on the Mortgage
Loans, including Additional Interest, default interest and late
charges;
(iii) all Prepayment Premiums;
(iv) all Insurance Proceeds and Liquidation Proceeds (other
than Liquidation Proceeds described in clause (vi) of the definition
thereof that are required to be deposited in the Distribution
Account pursuant to Section 9.01) received in respect of any
Mortgage Loan;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in the
Certificate Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b);
(vii) any amounts required to be transferred from an REO
Account pursuant to Section 3.16(c);
(viii) to the extent they do not constitute Escrow Payments,
any amounts paid by a Mortgagor specifically to cover items for
which a Servicing Advance has been made and;
(ix) any amount in respect of Purchase Prices and Substitution
Shortfall amounts pursuant to Section 2.03(b).
The foregoing requirements for deposit in the Certificate Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, amounts to be deposited in Reserve
Accounts, and amounts that the Master Servicer and the Special Servicer are
entitled to retain as additional servicing compensation pursuant to Sections
3.11(b) and (d) (except to the extent necessary to offset interest accrued on
Advances or otherwise provided herein), need not be deposited by the Master
Servicer in the Certificate Account. If the Master Servicer 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. The Master Servicer shall promptly deliver to
the Special Servicer as additional servicing compensation in accordance with
Sections 3.11(b) and (d) assumption fees, late charges and other transaction
fees received by the Master Servicer to which the Special Servicer is entitled
pursuant to either of such Sections upon receipt of a certificate of a Servicing
Officer of the Special Servicer describing the item and amount. The Certificate
Account shall be maintained as a segregated account, separate and apart from
trust funds created for mortgage pass-through certificates of other series and
the other accounts of the Master Servicer.
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Upon receipt of any of the amounts described in clauses (i) through
(iv) above with respect to any Mortgage Loan, the Special Servicer shall
promptly, but in no event later than two Business Days after receipt, remit such
amounts to the Master Servicer for deposit into the Certificate Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement or other
appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property shall be deposited by the Special Servicer into the
REO Account and remitted to the Master Servicer for deposit into the Certificate
Account pursuant to Section 3.16(c). With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
such check to the order of the Master Servicer and shall deliver promptly, but
in no event later than three Business Days after receipt, any such check to the
Master Servicer by overnight courier, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason.
(b) The Paying Agent shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Certificateholders. The Distribution Account shall be an Eligible
Account. The Master Servicer shall deliver to the Paying Agent each month on or
before the P&I Advance Date therein, for deposit in the Distribution Account, an
aggregate amount of immediately available funds equal to that portion of the
Available Distribution Amount for the related Distribution Date then on deposit
in the Certificate Account, together with (i) any Prepayment Premiums received
on the Mortgage Loans during the related Collection Period and (ii) in the case
of the final Distribution Date, any additional amounts contemplated by the
second paragraph of Section 9.01. All amounts on deposit in the Distribution
Account shall remain uninvested.
In addition, the Master Servicer and the Trustee, as applicable,
shall, as and when required hereunder, deliver to the Paying Agent for deposit
in the Distribution Account:
(i) any P&I Advances required to be made by the Master
Servicer and the Trustee, as applicable, in accordance with Section
4.03(a);
(ii) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.19 in connection with Prepayment
Interest Shortfalls; and
(iii) the Purchase Price paid in connection with the purchase
by the Master Servicer of all of the Mortgage Loans and any REO
Properties pursuant to Section 9.01, exclusive of the portion of
such amounts
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required to be deposited in the Certificate Account pursuant to
Section 9.01.
The Paying Agent shall, upon receipt, deposit in the Distribution
Account any and all amounts received by the Paying Agent that are required by
the terms of this Agreement to be deposited therein.
SECTION 3.05. Permitted Withdrawals From the Certificate
Account and the Distribution Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Paying Agent for deposit in the
Distribution Account the amounts required to be so deposited
pursuant to the first paragraph of Section 3.04(b);
(ii) to reimburse the Trustee and itself, in that order, for
unreimbursed P&I Advances, the Master Servicer's right to reimburse
the Trustee and itself, in that order, pursuant to this clause (ii)
with respect to any P&I Advance (other than Nonrecoverable Advances,
which are reimbursable pursuant to clause (vii) below) being limited
to, amounts that represent Late Collections of interest on and
principal received in respect of the particular Mortgage Loan or REO
Loan as to which such P&I Advance was made (net of the related
Master Servicing Fee and any related Recovery Fee);
(iii) to pay to itself earned and unpaid Master Servicing Fees
in respect of each Mortgage Loan and REO Loan, the Master Servicer's
right to payment pursuant to this clause (iii) with respect to any
Mortgage Loan or REO Loan being limited to, amounts received on or
in respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds or Insurance Proceeds) or such REO Loan
(whether in the form of REO Revenues, Liquidation Proceeds or
Insurance Proceeds) that are allocable as a recovery of interest
thereon;
(iv) to pay to the Special Servicer, out of general
collections on the Mortgage Loans and any REO Property, earned and
unpaid Special Servicing Fees in respect of each Specially Serviced
Mortgage Loan and REO Loan;
(v) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Recovery Fees in
respect of each Specially Serviced Mortgage Loan, Corrected Mortgage
Loan and REO
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Loan, the Special Servicer's (or, if applicable, any predecessor
Special Servicer's) right to payment pursuant to this clause (v)
with respect to any such Mortgage Loan or REO Loan being limited to,
amounts received on or in respect of such Mortgage Loan (whether in
the form of payments, Liquidation Proceeds or Insurance Proceeds) or
such REO Loan (whether in the form of REO Revenues, Liquidation
Proceeds or Insurance Proceeds); provided that no Recovery Fee shall
be payable out of any Liquidation Proceeds received in connection
with the purchase of any Mortgage Loan or REO Property by the
applicable Mortgage Loan Seller pursuant to the respective Mortgage
Loan Purchase Agreement, by the Majority Subordinate
Certificateholder pursuant to Section 3.18(b), by the Master
Servicer or the Special Servicer pursuant to Section 3.18(c) or by
the Majority Subordinate Certificateholder, the Master Servicer,
Special Servicer or Depositor pursuant to Section 9.01);
(vi) to reimburse the Trustee first and then itself for any
unreimbursed Servicing Advances, the Trustee's or the Master
Servicer's right, as the case may be, to reimbursement pursuant to
this clause (vi) with respect to any Servicing Advance being limited
to, payments made by the related Mortgagor that are allocable to
such Servicing Advance, or from the Liquidation Proceeds, Insurance
Proceeds and, if applicable, REO Revenues received in respect of the
particular Mortgage Loan or REO Property as to which such Servicing
Advance was made;
(vii) to reimburse the Trustee first and then itself for any
unreimbursed Advances that have been determined to be Nonrecoverable
Advances or to pay, with respect to any Mortgage Loan or REO Loan as
to which a Final Recovery Determination has been made, any related
earned Master Servicing Fee to itself, that remained unpaid in
accordance with clause (iii) above;
(viii) at such time as it reimburses itself or the Trustee for
any unreimbursed Advance pursuant to clause (ii), (vi) or (vii)
above to pay the Trustee first, and then itself first out of default
interest and late charges received with respect to the related
Mortgage Loan and then out of general collections on the Mortgage
Loans and any REO Properties, any interest accrued and payable
thereon in accordance with Section 3.03(d) or 4.03(d), as
applicable;
(ix) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), interest and investment income
earned in respect of amounts held in the Certificate Account as
provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the Certificate Account for any
Collection Period;
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(x) to pay, out of general collections on the Mortgage Loans
and any REO Properties, for the cost of an Independent Appraiser or
other expert in real estate matters retained pursuant to Section
3.03(e) or 4.03(c);
(xi) to pay, out of general collections on the Mortgage Loans
and any REO Properties, itself, the Special Servicer, the Depositor,
or any of their respective directors, officers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Section 6.03;
(xii) to pay, out of general collections on the Mortgage Loans
and any REO Properties, for (A) the cost of the Opinions of Counsel
contemplated by Section 11.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in connection
with any amendment to this Agreement requested by the Master
Servicer or the Special Servicer that protects or is in furtherance
of the rights and interests of Certificateholders, and (C) the cost
of recording this Agreement in accordance with Section 11.02(a);
(xiii) to pay itself, the Special Servicer, the appropriate
Mortgage Loan Seller, the Majority Subordinate Certificateholder or
any other Person, as the case may be, with respect to each Mortgage
Loan, if any, previously purchased by such Person pursuant to this
Agreement, all amounts received thereon subsequent to the date of
purchase; and
(xiv) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis in the case of REO
Property when appropriate, in connection with any withdrawal from the
Certificate Account pursuant to clauses (ii) - (xiv) above.
The Master Servicer shall pay to the Special Servicer or the Trustee
from the Certificate Account amounts permitted to be paid to the Special
Servicer or the Trustee therefrom promptly upon receipt of a certificate of a
Servicing Officer of the Special Servicer or of a Responsible Officer of the
Trustee, as the case may be, describing the item and amount to which the Special
Servicer or the Trustee is entitled. The Trustee and the Special Servicer may
not submit more than one such certificate in any one month. The Master Servicer
may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Property, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Certificate Account. With respect
to each Mortgage Loan for which it makes an Advance, the Trustee shall keep and
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maintain separate accounting for each Mortgage Loan, on a loan by loan and
property basis, for the purpose of justifying any request for withdrawal from
the Certificate Account for reimbursements of Advances or interest thereon.
(b) The Paying Agent may, from time to time, make withdrawals from
the Distribution Account for any of the following purposes (in no particular
order of priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay the Trustee or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b) or (c);
(iii) [RESERVED]
(iv) to pay for the cost of the Opinions of Counsel sought by
the Trustee as provided in clause (v) of the definition of
"Disqualified Organization";
(v) to pay any and all federal, state and local taxes imposed
on any of the REMICs created hereunder or on the assets or
transactions of any such REMIC, together with all incidental costs
and expenses, to the extent none of the Trustee, the REMIC
Administrator, the Depositor, the Master Servicer or the Special
Servicer is liable therefor pursuant to Section 10.01(j);
(vi) to pay the REMIC Administrator any amounts reimbursable
to it pursuant to Section 10.01(f);
(vii) to pay to the Master Servicer any amounts deposited by
the Master Servicer in the Distribution Account not required to be
deposited therein; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
SECTION 3.06 Investment of Funds in the Servicing Accounts,
the Reserve Accounts, the Certificate Account
and the REO Account.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Certificate
Account or to the extent permitted by the related Mortgage Loan documents, the
escrow account
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established thereunder (each, for purposes of this Section 3.06, an "Investment
Account"), and the Special Servicer may direct in writing any depository
institution maintaining the REO Account (also, for purposes of this Section
3.06, an "Investment Account"), to invest, or if it is such depository
institution, may itself invest, the funds held therein in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn from such
account pursuant to this Agreement. In the case of any Servicing Account or
Reserve Account, the Master Servicer shall act upon the written request of the
related Mortgagor to the extent the Master Servicer is required to do so under
the terms of the related Mortgage Loan, provided that in the absence of
appropriate written instructions from such Mortgagor meeting the requirements of
this Section 3.06, the Master Servicer shall have no obligation to, but will be
entitled to, direct the investment of funds in such Servicing Accounts or
Reserve Accounts. In the event that the Master Servicer shall have failed to
give investment directions for any Servicing Account, any Reserve Account or the
Certificate Account (exclusive of any accounts as are held by the Master
Servicer) or the Special Servicer shall have failed to give investment
directions for the REO Account by 11:00 A.M. New York time on any Business Day
on which there may be uninvested cash, such funds held in the REO account shall
be invested in securities described in clause (i) of the definition of the term
"Permitted Investments"; and such funds held in such other accounts shall be
invested in securities described in clause (v) of such definition. All such
Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such). The Master Servicer (with respect to
Permitted Investments of amounts in the Servicing Accounts, the Reserve Accounts
and the Certificate Account) and the Special Servicer (with respect to Permitted
Investments of amounts in the REO Account), on behalf of the Trustee, shall (and
Trustee hereby designates the Master Servicer and the Special Servicer, as
applicable, as the Person that shall) (i) be the "entitlement holder" of any
Permitted Investment that is a "security entitlement" and (ii) maintain
"control" of any Permitted Investment that is either a "certificated security"
or an "uncertificated security". For purposes of this Section 3.06(a), the terms
"entitlement holder", "security entitlement", "control", "certificated security"
and "uncertificated security" shall have the meanings given such terms in
Revised Article 8 (1994 Revision) of the UCC, and "control" of any Permitted
Investment by the Master Servicer or the Special Servicer shall constitute
"control" by a Person designated by, and acting on behalf of, the Trustee for
purposes of Revised Article 8 (1994 Revision) of the UCC. If amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Master Servicer (in the case of the Certificate Account,
Servicing Accounts and Reserve Accounts), or the Special Servicer (in the case
of the REO Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of
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(1) all amounts then payable thereunder and (2) the amount required to be
withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the case
may be, that such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the Investment
Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts or the Certificate
Account, interest and investment income realized on funds deposited therein, to
the extent of the Net Investment Earnings, if any, for each Collection Period,
unless the Mortgage Loan documents provide otherwise, shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.03(a), 3.03(f) or 3.05(a), as applicable. Whether
or not the Special Servicer directs the investment of funds in the REO Account,
interest and investment income realized on funds deposited therein, to the
extent of the Net Investment Earnings, if any, for each Collection Period, shall
be for the sole and exclusive benefit of the Special Servicer and shall be
subject to its withdrawal from time to time. If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account, the
Master Servicer (in the case of the Certificate Account, the Servicing Accounts
and the Reserve Accounts) and the Special Servicer (in the case of the REO
Account) shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the P&I Advance Date after the Collection Period
during which such loss was incurred, the amount of the Net Investment Loss, if
any, for such Collection Period, except to the extent that amounts are invested
for the benefit of the Mortgagor under applicable law or the terms of the
related Mortgage Loan. The income and gain realized from investment of funds
deposited in any Servicing Account or Reserve Account shall be paid from time to
time to the related Mortgagor to the extent required under the Mortgage Loan or
applicable law.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment and the Special Servicer or the Master Servicer fails to deposit any
losses with respect to such Permitted Investment pursuant to Section 3.06(b),
the Trustee may and, subject to Section 8.02, upon the written request of
Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class, shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the
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calculation of the Available Distribution Amount, the amounts so invested shall
be deemed to remain on deposit in such Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer shall, consistent with the Servicing
Standard, use its best efforts to cause the related Mortgator to maintain, or if
such Mortgagor does not so maintain, shall itself maintain (subject to the
provisions of this Agreement concerning Nonrecoverable Servicing Advances) to
the extent the Trustee as mortgagee has an insurable interest and to the extent
available at commercially reasonable rates, cause to be maintained for each
Mortgaged Property (other than REO Property) all insurance coverage as is
required under the related Mortgage; provided that if and to the extent that any
such Mortgage permits the holder thereof any discretion (by way of consent,
approval or otherwise) as to the insurance coverage that the related Mortgagor
is required to maintain, the Master Servicer shall exercise such discretion in a
manner consistent with the Servicing Standard; and provided further that, if and
to the extent that a Mortgage so permits, the related Mortgagor shall be
required to exercise its reasonable best efforts to obtain the required
insurance coverage from Qualified Insurers that have a "claims paying ability"
rating of at least "A" from Standard & Poor's and a comparable rating from at
least one other nationally recognized statistical rating agency; provided,
however, if the related Mortgage Loan documents require a higher rating, then
such higher rating shall be required. The Majority Subordinate Certificateholder
may request that earthquake insurance be secured by the Master Servicer or the
Special Servicer, as applicable, for one or more Mortgaged Properties at the
expense of the Majority Subordinate Certificateholder. Subject to Section
3.17(b), the Special Servicer shall also cause to be maintained, to the extent
available at commercially reasonable rates, for each REO Property no less
insurance coverage than was previously required of the Mortgagor under the
related Mortgage; provided that all such insurance shall be obtained from
Qualified Insurers that, if they are providing insurance, shall have a claims
paying ability rating of at least "A" from Standard & Poor's and DCR (or
Standard & Poor's and a comparable rating from one other nationally recognized
statistical rating agency, if such insurer is not rated by DCR) or such lower
rating as will not result in qualification, downgrading or withdrawal of the
ratings then assigned to the Certificates, as evidenced in writing by the Rating
Agencies; provided, however, if the related Mortgage Loan documents require a
higher rating, then such higher rating shall be required. In the case of any
insurance otherwise required to be maintained pursuant to this section that is
not being so maintained because the Master Servicer or the Special Servicer, as
applicable, has deemed that it is not available at commercially reasonable
rates, the Master Servicer or the Special Servicer, as applicable, shall deliver
an Officer's Certificate to the Trustee detailing the steps that the Master
Servicer or the Special Servicer, as applicable, took in seeking such insurance
and the factors which led to its determination that such insurance is not so
available. All such insurance policies shall contain (if they insure against
loss to
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property and do not relate to an REO Property) a "standard" mortgagee clause,
with loss payable to the Master Servicer (in the case of insurance maintained in
respect of Mortgage Loans), and shall be in the name of the Special Servicer (in
the case of insurance maintained in respect of REO Properties), on behalf of the
Trust Fund; in each case such insurance shall be issued by an insurer authorized
under applicable law to issue such insurance. Any amounts collected by the
Master Servicer or the Special Servicer under any such policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Mortgagor, in
each case subject to the rights of any tenants and ground lessors, as the case
may be, and in each case in accordance with the terms of the related Mortgage
and the Servicing Standard) shall be deposited in the Certificate Account,
subject to withdrawal pursuant to Section 3.05(a), in the case of amounts
received in respect of a Mortgage Loan, or in the REO Account, subject to
withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an REO Property. Any cost incurred by the Master Servicer or the
Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to unpaid principal balance of the related Mortgage
Loan, notwithstanding that the terms of such Mortgage Loan so permit. Costs to
the Master Servicer of maintaining insurance policies pursuant to this Section
3.07 shall be paid by the Master Servicer as a Servicing Advance and shall be
reimbursable to the Master Servicer with interest at the applicable
Reimbursement Rate, and costs to the Special Servicer of maintaining insurance
policies pursuant to this Section 3.07 shall be paid and reimbursed in
accordance with Section 3.17(b).
(b) (I) If the Master Servicer or the Special Servicer shall obtain
and maintain, or cause to be obtained and maintained, a blanket policy insuring
against losses on all of the Mortgage Loans and/or REO Properties that it is
required to service and administer, then, to the extent such policy (i) is
obtained from a Qualified Insurer having a claims-paying rating of "A" or better
from Standard & Poor's and DCR, respectively (or Standard & Poor's and a
comparable rating from one other nationally recognized statistical rating
agency, if such insurer is not rated by DCR) or such lower rating of any Rating
Agency or rating from any other nationally recognized statistical rating agency
as will not result in qualification, downgrading or withdrawal of the ratings
then assigned to the Certificates, as evidenced in writing by the Rating
Agencies, and (ii) provides protection equivalent to the individual policies
otherwise required, the Master Servicer or the Special Servicer, as the case may
be, shall conclusively be deemed to have satisfied its obligation to cause such
insurance to be maintained on the related Mortgaged Properties and/or REO
Properties. Such blanket policy may contain a deductible clause (not in excess
of a customary amount), in which case the Master Servicer or the Special
Servicer, as appropriate, shall, if there shall not have been maintained on the
related Mortgaged Property or REO Property an insurance policy complying with
the requirements of Section 3.07(a), and there shall have been one or more
losses that would have been covered by such policy, promptly deposit into the
Certificate Account from its own funds the amount not otherwise payable under
the
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blanket policy because of such deductible clause to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan, or, in the absence of such deductible limitation, the deductible
limitation which is consistent with the Servicing Standard. The Master Servicer
or the Special Servicer, as appropriate, shall prepare and present, on behalf of
itself, the Trustee and Certificateholders, claims under any such blanket policy
in a timely fashion in accordance with the terms of such policy.
(II) 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 meeting the rating criteria specified in (b)(I), and which policy
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
3.07(a), the Master Servicer or Special Servicer shall conclusively be deemed to
have satisfied its obligations to maintain insurance pursuant to Section
3.07(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 3.07(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 Certificate 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 the Servicing Standard.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in
force with Qualified Insurers a fidelity bond issued by an insurer having a
claims-paying rating of "A" or better from Standard & Poor's and DCR (if then
rated by DCR), or such lower rating of any Rating Agency or rating from any
other nationally recognized statistical rating agency as will not result in
qualification, downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies, such fidelity bond
to be in such form and amount as would permit it to be a qualified FNMA
seller-servicer of multifamily mortgage loans, or in such other form and amount
as would not cause the qualification, downgrading or withdrawal of any rating
assigned by any Rating Agency to the Certificates (as evidenced in writing from
each Rating Agency). Each of the Master Servicer and the Special Servicer shall
be deemed to have complied with the foregoing provision if an Affiliate thereof
has such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to the Master Servicer or the Special
Servicer, as the case may be. Such fidelity bond shall provide for ten days'
written notice to the Trustee prior to any cancellation.
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Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with Qualified Insurers having a claims-paying rating of "A"
or better from Standard & Poor's and DCR (if then rated by DCR) or such lower
rating as will not result in qualification, downgrading or withdrawal of the
ratings then assigned to the Certificates, as evidenced in writing by the Rating
Agencies, respectively, a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its servicing obligations hereunder, which policy or policies
shall be in such form and amount as would permit it to be a qualified FNMA
seller-servicer of multifamily mortgage loans, or in such other form and amount
as would not adversely affect any rating assigned by any Rating Agency to the
Certificates (as evidenced in writing from each Rating Agency). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provisions if an Affiliate thereof has such insurance and, by the
terms of such policy or policies, the coverage afforded thereunder extends to
the Master Servicer or the Special Servicer, as the case may be. Any such errors
and omissions policy shall provide for ten days' written notice to the Trustee
prior to cancellation. The Master Servicer and the Special Servicer shall each
cause the Trustee to be an additional insured or loss payee on any policy
currently in place or procured pursuant to the requirements of this Section 3.07
(c).
For so long as the long-term debt obligations of the Master Servicer
or Special Servicer or their parent corporations, as the case may be, are rated
at least "A" or the equivalent by all of the Rating Agencies (or such lower
rating as will not result in qualification, downgrading or withdrawal of the
ratings then assigned to the Certificates, as evidenced in writing by the Rating
Agencies), such Person may self-insure with respect to the risks described in
this subsection(c).
SECTION 3.08. Enforcement of Alienation Clauses.
With respect to all Specially Serviced Mortgage Loans, the Special
Servicer, and with respect to all other Mortgage Loans, the Master Servicer, on
behalf of the Trustee as the mortgagee of record, shall, to the extent permitted
by applicable law, enforce the restrictions contained in the related Mortgage on
transfers or further encumbrances of the related Mortgaged Property and on
transfers of interests in the related Mortgagor, unless (i) the Special Servicer
or Master Servicer, as applicable, has determined, consistent with the Servicing
Standard, that waiver of such restrictions would be in accordance with the
Servicing Standard and (ii) such waiver is consistent with Section 6.11.
Promptly after the Special Servicer or Master Servicer, as applicable, has made
any such determination, the Special Servicer or Master Servicer, as applicable,
shall deliver to the Majority Subordinate Certificateholder, the Trustee, the
Rating Agencies and the Master Servicer (in the case of the Special Servicer) an
Officers'
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Certificate setting forth the basis for such determination. Neither the Master
Servicer nor the Special Servicer shall (a) grant any such waiver in respect of
a due-on-encumbrance provision for any Mortgage Loan without receiving the prior
written confirmation from the Rating Agencies that such action would not result
in a downgrading, qualification or withdrawal of the ratings then assigned to
the Certificates (the Master Servicer or the Special Servicer, as applicable,
shall use its reasonable efforts to have the cost, if any, of obtaining such
confirmation paid by the Mortgagor; if such cost is not paid by the Mortgagor,
the Master Servicer shall advance such amount as a Servicing Advance, unless
such Advance would be a Nonrecoverable Advance) or (b) grant a waiver in respect
of a due on sale provision for any Mortgage Loan (or a group of Mortgage Loans
that are cross-collateralized or cross defaulted with each other or which relate
to a single Mortgagor or group of affiliated Mortgagors) that has a then current
stated Principal Balance at the time of such determination either (i) in excess
of 5% of the aggregate the current Stated Principal Balance of all Mortgage
Loans or (ii) in excess of $20 million, without receiving the prior written
confirmation from the Rating Agencies that such action would not result in a
downgrading, qualification or withdrawal of the ratings then assigned to the
Certificates (the Master Servicer or the Special Servicer, as applicable, shall
use its reasonable efforts to have the cost, if any, of obtaining such
confirmation paid by the Mortgagor; if such cost is not paid by the Mortgagor,
the Master Servicer shall advance such amount as a Servicing Advance, unless
such Advance would be a Nonrecoverable Advance); provided that with respect to
DCR, such prior written confirmation shall be required in all instances of
transfers and encumbrances only to the extent the Principal Balance at the time
of determination equals or exceeds 2% of the aggregate Stated Principal Balance
of all Mortgage Loans. In all cases, DCR shall be provided with the Special
Servicer's analysis, recommendation and relevant documents..
SECTION 3.09. Realization Upon Defaulted Mortgage Loans;
Required Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b) through
3.09(d), Section 3.18 and Section 6.11, exercise reasonable efforts, consistent
with the Servicing Standard, to foreclose upon or otherwise comparably convert
the ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, including, without limitation, pursuant to
Section 3.20. The Master Servicer shall advance as a Servicing Advance all costs
and expenses (other than costs or expenses that would, if incurred, constitute a
Nonrecoverable Servicing Advance) incurred by the Special Servicer in any such
proceedings, and shall be entitled to reimbursement therefor as provided in
Section 3.05(a). Nothing contained in this Section 3.09 shall be construed so as
to require the Master Servicer or the Special Servicer, on behalf of the Trust
Fund, to make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by Master Servicer or the Special Servicer, as applicable, in its
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reasonable and good faith judgment taking into account the factors described in
Section 3.18(e) and the results of any appraisal obtained pursuant to the
following sentence, all such bids to be made in a manner consistent with the
Servicing Standard. If and when the Master Servicer or the Special Servicer
deems it necessary and prudent for purposes of establishing the fair market
value of any Mortgaged Property securing a defaulted Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, it may, at the expense of the
Trust Fund, have an Appraisal performed with respect to such property by an
Independent Appraiser or other expert in real estate matters; which Appraisal
shall take into account the factors specified in Section 3.18(e), including,
without limitation, any environmental, engineering or other third party reports
available, and other factors that a prudent real estate appraiser would
consider. With respect to each Required Appraisal Mortgage Loan, the Special
Servicer will be required to use its best efforts to obtain a Required Appraisal
within 60 days of a Mortgage Loan becoming a Required Appraisal Mortgage Loan
(unless (1) an appraisal meeting the requirements of a Required Appraisal was
obtained for such Required Appraisal Mortgage Loan within the prior 12 months in
which case such appraisal shall be the Required Appraisal or (2) such Mortgage
Loan became a Required Appraisal Mortgage Loan pursuant to clause (i) of the
definition of "Required Appraisal Mortgage Loan," in which case the Special
Servicer will be required to obtain a Required Appraisal within the 120-day
period described in such clause (i)) and thereafter shall obtain a letter update
of such Required Appraisal once every 12 months if such Mortgage Loan remains a
Required Appraisal Mortgage Loan. The Master Servicer shall advance the cost of
such Required Appraisal; provided, however, that such expense will be subject to
reimbursement to the Master Servicer as a Servicing Advance out of the
Certificate Account pursuant to Section 3.05(a). At any time that any Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, the
Controlling Class Representative may, at its own expense, obtain and deliver to
the Master Servicer and the Trustee an appraisal that satisfies the requirements
of a "Required Appraisal", and upon the written request of the Controlling Class
Representative, the Master Servicer shall recalculate the Appraisal Reduction
Amount in respect of such Required Appraisal Loan based on such appraisal and
notify the Trustee, the Special Servicer and the Controlling Class
Representative of such recalculated Appraisal Reduction Amount.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 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 (the cost of which shall be paid by the Master Servicer as a
Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of
a tax
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on any of REMIC I, REMIC II or REMIC III under the REMIC Provisions
or cause any of REMIC I, REMIC II or REMIC III to fail to qualify as
a REMIC at any time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trust Fund, obtain title to a Mortgaged Property by deed in lieu of foreclosure
or otherwise, or take any other action with respect to any Mortgaged Property,
if, as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable judgment of the Master Servicer or
the Special Servicer, as the case may be, in accordance with the Servicing
Standard, 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 CERCLA or any comparable law (a "potentially responsible party"), unless (as
evidenced by an Officers' Certificate to such effect delivered to the Trustee
that shall specify all of the bases for such determination) the Special Servicer
has previously determined in accordance with the Servicing Standard, and based
on an Environmental Assessment of such Mortgaged Property which was performed by
an Independent Person who regularly conducts Environmental Assessments and which
was performed within six months prior to any such acquisition of title or other
action (a copy of such Environmental Assessment shall be delivered to the
Trustee and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would
maximize the recovery to the Certificateholders on a present value
basis (the relevant discounting of anticipated collections that will
be distributable to Certificateholders to be performed at the
related Mortgage Rate) to acquire title to or possession of the
Mortgaged Property and to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith in all
material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such
circumstances or conditions are present for which any such action
could reasonably be expected to be required, that it would maximize
the recovery to the Certificateholders on a present value basis (the
relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related
Mortgage Rate) to acquire title to or possession of the Mortgaged
Property and to take such actions with respect to the affected
Mortgaged Property.
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The Special Servicer shall undertake, in good faith, reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment, as well as
the cost of any remedial, corrective or other further action contemplated by
clause (i) and/or clause (ii) of the preceding paragraph, may be reimbursed to
the Special Servicer from the Certificate Account as a Servicing Advance; and if
any such Environmental Assessment so warrants, the Special Servicer shall, as a
Servicing Advance, perform such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied.
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, if no breach of a
representation or warranty with respect to the Mortgage Loan has occurred and is
continuing, at such time as it deems appropriate, may, on behalf of the Trustee,
release all or a portion of such Mortgaged Property from the lien of the related
Mortgage; provided that if such Mortgage Loan has a then outstanding principal
balance of greater than $1 million, prior to the release of all or a portion of
the related Mortgaged Property from the lien of the related Mortgage, (i) the
Special Servicer shall have notified the Rating Agencies, Trustee, the
Controlling Class Representative and the Master Servicer in writing of its
intention to so release all or a portion of such Mortgaged Property and the
bases for such intention and (ii) the Trustee shall have notified the
Certificateholders in writing of the Special Servicer's intention to so release
all or a portion of such Mortgaged Property.
(e) The Special Servicer shall report to the Master Servicer, the
Trustee and the Controlling Class Representative monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property
that represents security for a defaulted Mortgage Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earlier to occur of
satisfaction of all such conditions and release of the lien of the related
Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
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(g) The Special Servicer shall prepare and file information returns
with respect to the receipt of mortgage interest received in a trade or
business, the reports of foreclosures and abandonments of any Mortgaged Property
and the information returns relating to cancellation of indebtedness income with
respect to any Mortgaged Property required by Sections 6050H, 6050J and 6050P of
the Code and each year deliver to the Trustee and the Master Servicer an
Officers' Certificate stating that such reports have been filed. Such reports
shall be in form and substance sufficient to meet the reporting requirements
imposed by Sections 6050H, 6050J and 6050P of the Code.
(h) The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each Final Recovery Determination in respect of any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officers' Certificate delivered to the
Trustee, the Master Servicer and the Controlling Class Representative no later
than the third Business Day following such Final Recovery Determination.
(i) Upon reasonable request of the Master Servicer or the
Controlling Class Representative, the Special Servicer shall deliver to it and
the related Sub-Servicer any other information and copies of any other documents
in its possession with respect to a Specially Serviced Mortgage Loan or the
related Mortgaged Property.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall promptly notify
the Trustee in writing who shall release or cause the related Custodian to
release, by a certification (which certification shall be in the form of a
Request for Release in the form of Exhibit D-1 attached hereto and shall be
accompanied by the form of a release or discharge and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the Certificate Account
pursuant to Section 3.04(a) have been or will be so deposited) of a Servicing
Officer (a copy of which certification shall be delivered to the Special
Servicer) and shall request delivery to it of the related Mortgage File. Upon
receipt of such certification and request, the Trustee shall release, or cause
any related Custodian to release, the related Mortgage File to the Master
Servicer and shall deliver to the Master Servicer such release or discharge,
duly executed. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the Trustee,
upon request of the
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Master Servicer and receipt from the Master Servicer of a Request for Release in
the form of Exhibit D-1 attached hereto signed by a Servicing Officer thereof,
or upon request of the Special Servicer and receipt from the Special Servicer of
a Request for Release in the form of Exhibit D-2 attached hereto, shall release,
or cause any related Custodian to release, such Mortgage File (or portion
thereof) to the Master Servicer or the Special Servicer, as the case may be.
Upon return of such Mortgage File (or portion thereof) to the Trustee or related
Custodian, or the delivery to the Trustee of a certificate of a Servicing
Officer of the Special Servicer stating that such Mortgage Loan was liquidated
and that all amounts received or to be received in connection with such
liquidation that are required to be deposited into the Certificate Account
pursuant to Section 3.04(a) have been or will be so deposited, or that such
Mortgage Loan has become an REO Property, the original Request for Release shall
be released by the Trustee or related Custodian to the Master Servicer or the
Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but
no less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee of an exigency) of the
Special Servicer's request therefor, the Trustee shall execute and deliver to
the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, any court pleadings, requests for trustee's sale or other documents
stated by the Special Servicer to be reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or REO Property or to any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity or to defend any legal action or counterclaim
filed against the Trust Fund, the Master Servicer or the Special Servicer.
Together with such documents or pleadings, the Special Servicer shall deliver to
the Trustee a certificate of a Servicing Officer requesting that such pleadings
or documents be executed by the Trustee and certifying as to the reason such
documents or pleadings are required and that the execution and delivery thereof
by the Trustee will not invalidate or otherwise affect the lien of the Mortgage,
except for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
SECTION 3.11. Servicing Compensation.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan) and REO
Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall
accrue at the related Master Servicing Fee Rate and on the same principal amount
and in the same manner respecting which the related interest payment due on such
Mortgage Loan (which, for
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the Meidinger Senior Interest, is the principal balance thereof) or deemed to be
due on such REO Loan is computed. The Master Servicing Fee with respect to any
Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in
respect thereof. Earned but unpaid Master Servicing Fees shall be payable
monthly, on a loan-by-loan basis, from payments of interest on each Mortgage
Loan and REO Revenues allocable as interest on each REO Loan. The Master
Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of
any Mortgage Loan or REO Loan (i) out of that portion of related Insurance
Proceeds or Liquidation Proceeds allocable as recoveries of interest, to the
extent permitted by Section 3.05(a)(iii) and (ii) as otherwise permitted by
Section 3.05(a)(vii). The right to receive the Master Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Master Servicer's responsibilities and obligations under this Agreement. In
the event Midland Loan Services, Inc. is terminated as Master Servicer, Midland
Loan Services, Inc. will retain each month, and the Master Servicing Fee will be
reduced by, an amount equal to .025% per annum multiplied by the principal
balance of such Mortgage Loan as described in the calculation of the Master
Servicing Fee.
(b) Additional servicing compensation in the form of (i) late
charges and default interest (except to the extent such late charges and default
interest are applied to offset interest accrued on Advances with respect to the
related Mortgage Loan), assumption fees, extension fees, charges for beneficiary
statements or demands, exit fees, repayment fees, amounts collected for checks
returned for insufficient funds (including with respect to Specially Serviced
Mortgage Loans) and any similar fees (excluding Prepayment Premiums), in each
case to the extent actually paid by a Mortgagor with respect to a Mortgage Loan
that is not a Specially Serviced Mortgage Loan, after all amounts due on such
Mortgage Loan have been paid, may be retained by the Master Servicer and are not
required to be deposited in the Certificate Account. The Master Servicer shall
also be entitled to additional servicing compensation in the form of (i)
Prepayment Interest Excesses (but only insofar as the aggregate of such
Prepayment Interest Excesses collected during any Collection Period exceeds the
aggregate amount of Prepayment Interest Shortfalls incurred during such
Collection Period) and (ii) interest and other income earned on the Certificate
Account and to the extent not required to be paid to any Mortgagor under
applicable law, interest or other income earned on deposits in the Reserve
Accounts and the Servicing Accounts in accordance with Section 3.06(b) (but only
to the extent of the Net Investment Earnings, if any, with respect to each such
account for each Collection Period). The Master Servicer shall be required to
pay out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts due and owing to any of its Sub-Servicers), if and to the extent such
expenses are not payable directly out of the Certificate Account, and the Master
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
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(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate on the same principal amount and
in the same manner respecting which the related interest payment due on such
Mortgage Loan or deemed to be due on such REO Loan is computed. The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan
shall cease to accrue as of the date a Liquidation Event occurs in respect
thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special
Servicing Fees shall be payable monthly out of general collections on the
Mortgage Loans and any REO Properties on deposit in the Certificate Account
pursuant to Section 3.05(a).
In addition, with respect to each Specially Serviced Mortgage Loan,
Corrected Mortgage Loan and REO Loan, the Special Servicer shall be entitled to
the Recovery Fee payable out of, and equal to 1.0% of, all amounts (whether in
the form of payments, Insurance Proceeds, Liquidation Proceeds or REO Revenues)
received in respect of such Mortgage Loan (or, in the case of an REO Loan, in
respect of the related REO Property); provided that no Recovery Fee shall be
payable in connection with, or out of Liquidation Proceeds resulting from, the
purchase of any Mortgage Loan or REO Property by the applicable Mortgage Loan
Seller pursuant to the respective Mortgage Loan Purchase Agreement, by the
Majority Subordinate Certificateholder pursuant to Section 3.18(b), by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder pursuant to
Section 9.01; provided, further, that no Recovery Fee shall be payable with
respect to any Corrected Mortgage Loan unless such Mortgage Loan became a
Corrected Mortgage Loan as a result of the curing of any event of default under
such Mortgage Loan through a written modification, restructuring or waiver
negotiated by the Special Servicer; provided further that if any Person is
acting as Special Servicer at such time as any Specially Serviced Mortgage Loan
became a Corrected Mortgage Loan and such Person is subsequently terminated as
Special Servicer hereunder, and if such Corrected Mortgage Loan was still a
Corrected Mortgage Loan at the time of such termination, then such Person shall,
following such termination, continue to be entitled to all Recovery Fees payable
in respect to such Corrected Mortgage Loan, and no successor Special Servicer
shall be entitled to any Recovery Fees payable in respect thereof, in either
case unless and until such Corrected Mortgage Loan again becomes a Specially
Serviced Mortgage Loan or becomes an REO Loan; and provided further that if any
Person is terminated as Special Servicer hereunder while the sale of any
Specially Serviced Mortgage Loan or REO Property is pending, then (subject to
the second preceding proviso) such Person shall be entitled to all, and the
successor Special Servicer shall be entitled to none, of the Recovery Fee
payable in connection with the receipt of the Liquidation Proceeds derived from
such sale.
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The Special Servicer's right to receive the Special Servicing Fee
and the Recovery 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 Sections 6.02, 6.04 and 6.09.
(d) Additional servicing compensation in the form of (i) late
charges and default interest (except to the extent such late charges and default
interest are applied to offset interest accrued on Advances), assumption fees,
extension fees, modification fees, charges for beneficiary statements or
demands, exit fees, repayment fees and any similar fees (excluding Prepayment
Premiums), in each case to the extent actually paid by a Mortgagor with respect
to a Specially Serviced Mortgage Loan, shall be retained by the Special Servicer
or promptly paid to the Special Servicer by the Master Servicer and shall not be
required to be deposited in the Certificate Account pursuant to Section 3.04(a).
The Special Servicer shall also be entitled to additional servicing compensation
in the form of any interest or other income earned on deposits in the REO
Accounts maintained by the Special Servicer. The Special Servicer shall be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including, without limitation, payment
of any amounts due and owing to any of its Sub-Servicers and the premiums for
any blanket policy obtained by it insuring against hazard losses pursuant to
Section 3.07(b)), and the Special Servicer shall be entitled to reimbursement
therefor as expressly provided in Section 3.05(a) if and to the extent such
expenses are not payable directly out of the Certificate Account or the REO
Account.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer (with respect to Specially Serviced
Mortgage Loans or REO Property) shall at its expense perform or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
after the related Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Special Servicer (with respect to Specially Serviced Mortgage Loans or REO
Property) or the Master Servicer (with respect to all other Mortgage Loans),
shall at its expense perform or cause to be performed an inspection of all the
Mortgaged Properties at least once every two calendar years (or in the case of
Mortgage Loans with an outstanding principal balance greater than $2,000,000, at
least once per calendar year), if the Special Servicer has not already done so
in that calendar year pursuant to the preceding sentence. The initial inspection
hereunder with respect to each Mortgaged Property shall be completed by December
31, 1999. The Master Servicer and the Special Servicer shall prepare a written
report of each such inspection performed by it that sets forth in detail the
condition of the Mortgaged Property and that specifies the existence of: (i) any
sale, transfer or abandonment of the Mortgaged Property of which the Special
Servicer is aware, (ii) any change in the condition or value of the Mortgaged
Property that it, in its reasonable judgment, considers material, or (iii) any
waste committed on the
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Mortgaged Property. The Master Servicer and the Special Servicer, as applicable,
shall make copies of all such inspection reports available for review by
Certificateholders and Certificate Owners during normal business hours at the
offices of the Master Servicer and the Special Servicer, as applicable, within
30 days after the related inspection. The Master Servicer and the Special
Servicer, as applicable, shall forward copies of any such inspection reports to
the applicable Sub Servicer, the Trustee, the Rating Agencies and the
Controlling Class Representative within 10 days after the preparation thereof.
The Special Servicer will, promptly (but in no event later than 60
days) after a Mortgage Loan becomes a Specially Serviced Mortgage Loan, give
written notice to each Rating Agency, the Master Servicer, the Controlling Class
Representative and the Trustee which will include an explanation as to the
reasons such Mortgage Loan became a Specially Serviced Mortgage Loan and the
Special Servicer's plan for servicing such Mortgage Loan.
(b) Not later than 2:00 P.M. on the second Business Day prior to
each Determination Date, the Special Servicer shall deliver or cause to be
delivered to the Master Servicer the following reports with respect to the
Mortgage Loans (and, if applicable, the related REO Properties) providing the
required information as of the end of the preceding calendar month: (i) a CSSA
Property File Report; (ii) a Comparative Financial Status Report; (iii) a NOI
Adjustment Worksheet and (iv) an Operating Statement Analysis. Not later than
2:00 P.M. on the second Business Day following each Determination Date, the
Special Servicer shall deliver or cause to be delivered to the Master Servicer
the following reports with respect to the Mortgage Loans (and, if applicable,
the related REO Properties) providing the required information as of such
Determination Date: (i) Delinquent Loan Status Report; (ii) a Historical Loss
Estimate Report; (iii) a Historical Loan Modification Report; (iv) an REO Status
Report; (v) a Watch List Report; and (vi) a Loan Pay-off Notification Report.
(c) Not later than 12:00 Noon on the third Business Day after each
Determination Date, the Master Servicer shall deliver or cause to be delivered
to the Trustee and the Rating Agencies (A) the following reports with respect to
the Mortgage Loans (and, if applicable, the related REO Properties) providing
the required information as of the end of the preceding calendar month: (i) the
CSSA Property File Report received from the Special Servicer pursuant to Section
3.12(b); (ii) the Comparative Financial Status Report received from the Special
Servicer pursuant to Section 3.12(b); (iii) the NOI Adjustment Worksheet
received from the Special Servicer pursuant to Section 3.12(b) and (iv) the
Operating Statement Analysis received from the Special Servicer pursuant to
Section 3.12(b) and (B) the following reports with respect thereto providing the
required information as of such Determination Date: (i) the Delinquent Loan
Status Report; (ii) the Historical Loss Estimate Report received from the
Special Servicer pursuant to Section 3.12(b); (iii) the Historical Loan
Modification Report received from the Special Servicer pursuant to Section
3.12(b); (iv) the REO
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Status Report received from the Special Servicer pursuant to Section 3.12(b);
(v) a Watch List Report; and (vi) a Loan Payoff Notification Report.
(d) The Special Servicer will deliver to the Master Servicer the
reports set forth in Section 3.12(b) and the Master Servicer shall deliver to
the Trustee and the Rating Agencies the reports set forth in Section 3.12(c) in
an electronic format reasonably acceptable to the Special Servicer and the
Master Servicer with respect to the reports set forth in Section 3.12(b), and
the Master Servicer and the Trustee with respect to the reports set forth in
Section 3.12(c). The Master Servicer may, absent manifest error, conclusively
rely on the reports to be provided by the Special Servicer pursuant to Section
3.12(b). The Trustee may, absent manifest error, conclusively rely on the
reports to be provided by the Master Servicer pursuant to Section 3.12(c). In
the case of information or reports to be furnished by the Master Servicer to the
Trustee pursuant to Section 3.12(c), to the extent that such information is
based on reports to be provided by the Special Servicer pursuant to Section
3.12(b) and to the extent that such reports are to be prepared and delivered by
the Special Servicer pursuant to Section 3.12(b), the Master Servicer shall have
no obligation to provide such information or reports until it has received such
information or reports from the Special Servicer and the Master Servicer shall
not be in default hereunder due to a delay in providing the reports required by
Section 3.12(c) caused by the Special Servicer's failure to timely provide any
report required under Section 3.12(b) of this Agreement.
The Special Servicer shall, consistent with the Servicing Standard,
endeavor to obtain quarterly and annual operating statements and rent rolls with
respect to each of the Mortgage Loans and REO Properties, which efforts shall
include in the case of Mortgage Loans, a letter sent to the related Mortgagor
each quarter (followed up with telephone calls) requesting such quarterly and
annual operating statements and rent rolls until they are received to the extent
such action is consistent with applicable law. With respect to each Mortgaged
Property and REO Property the Special Servicer will prepare and deliver an
Operating Statement Analysis as set forth in Section 3.12(b) for the related
Mortgaged Property or REO Property for or as of the end the prior calendar month
together with copies of the operating statements and rent rolls for the related
Mortgaged Property or REO Property.
Within ten days after receipt by the Special Servicer of any annual
operating statements with respect to any Mortgaged Property or REO Property, the
Special Servicer shall prepare or update an NOI Adjustment Worksheet for such
Mortgaged Property or REO Property (with the annual operating statements
attached thereto as an exhibit).
The Special Servicer (with respect to Specially Serviced Mortgage
Loans and REO Properties) and the Master Servicer (with respect to all other
Mortgage Loans) shall maintain one Operating Statement Analysis report for each
Mortgaged Property and REO Property. The Operating Statement Analysis report for
each Mortgaged
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Property is to be updated by the Special Servicer or the Master Servicer, as
applicable, and such updated report shall be delivered in electronic format to
the Trustee and the Master Servicer (in the case of the Special Servicer) within
thirty days after receipt by the Special Servicer or the Master Servicer, as
applicable, of updated operating statements for such Mortgaged Property. The
Special Servicer and the Master Servicer, as applicable, will use the
"Normalized" column from the NOI Adjustment Worksheet to update the Operating
Statement Analysis report and will use any operating statements received with
respect to any Mortgaged Property to update the Operating Statement Analysis
report for such Mortgaged Property, such updates to be completed in electronic
format and delivered to the Trustee and the Master Servicer (in the case of the
Special Servicer) within thirty days after receipt of the necessary information.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Underwriters, the Controlling Class Representative, and the
Rating Agencies, and, in the case of the Special Servicer, to the Master
Servicer, on or before April 30 (or March 31 if the Trust Fund is required to
file a Form 10-K with the SEC for the prior calendar year) of each year,
beginning April 30, 1999, an Officers' Certificate stating, as to each signer
thereof, that (i) a review of the activities of the Master Servicer or the
Special Servicer, as the case may be, during the preceding calendar year and of
its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
all of its obligations under this Agreement in all material respects throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof and (iii) the Master Servicer or the Special Servicer, as the
case may be, has received no notice regarding qualification, or challenging the
status, of any portion of the Trust Fund as a REMIC from the Internal Revenue
Service or any other governmental agency or body or, if it has received any such
notice, specifying the details thereof. The Master Servicer and Special Servicer
shall deliver a copy of such Officer's Certificate to the Depositor.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 (or March 31 if the Trust Fund is required to
file a Form 10-K with the SEC for the prior calendar year) of each year,
beginning April 30, 1999 each of the Master Servicer and the Special Servicer at
its expense shall cause a firm of Independent public accountants (which may also
render other services to the Master Servicer or the Special Servicer) that is a
member of the American Institute of Certified Public Accountants to furnish a
statement to the Trustee, the Underwriters, the Rating Agencies, the Depositor
and, in the case of the Special Servicer, to the Master Servicer to the effect
that such firm has examined the servicing operations of the Master Servicer or
the Special Servicer, as the case may be, for the previous calendar year and
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that, on the basis of such examination, conducted substantially in compliance
with USAP, such firm confirms that the Master Servicer or the Special Servicer,
as the case may be, complied with the minimum servicing standards identified in
USAP, in all material respects, except for such significant exceptions or errors
in records that, in the opinion of such firm, the USAP requires it to report. In
rendering such statement, such firm may rely, as to matters relating to direct
servicing of mortgage loans by Sub-Servicers, upon comparable statements for
examinations conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers (rendered within one year of such
statement) of independent public accountants with respect to the related
Sub-Servicer.
SECTION 3.15. Access to Certain Information.
(a) Upon ten days prior written notice, the Master Servicer (with
respect to the items in clauses (a), (b), (d), (g), (h) and (i) below), the
Special Servicer (with respect to the items in clauses (d), (e), (f), (g) and
(i) below) and the Trustee to the extent any such items are in its possession,
shall make available at their respective offices primarily responsible for
administration of the Mortgage Loans (or in the case of Norwest Bank Minnesota,
National Association, at its Corporate Trust Office, except with respect to item
(g), which will be maintained at its offices in New York or Minnesota), during
normal business hours, for review by any Certificateholder or any person
identified by a Holder or its designated agent in writing to the Trustee, the
Master Servicer or the Special Servicer, as the case may be, as a prospective
transferee of such an interest, the Trustee, the Rating Agencies, the
Underwriters and anyone specified thereby and the Depositor originals or copies
of the following items (in each case except to the extent doing so is prohibited
by applicable law or by any documents related to a Mortgage Loan): (a) this
Agreement, each Sub-Servicing Agreement delivered to the Trustee since the
Closing Date and any amendments thereto, (b) all Distribution Date Statements
delivered to holders of the relevant Class of Certificates since the Closing
Date and all reports, statements and analyses delivered by the Master Servicer
or the Special Servicer since the Closing Date pursuant to Section 3.12(c), (c)
all Officers' Certificates delivered by the Master Servicer or the Special
Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants'
reports delivered to the Master Servicer or the Special Servicer since the
Closing Date as described in Section 3.14, (e) the most recent property
inspection report prepared by or on behalf of the Special Servicer or the Master
Servicer in respect of each Mortgaged Property and delivered to the Trustee, (f)
the most recent Mortgaged Property annual operating statements and rent rolls,
if any, collected by or on behalf of the Special Servicer or the Master Servicer
and delivered to the Trustee or the Master Servicer (in the case of the Special
Servicer), (g) any and all modifications, waivers and amendments of the terms of
a Mortgage Loan entered into by the Special Servicer or the Master Servicer, (h)
any and all Officers' Certificates and other evidence delivered by the Master
Servicer to support its determination that any Advance was or, if made, would be
a Nonrecoverable Advance, and (i) any operating statements, budgets, rent rolls
or
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financial statements collected by the Master Servicer or the Special Servicer,
as applicable, with respect to a Mortgage Property, (j) the Prospectus, the
Memorandum and any other disclosure document relating to the Certificates in the
form most recently provided to the Trustee by the Depositor or by any person
designated by the Depositor, (k) any and all notices and reports delivered to
the Trustee with respect to any Mortgaged Property as to which the environmental
testing contemplated by Section 3.09(c) revealed that either of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof was not
satisfied; (l) the most recent Appraisal for each Mortgaged Property and REO
Property that has been delivered to the Trustee (each appraisal obtained
hereunder with respect to any Mortgage Property or REO Property to be delivered
to the Trustee by the Master Servicer of Special Servicer, as applicable,
promptly following its having been obtained); (m) the Schedule of Exceptions to
Mortgage File Delivery prepared by the Trustee pursuant to Section 2.02(a) and
any exception report prepared by the Trustee pursuant to Section 2.02(b); (n)
all notices of a breach of representation and warranty given by or received by
the Trustee with respect to any party hereto and the Mortgage Loan Sellers; and
(o) any Officer's Certificate delivered to the Trustee by the Special Servicer
in connection with a Final Recovery Determination pursuant to Section 3.09(h).
Copies of any and all of the foregoing items will be available from the Master
Servicer or the Special Servicer, as the case may be, upon request at the
expense of the requesting party and shall be provided to any of the Rating
Agencies at no cost pursuant to any of their requests.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, the Trustee,
the Master Servicer or the Special 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 W-1 hereto (or such other form as
may be reasonably acceptable to the Trustee, the Master Servicer or the Special
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 an interest therein, confirmation executed by the requesting Person
substantially in the form of Exhibit W-2 hereto (or such other form as may be
reasonably acceptable to the Trustee, the Master Servicer or the Special
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
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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). 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, the Master
Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15
that has previously been made available via the Trustee's Internet Website or
has previously been filed with the Commission, and the Trustee shall not require
either of the certifications contemplated by the second preceding sentence in
connection with providing any information pursuant to this Section 3.15 that has
previously been made available via the Trustee's Internet Website or has
previously been filed with the Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Rating Agencies, the Controlling Class Representative and the
Depositor, and to the OTS, the FDIC 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.
Except in the case of the Rating Agencies, the Trustee, the Master
Servicer, the Special Servicer and the Underwriters may require payment from any
Person of a sum sufficient to cover the reasonable costs and expenses of
providing any such information or access pursuant to this Section 3.15
including, without limitation, copy charges and reasonable fees for employee
time and for space. Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Trustee to the Trustee's reasonable
satisfaction, the Trustee shall request from the Master Servicer copies of any
inspection reports prepared by the Master Servicer or the Special Servicer,
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer and copies of any Operating
Statement Analyses and NOI Adjustment Worksheets prepared by the Master Servicer
or the Special Servicer; and, upon receipt, the Trustee shall make such items
available to the requesting Certificateholder or Certificate Owner.
(b) The Trustee will make available each month, to any interested
party (i) the Distribution Date Statement via the Trustee's Internet Website,
electronic bulletin board and fax-on-demand service and (ii) as a convenience
for interested parties (and not in furtherance of the distribution of the
Prospectus or the Prospectus Supplement under the securities laws), the
Prospectus, the Prospectus Supplement and this Agreement on the Trustee's
Internet Website. In addition, the Trustee will make
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available each month the Distribution Date Statement and the Unrestricted
Servicer Reports, the CSSA Loan File Report and the CSSA loan setup file on the
Trustee's Internet Website. The Trustee will make available each month, the
Restricted Servicer Reports, and the CSSA Property File Report to any Privileged
Person via the Trustee's Website with the use of a password provided by the
Trustee to such Privileged Person upon receipt by the Trustee from such Person
of a certification in the form of Exhibit G or Exhibit H; provided that the
Rating Agencies, the Depositor, the parties hereto and the Underwriters will not
need to provide such certification to receive a password from the Trustee. In
connection with providing access to the Trustee's internet website electronic
bulletin board or fax-on-demand service the Trustee may require registration and
the acceptance of a disclaimer.
In addition, pursuant to the terms of one or more written agreements
(each an "Internet Disclosure Agreement") that may be entered into after the
date hereof, between the Depositor on the one hand and the Trustee or the Master
Servicer on the other hand, the Trustee or the Master Servicer, as the case may
be, may make available certain information, reports and documents with respect
to the Mortgage Loans and the transactions contemplated hereby, on the Trustee's
or the Master Servicer's Internet website. None of the Depositor, the Master
Servicer or the Trustee is obligated to enter into an Internet Disclosure
Agreement. The Trustee and the Master Servicer will not post or disclose
information, reports, data files or documents with respect to the Mortgage Loans
and the transactions contemplated hereby unless it is expressly permitted to
post such information pursuant to the terms hereof or pursuant to the terms of
an Internet Disclosure Agreement. Provided that each of the Master Servicer, the
Special Servicer and the Trustee prepare and disseminate all information and
reports pursuant to the terms of this Agreement, none of the Master Servicer,
the Special Servicer or the Trustee shall be liable for the dissemination of
such information or reports.
If any Holder that is a member of the Controlling Class or three or
more Holders (hereinafter referred to as "Applicants", with a single Person
which (together with its Affiliates) is the Holder of more than one Class of
Certificates being viewed as a single Applicant for these purposes) apply in
writing to the Trustee, and such application states that the Applicants' desire
to communicate with other Holders with respect to their rights under this
Agreement or under the Certificates and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, send, at the
Applicants' expense, the written communication proffered by the Applicants to
all Certificateholders at their addresses as they appear in the Certificate
Register.
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SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property by the end of the third year following the calendar year
in which REMIC I acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies, more
than sixty days prior to the end of such third succeeding calendar year, and is
granted an extension of time (an "REO Extension") by the Internal Revenue
Service to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, the Special Servicer and the Master Servicer,
to the effect that the holding by REMIC I of such REO Property subsequent to the
end of such third succeeding calendar year will not result in the imposition of
taxes on "prohibited transactions" (as defined in Section 860F of the Code) of
any of REMIC I, REMIC II or REMIC III or cause any of REMIC I, REMIC II or REMIC
III to fail to qualify as a REMIC at any time that any Certificates are
outstanding. If the Special Servicer is granted the REO Extension contemplated
by clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall sell such REO Property within such extended period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its obtaining
the REO Extension contemplated by clause (i) of the second preceding sentence or
its obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, shall be paid by the Master Servicer as a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), held on behalf of the Trustee in trust for
the benefit of the Certificateholders, for the retention of revenues and other
proceeds derived from each REO Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, upon receipt, all REO Revenues, Insurance Proceeds and Liquidation
Proceeds received in respect of an REO Property. Funds in the REO Account may be
invested in Permitted Investments in accordance with Section 3.06 and the
Special Servicers shall be entitled to any interest or investment income earned
on funds deposited in an REO Account to the extent provided in Section 3.06(b).
The Special Servicer shall give written notice to the Trustee and the Master
Servicer of the location of the REO Account when first established and of the
new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any
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REO Property, but only to the extent of amounts on deposit in the REO Account
relating to such REO Property (including any monthly reserve or escrow amounts
necessary to accumulate sufficient funds for taxes, insurance and anticipated
capital expenditures (the "Impound Reserve")). On each Determination Date, the
Special Servicer shall withdraw from the REO Account and deposit into the
Certificate Account or deliver to the Master Servicer or such other Person as
may be directed by the Master Servicer (which shall deposit such amounts into
the Certificate Account) the aggregate of all amounts received in respect of
each REO Property during the most recently ended Collection Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided that in addition to the Impound Reserve the Special Servicer may retain
in the REO Account such portion of proceeds and collections as may be necessary
to maintain a reserve of sufficient funds for the proper operation, management
and maintenance of the related REO Property (including without limitation the
creation of a reasonable reserve for repairs, replacements and other related
expenses), such reserve not to cover a period of more than twelve months.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
The Special Servicer shall provide the Master Servicer any information with
respect to the REO Account as is reasonably requested by the Master Servicer.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to a Mortgaged Property, the
Special Servicer shall review the operation of such Mortgaged Property and
determine the nature of the income that would be derived from such property if
it were acquired by the Trust Fund. If the Special Servicer determines from such
review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure
property" within the meaning of the REMIC Provisions or would be
subject to the tax imposed on "prohibited transactions" under
Section 860F of the Code (either such tax referred to herein as an
"REO Tax"), such Mortgaged Property may be Directly Operated by the
Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO
Property could result in income from such property that would be
subject to an REO Tax, but that a lease of such property to another
party to operate such property, or the performance of some services
by an Independent Contractor with respect to such property, or
another method of operating such property would not result in income
subject to an REO Tax, then the Special Servicer may (provided, that
in the good faith and
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reasonable judgment of the Special Servicer, it is commercially
reasonable) acquire such Mortgaged Property as REO Property and so
lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO
Tax and that no commercially reasonable means exists to operate such
property as REO Property without the Trust Fund incurring or
possibly incurring an REO Tax on income from such property, the
Special Servicer shall deliver to the REMIC Administrator and the
Controlling Class Representative, in writing, a proposed plan (the
"Proposed Plan") to manage such property as REO Property. Such plan
shall include potential sources of income, and to the extent
commercially reasonable, estimates of the amount of income from each
such source. Within a reasonable period of time after receipt of
such plan, the REMIC Administrator shall consult with the Special
Servicer and shall advise the Special Servicer and the Controlling
Class Representative of the REMIC Administrator's federal income tax
reporting position with respect to the various sources of income
that the Trust Fund would derive under the Proposed Plan. In
addition, the REMIC Administrator shall (to the extent reasonably
possible) advise the Special Servicer and the Controlling Class
Representative of the estimated amount of taxes that the Trust Fund
would be required to pay with respect to each such source of income.
After receiving the information described in the two preceding
sentences from the REMIC Administrator, the Special Servicer shall
either (A) implement the Proposed Plan (after acquiring the
respective Mortgaged Property as REO Property) or (B) manage and
operate such property in a manner that would not result in the
imposition of an REO Tax on the income derived from such property.
All of the REMIC Administrator's expenses (including any fees and
expenses of counsel or other experts reasonably retained by it)
incurred pursuant to this section shall be paid by the Master
Servicer as a Servicing Advance.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the Servicing Standard. Both the Special
Servicer and the REMIC Administrator may consult with counsel, and the costs
related to such consultations shall be paid by the Master Servicer as Servicing
Advances.
(b) Subject to Section 3.17(a)(iii), if title to any REO Property is
acquired, the Special Servicer shall manage, conserve, protect and operate such
REO Property for the benefit of the Certificateholders solely for the purpose of
its prompt disposition and sale in a manner that does not and will not cause
such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or, except as contemplated by Section
3.17(a), either result in the receipt by
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REMIC I, REMIC II or REMIC III of any "income from nonpermitted assets" within
the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC
Event. Subject to the foregoing, however, the Special Servicer shall have full
power and authority to do any and all things in connection therewith as are
consistent with the Servicing Standard and, consistent therewith, shall withdraw
from the REO Account, to the extent of amounts on deposit therein with respect
to any REO Property, funds necessary for the proper operation, management,
maintenance and disposition of such REO Property, including without limitation:
(i) all insurance premiums due and payable in respect of
such REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease,
sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in clauses (i) - (iv) above
with respect to such REO Property, the Special Servicer shall make Servicing
Advances in such amounts as are necessary for such purposes unless (as evidenced
by an Officers' Certificate delivered to the Trustee and the Master Servicer)
the Special Servicer determines, in accordance with the Servicing Standard, that
such payment would be a Nonrecoverable Advance; provided, however, that the
Special Servicer may make any such Servicing Advance without regard to
recoverability if it is a necessary fee or expense incurred in connection with
the defense or prosecution of legal proceedings.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at
arm's length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) except as permitted under Section 3.17(a), any such
contract shall require, or shall be administered to require, that
the Independent Contractor, in a timely manner, (A) pay all costs
and expenses incurred in connection with the operation and
management of such REO Property,
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including, without limitation, those listed in Section 3.17(b)
above, and (B) except to the extent that such revenues are derived
from any services rendered by the Independent Contractor to tenants
of the REO Property that are not customarily furnished or rendered
in connection with the rental of real property (within the meaning
of Section 1.856-4(b)(5) of the Treasury Regulations or any
successor provision), remit all related revenues collected (net of
its fees and such costs and expenses) to the Special Servicer upon
receipt;
(iv) none of the provisions of this Section 3.17(c) relating
to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special
Servicer of any of its duties and obligations hereunder with respect
to the operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of
such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Sections
2.03(a), 2.02(b) and 9.01.
(b) Subject to Sections 2.03(a) and 2.02(b), if the Special Servicer
has determined in good faith that any Defaulted Mortgage Loan will become
subject to foreclosure proceedings, the Special Servicer shall promptly notify
the Trustee and the Master Servicer in writing, and the Trustee shall, within 10
days after receipt of such notice, notify the Majority Subordinate
Certificateholder. The Majority Subordinate Certificateholder may at its option
purchase from the Trust Fund, at a price equal to the Purchase Price, any such
Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this
paragraph (b) shall be deposited into the Certificate Account, and the
Custodian, upon receipt of a Request for Release in the form of Exhibit D-1
hereto, and 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
Majority Subordinate
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Certificateholder the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the Majority
Subordinate Certificateholder ownership of such Mortgage Loan. In connection
with any such purchase (i) the Special Servicer shall deliver the related
Servicing File to, and (ii) the Trustee shall assign its rights with respect to
such Mortgage Loan to, the Majority Subordinate Certificateholder.
(c) If the Majority Subordinate Certificateholder has not agreed to
purchase any Defaulted Mortgage Loan within 30 days of its having received
notice in respect thereof pursuant to Section 3.18(b) above, either the Master
Servicer or the Special Servicer (with preference given to the Special Servicer)
may at its option purchase such Mortgage Loan from the Trust Fund, at a price
equal to the Purchase Price. The Purchase Price for any such Mortgage Loan
purchased under this paragraph (c) shall be deposited into the Certificate
Account, and the Custodian, 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 Master Servicer or the Special Servicer, as
applicable, the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the Master Servicer or
the Special Servicer, as applicable, the ownership of such Mortgage Loan. In
connection with any such purchase by the Master Servicer, the Special Servicer
shall deliver the related Servicing File to the Master Servicer.
(d) The Special Servicer may offer to sell any Defaulted Mortgage
Loan not otherwise purchased pursuant to Sections 3.18(b) and 3.18(c) above, if
and when the Special Servicer determines, consistent with the Servicing
Standard, that such a sale would be in the best economic interests of the Trust
Fund. Such offer shall be made in a commercially reasonable manner (which, for
purposes hereof, includes an offer to sell without representation or warranty
other than customary warranties of title and condition, if liability for breach
thereof is limited to recourse against the Trust Fund) for a period of not less
than 10 days. The Majority Subordinate Certificateholder, the Master Servicer
and the Special Servicer may offer to purchase any such Specially Serviced
Mortgage Loan or REO Property. Unless the Special Servicer determines that
acceptance of any bid would not be in the best economic interests of the
Certificateholders (as a collective whole) and subject to any rights that the
Controlling Class Representative may have to object if the winning bid is not at
least equal to the applicable Purchase Price, the Special Servicer shall accept
the highest cash bid received from any Person that constitutes a fair price for
such Mortgage Loan. In the absence of any bid determined as provided below to be
fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage
Loan in accordance with Section 3.09.
Subject to Section 6.11, the Special Servicer shall use its best
efforts to solicit bids for each REO Property in such manner as will be
reasonably likely to realize
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a fair price within the time period provided for by Section 3.16(a). The Special
Servicer shall accept the first (and, if multiple bids are received
contemporaneously or subsequently, the highest, provided that the Special
Servicer is not obligated to the first bidder) cash bid received from any Person
that constitutes a fair price for such REO Property. If the Special Servicer
reasonably believes that it will be unable to realize a fair price for any REO
Property within the time constraints imposed by Section 3.16(a), then subject to
Section 6.11, the Special Servicer shall dispose of such REO Property upon such
terms and conditions as the Special Servicer shall deem necessary and desirable
to maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received.
The Special Servicer shall give the Trustee and the Master Servicer
not less than three Business Days' prior written notice of its intention to sell
any Mortgage Loan or REO Property pursuant to this Section 3.18(d). No
Interested Person shall be obligated to submit a bid to purchase any such
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or any REO
Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer (except as otherwise
provided below in this Section 3.18(e)). In determining whether any bid received
from an Interested Person represents a fair price for any such Mortgage Loan or
REO Property, the Special Servicer shall be supplied with and may rely on a
narrative appraisal prepared (to be paid for by the Master Servicer as a
Servicing Advance) by an Independent Appraiser, retained by the Special
Servicer. The Special Servicer may rely on a certification of any bidder to the
effect that such bidder is not an Interested Person. Such appraiser shall be
selected by (i) the Special Servicer if the Special Servicer is not bidding with
respect to a Defaulted Mortgage Loan or REO Property, (ii) the Master Servicer
if the Special Servicer is bidding and (iii) the Trustee if the Master Servicer
and the Special Servicer are the same Person. The Master Servicer shall not bid
with respect to a Defaulted Mortgage Loan or REO Property if the Special
Servicer has informed it that the Special Servicer intends to submit a bid. In
determining whether any bid from a Person other than an Interested Person or
from an Interested Person other than the Special Servicer constitutes a fair
price for any such Mortgage Loan or REO Property, the Special Servicer shall
take into account (in addition to the results of any appraisal described above
and any appraisal that it may have obtained pursuant to Section 3.09(a)), 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 Mortgage Loan, the occupancy level and physical
condition of the Mortgaged Property or REO Property, the state of the local
economy and the obligation to dispose of any REO Property within the time period
specified in Section 3.16(a). The Purchase
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Price for any such Mortgage Loan or REO Property shall in all cases be deemed a
fair price. Notwithstanding the other provisions of this Section 3.18 (but
excluding a purchase pursuant to Section 3.18(c)), no cash bid from the Master
Servicer, Special Servicer or any of their Affiliates shall constitute a fair
price for any Defaulted Mortgage Loan or REO Property unless such bid is the
highest bid received and at least two independent bids (not including the bid of
the Master Servicer, Special Servicer or any Affiliate) have been received. In
the event the bid of the Special Servicer or any Affiliate (other than the
Controlling Class) is the only bid received or is the higher of only two bids
received, then additional bids shall be solicited. If an additional bid or bids
are received and the original bid of the Special Servicer or any Affiliate is
the highest of all bids received, then the bid of the Special Servicer or such
Affiliate shall be deemed to constitute a fair price.
(f) Subject to Sections 3.18(a) through 3.18(e) above and Section
6.11, the Special Servicer shall act on behalf of the Trustee for the benefit 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, and the collection of all amounts payable in connection therewith. In
connection therewith (other than in connection with a purchase by the Majority
Subordinate Certificateholder), the Special Servicer may charge prospective
bidders, and may retain, fees that approximate the Special Servicer's actual
costs in the preparation and delivery of information pertaining to such sales or
evaluating bids without obligation to deposit such amounts into the Certificate
Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be
final, without recourse to the Trustee or the Trust Fund and without
representations and warranties of title and condition, unless liability for
breach thereof is limited to recourse against the Trust Fund, and if such sale
is consummated in accordance with the terms of this Agreement, neither the
Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(h) Notwithstanding any other provision herein, the Special Servicer
shall not be obligated by any of the foregoing paragraphs of this Section 3.18
to accept the highest bid if the Special Servicer determines, in accordance with
the Servicing Standard, that rejection of such bid would be in the best
interests of the Certificateholders (as a collective whole). In addition,
subject to any rights that the Controlling Class Representative may have to
object if the winning bid is not at least equal to the applicable Purchase
Price, the Special Servicer may accept a lower bid (from any person or entity
other than itself or an Affiliate), if it determines, in accordance with the
Servicing Standard, that acceptance of such bid would be in the
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best interests of the Certificateholders (as a collective whole) (for example,
if the prospective buyer making the lower bid is more likely to perform its
obligations or the terms (other than the price) offered by the prospective buyer
making the lower bid are more favorable).
(i) Neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or REO Property.
SECTION 3.19. Additional Obligations of Master Servicer.
(a) The Master Servicer shall deliver to the Paying Agent for
deposit in the Distribution Account on each P&I Advance Date, without any right
of reimbursement therefor, an amount equal to the lesser of (i) the excess, if
any, of (A) aggregate amount of Prepayment Interest Shortfalls incurred in
connection with Principal Prepayments received during the most recently ended
Collection Period over (B) the aggregate amount of Prepayment Interest Excesses
collected in connection with Principal Prepayments received during such
Collection Period, and (ii) the total amount of Master Servicing Fee received by
the Master Servicer during such Collection Period (with respect to all Mortgage
Loans other than Specially Serviced Mortgage Loans and only up to 0.01% per
annum per Mortgage Loan on an aggregate basis).
(b) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, unless
the related ground lessor has previously received notice, promptly (and in any
event within 45 days of the Closing Date) notify the related ground lessor of
the transfer of such Mortgage Loan to the Trust Fund pursuant to this Agreement
and inform such ground lessor that any notices of default under the related
Ground Lease should thereafter be forwarded to the Master Servicer.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(k) below and Section
6.11, the Master Servicer or the Special Servicer (with respect to Specially
Serviced Mortgage Loans), as applicable, may, on behalf of the Trustee for the
benefit of the Trust Fund, agree to any modification, waiver or amendment of any
term of any Mortgage Loan or Specially Serviced Mortgage Loan, as applicable,
without the consent of the Trustee or any Certificateholder if it determines, in
accordance with the Servicing Standard, that it is appropriate to do so.
(b) All modifications, waivers or amendments of any Mortgage Loan
shall be in writing and shall be considered and effected in accordance with the
Servicing Standard.
(c) Except as provided in 3.20(d) and the last sentence of Section
3.02(a), the Master Servicer or the Special Servicer, on behalf of the Trustee,
shall not
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agree or consent to any modification, waiver or amendment of any term of any
Mortgage Loan that would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount (including Prepayment Premiums,
but excluding default interest and amounts payable as additional
servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or permit a Principal Prepayment during any
period in which the related Mortgage Note prohibits Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage
or pursuant to Section 3.09(e), result in a release of the lien of
the Mortgage on any material portion of the related Mortgaged
Property without a corresponding Principal Prepayment in an amount
not less than the fair market value (as determined by an appraisal
by an Independent Appraiser delivered to the Special Servicer at the
expense of the related Mortgagor and upon which the Special Servicer
may conclusively rely) of the property to be released;
(iv) in the reasonable, good faith judgment of the Master
Servicer or the Special Servicer, as applicable, otherwise
materially impair the security for such Mortgage Loan or reduce the
likelihood of timely payment of amounts due thereon.
(d) Notwithstanding Section 3.20(c), but subject to the third
paragraph of this Section 3.20(d) and the rights of the Controlling Class
Representative set forth in Section 6.11, the Special Servicer may (i) reduce
the amounts owing under any Specially Serviced Mortgage Loan by forgiving
principal, accrued interest or any Prepayment Premium, (ii) reduce the amount of
the monthly payment on any Specially Serviced Mortgage Loan, including by way of
a reduction in the related Mortgage Rate, (iii) forbear in the enforcement of
any right granted under any Mortgage Note or Mortgage relating to a Specially
Serviced Mortgage Loan and/or (iv) accept a principal prepayment on any
Specially Serviced Mortgage Loan during any Lockout Period; provided that (A)
the related Mortgagor is in default with respect to the Specially Serviced
Mortgage Loan or, in the judgment of the Special Servicer, such default is
reasonably foreseeable, (B) in the reasonable, good faith judgment of the
Special Servicer, such modification, waiver or amendment would increase the
recovery on the Mortgage Loan to Certificateholders on a net present value basis
documented to the Trustee (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Net Mortgage
Rate) and (C) such modification, waiver or amendment would not both (1) effect
an exchange or reissuance
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of the Mortgage Loan under Section 1001 of the Code (and the Treasury
regulations promulgated thereunder) and (2) cause REMIC I, REMIC II or REMIC III
to fail to qualify as a REMIC under the Code or result in the imposition of any
tax on "prohibited transactions" or "contributions" after the Startup Day under
the REMIC Provisions.
In addition, notwithstanding Section 3.20(c), but subject to the
third paragraph of this Section 3.20(d) and Section 6.11, the Special Servicer
may extend the date on which any Balloon Payment is scheduled to be due in
respect of a Specially Serviced Mortgage Loan if the conditions set forth in the
proviso to the prior paragraph are satisfied and the Special Servicer has
obtained an appraisal in accordance with the Standards of the Appraisal
Institute of the related Mortgaged Property, performed by an Independent
Appraiser, in connection with such extension, which appraisal supports the
determination of the Special Servicer contemplated by clause (B) of the proviso
to the immediately preceding paragraph.
In no event will the Special Servicer (i) extend the maturity date
of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date or (ii) if the Mortgage Loan is secured by a Ground Lease,
extend the maturity date of such Mortgage Loan beyond a date which is less than
10 years prior to the expiration of the term of such Ground Lease.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(d) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee, the
Controlling Class Representative, the Master Servicer and the Rating Agencies
and describing in reasonable detail the basis for the Special Servicer's
determination. The Special Servicer shall append to such Officer's Certificate
any information including but not limited to income and expense statements, rent
rolls, property inspection reports and appraisals that support such
determination.
(e) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such modification, waiver or
amendment so permit. The foregoing shall in no way limit the Special Servicer's
ability to charge and collect from the Mortgagor costs otherwise collectible
under the terms of the related Mortgage Note and this Agreement together with
interest thereon.
(f) The Special Servicer and the Master Servicer, as applicable,
may, as a condition to granting any request by a Mortgagor for consent,
modification, waiver or indulgence or any other matter or thing, the granting of
which is within its discretion pursuant to the terms of the instruments
evidencing or securing the related Mortgage Loan and is permitted by the terms
of this Agreement, require that such Mortgagor pay
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to it (i) as additional servicing compensation, a reasonable or customary fee
for the additional services performed in connection with such request, and (ii)
any related costs and expenses incurred by it. In no event shall the Special
Servicer or the Master Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(g) The Master Servicer and the Special Servicer, as applicable,
shall notify any related Sub-Servicers, the Rating Agencies, the Trustee, the
Controlling Class Representative and, in the case of the Special Servicer, the
Master Servicer, in writing, of any modification, waiver or amendment of any
term of any Mortgage Loan (including fees charged the Mortgagor) and the date
thereof, and shall deliver to the Custodian (with a copy to the Master Servicer)
for deposit in the related Mortgage File, an original counterpart of the
agreement relating to such modification, waiver or amendment, promptly (and in
any event within ten Business Days) following the execution thereof. Copies of
each agreement whereby any such modification, waiver or amendment of any term of
any Mortgage Loan is effected shall be sent to the Controlling Class
Representative and otherwise be made available for review upon prior request
during normal business hours at the offices of the Trustee.
(h) If, with respect to any Defeasance Loan, the Master Servicer
shall receive a notice from the related Mortgagor that it intends to defease the
related Defeasance Loan in accordance with the terms thereof, except as set
forth below, the Master Servicer shall (a) promptly respond to such notice in a
manner which would require that the Mortgagor pledge Defeasance Collateral in
lieu of such prepayment pursuant to the terms of the related Mortgage Note, (b)
notify each Rating Agency, the Trustee, the Controlling Class Representative and
the Underwriters in writing of the request to defease a Mortgage Loan and (c)
upon the written confirmation from each Rating Agency described in the next
paragraph, take such further action as provided in such Mortgage Note to
effectuate such pledge, including the purchase and perfection of the Defeasance
Collateral in the name of the Trustee, as trustee for the registered holders of
Commercial Mortgage Acceptance Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-C2.
Notwithstanding the above, the Master Servicer shall not permit a
pledge of Defeasance Collateral in lieu of prepayment under a Defeasance Loan if
(i) such defeasance would occur within two years of the Startup Day, (ii) such
Defeasance Loan (or any applicable agreement executed in connection with the
related defeasance) provides that the Mortgagor will be liable for any
shortfalls from the Defeasance Collateral or otherwise become subjected to
recourse liability with respect to the Defeasance Loan, (iii) such defeasance
would result in a new Mortgagor (other than a new entity that will hold the
Defeasance Collateral) on the Defeasance Loan (unless such new Mortgagor is
acquiring the Mortgaged Property that was the initial security for the
Defeasance Loan), (iv) any Rating Agency does not confirm in writing to the
Master Servicer that the acceptance of a pledge of the Defeasance Collateral in
lieu of a
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full prepayment will not result in a downgrade, withdrawal or qualification of
the ratings then assigned by it to any Class of Certificates, or (v) to the
extent permitted in the related Mortgage Loan documents, the related Mortgagor
does not pay all costs incurred in connection with such defeasance.
(i) [RESERVED]
(j) The Special Servicer shall not consent to the modification,
waiver or amendment of a Lease Enhancement Policy without receiving prior
written confirmation from each Rating Agency that such modification, waiver or
amendment will not result in a qualification, downgrade or withdrawal of the
ratings on the Certificates or the prior written consent of each Rating Agency.
The Master Servicer shall not consent to any modification, waiver or amendment
of any Lease Enhancement Policy.
(k) With respect to a Mortgage Loan secured by a Mortgaged Property
which is a hospitality property and to the extent the related loan documents
permit, neither the Master Servicer nor the Special Servicer shall consent to
any change in the franchise affiliation of such Mortgaged Property without
receiving the prior written confirmation from the Rating Agencies that such
action would not result in a downgrading, qualification or withdrawal of the
ratings then assigned to the Certificates; provided, that with respect to DCR,
such prior written confirmation shall be required only for Mortgage Loans with a
Stated Principal Balances at the time of determination equal to or in excess of
2% of the aggregate Stated Principal Balance of all Mortgage Loans and in all
events, the Master Servicer or the Special Servicer, as applicable shall provide
a written recommendation as to whether such confirmation is appropriate.
(l) With respect to any Mortgage Loan that, at the time of
determination, has a Stated Principal Balance either (i) in excess of 5% of the
aggregate Stated Principal Balance of all Mortgage Loans or (ii) in excess of
$20 million, neither the Master Servicer nor the Special Servicer, as
applicable, shall approve a change of the property manager without receiving the
prior written confirmation from the Rating Agencies that such action would not
result in a downgrading, qualification or withdrawal of the ratings then
assigned to the Certificates.
SECTION 3.21. Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan and if the Master Servicer is not also the
Special Servicer, the Master Servicer shall immediately give notice thereof, and
shall deliver a copy of the related Servicing File, to the Special Servicer and
shall use reasonable efforts to provide the Special Servicer with all
information, documents (or copies thereof) and
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records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to the Mortgage Loan either in the Master
Servicer's or any of its directors', officers', employees', affiliates' or
agents' possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. The Master Servicer shall use reasonable
efforts to comply with the preceding sentence within five Business Days of the
occurrence of each related Servicing Transfer Event; provided, however, if the
information, documents and records requested by the Special Servicer are not
contained in the Servicing File, the Master Servicer shall have such period of
time as reasonably necessary to make such delivery.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File and all other information, documents and
records that were not part of the Servicing File when it was delivered to the
Special Servicer within five Business Days of the occurrence, to the Master
Servicer (or such other Person as may be directed by the Master Servicer) and
upon giving such notice, and returning such Servicing File, to the Master
Servicer (or such other Person as may be directed by the Master Servicer), the
Special Servicer's obligation to service such Mortgage Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan, shall terminate, and the obligations of the Master Servicer to
service and administer such Mortgage Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of documents included within
the definition of "Mortgage File" for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Mortgagor.
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Master Servicer and each Rating Agency (or such other Person as
may be directed by the Master Servicer) a statement in writing and in computer
readable format (the form of such statement to be agreed upon by the Master
Servicer and the Special Servicer) describing, on a loan-by-loan and
property-by-property basis, (1) insofar as it relates to Specially Serviced
Mortgage Loans and REO Properties, the information described in clauses (x)
through (xiv) of Section 4.02(a) and, insofar as it relates to the Special
Servicer, the information described in clauses (xxv) and (xxvi) of Section
4.02(a), (2) the amount of all payments, Insurance Proceeds and Liquidation
Proceeds received, and the amount of any Realized Loss incurred, with respect to
each Specially Serviced Mortgage Loan during the related Collection Period, and
the amount of all REO Revenues, Insurance Proceeds and Liquidation Proceeds
received, and the amount of any Realized Loss incurred, with respect to each REO
Property during the
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related Collection Period and (3) such additional information relating to the
Specially Serviced Mortgage Loans and REO Properties as the Master Servicer
reasonably requests to enable it to perform its responsibilities under this
Agreement. Notwithstanding the foregoing provisions of this subsection (c), the
Master Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and REO Properties and shall provide the
Special Servicer with any information reasonably available to the Master
Servicer required by the Special Servicer to perform its duties under this
Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects and requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Master
Servicer or the Special Servicer, as the case may be, shall for any reason no
longer act in such capacity hereunder (including, without limitation, by reason
of an Event of Default), the Trustee or its designee may thereupon assume all of
the rights and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer or the Special Servicer, as the case may be,
under such agreement or may terminate such subservicing agreement without cause
and without payment of any penalty or termination fee (unless the Sub-Servicer
under such Sub-Servicing Agreement was a Sub-Servicer as of the Closing Date);
(iii) provides that the Trustee, for the benefit of the Certificateholders,
shall be a third party beneficiary under such agreement, and that the Trustee or
its designee shall assume the obligations of the Master Servicer or the Special
Servicer, as the case may be, thereunder, unless the Trustee may terminate the
Sub-Servicing Agreement as contemplated by the immediately preceding clause
(ii); (iv) permits any purchaser of a Mortgage Loan pursuant to this Agreement
to terminate such agreement with respect to such purchased Mortgage Loan at its
option and without penalty; (v) does not permit the Sub-Servicer to enter into
or consent to any modification, waiver or amendment or otherwise take any action
on behalf of the Special Servicer contemplated by Section 3.20 hereof without
the consent of such Special Servicer; and (vi) does not permit the Sub-Servicer
any rights of indemnification that may be satisfied out of assets of the Trust
Fund other than those specifically set forth in the related Mortgage Loan
documents. In addition, each Sub-Servicing Agreement entered into by the Master
Servicer shall provide that such agreement shall be subject to Section 3.21
hereof with respect to any Mortgage Loan that becomes a Specially Serviced
Mortgage Loan. The Master Servicer and the Special Servicer each shall deliver
to the Trustee and to each other copies of all Sub-Servicing Agreements, and any
amendments thereto and modifications thereof, entered into by it promptly upon
its execution and delivery of such documents. References in this Agreement to
actions taken or to be taken by the Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of
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the Master Servicer or the Special Servicer, as the case may be; and, in
connection therewith, all amounts advanced by any Sub-Servicer to satisfy the
obligations of the Master Servicer hereunder to make P&I Advances or Servicing
Advances shall be deemed to have been advanced by the Master Servicer out of its
own funds and, accordingly, such P&I Advances or Servicing Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer. For so long as they are
outstanding, Advances shall accrue interest in accordance with Sections 3.03(d)
and 4.03(d), such interest to be allocable between the Master Servicer and such
Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other, the Trustee and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust Fund) monitor the performance and enforce the
obligations of their respective Sub-Servicers under the related Sub-Servicing
Agreements. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as applicable, in its good faith business
judgment, would require were it the owner of the Mortgage Loans. Subject to the
terms of the related Sub-Servicing Agreement, the Master Servicer and the
Special Servicer may each have the right to remove a Sub-Servicer at any time it
considers such removal to be in the best interests of Certificateholders.
(d) In the event of the resignation, removal or other termination of
Midland Loan Services, Inc. or any successor Master Servicer hereunder for any
reason, the Trustee or other Person succeeding such resigning, removed or
terminated party as Master Servicer, shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination: (i) to assume
the rights and obligations of the Master Servicer under such Sub-Servicing
Agreement and continue the sub-servicing arrangements thereunder on the same
terms (including without limitation the obligation to pay the same sub-servicing
fee); (ii) to enter into a new Sub-Servicing Agreement with such Sub-Servicer on
such terms as the Trustee or other successor Master Servicer and such
Sub-Servicer shall mutually agree (it being understood that such Sub-Servicer is
under no obligation to accept any such new Sub-Servicing Agreement or to enter
into or continue negotiations with the Trustee or other successor Master
Servicer), (iii) subject
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to the terms of the next paragraph, to terminate such Sub-Servicing Agreement
without cause and without the requirement to pay any fee related to such
termination, provided that no Person that was a Sub-Servicer as of September 1,
1998, may be terminated without cause, or (iv) to terminate the Sub-Servicing
Agreement if an Event of Default (as defined in such Sub-Servicing Agreement)
has occurred and is continuing or either of the events set forth in clauses (i)
or (ii) of the following paragraph has occurred and is continuing, in each case
without penalty.
Each Sub-Servicing Agreement in effect as of September 1, 1998,
provides, among other things, that the Master Servicer may at its sole option,
terminate any rights the Sub-Servicer may have thereunder with respect to any or
all Mortgage Loans without cause or penalty if any of the Rating Agencies (i)
reduces the rating assigned to one or more Classes of the respective
Certificates as a result of the sub-servicing of the Mortgage Loans by the
Sub-Servicer, or (ii) advise the Master Servicer or the Trustee that it will
cause a qualification, downgrade or withdrawal of such rating due to the
continued servicing by the Sub-Servicer.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible.
SECTION 3.23. Representations, Warranties and Covenants of
Master Servicer and Special Servicer.
(a) The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that:
(i) The Master Servicer is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and the Master Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement and the
Meidinger Tower Agreement.
(ii) The execution and delivery of this Agreement and the
Meidinger Tower Agreement by the Master Servicer, and the
performance and compliance with the terms of this Agreement and the
Meidinger Tower Agreement by the Master Servicer, will not violate
the Master Servicer's certificate of incorporation or by-laws or
constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a
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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 the default or breach of which, in the
Master Servicer's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the
Meidinger Tower Agreement or the financial condition of the Master
Servicer.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions of the Master Servicer
contemplated by this Agreement and the Meidinger Tower Agreement,
has duly authorized the execution, delivery and performance of this
Agreement and the Meidinger Tower Agreement, and has duly executed
and delivered this Agreement and the Meidinger Tower Agreement.
(iv) This Agreement and the Meidinger Tower Agreement,
assuming due authorization, execution and delivery by each of the
other parties hereto, constitutes a valid, legal and binding
obligation of the Master Servicer, enforceable against the Master
Servicer in accordance with the terms hereof, subject to (A)
applicable receivership, 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 Master Servicer is not in violation of, and its
execution and delivery of this Agreement and the Meidinger Tower
Agreement and its performance and compliance with the terms of this
Agreement and the Meidinger Tower Agreement does 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 Master
Servicer's good faith and reasonable judgment could materially and
adversely affect either the ability of the Master Servicer to
perform its obligations under this Agreement or the Meidinger Tower
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer that
would prohibit the Master Servicer from entering into this Agreement
or the Meidinger Tower Agreement or, in the Master Servicer's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Master Servicer to perform its
obligations under this Agreement or the Meidinger Tower Agreement or
the financial condition of the Master Servicer.
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(vii) Each officer, and employee, of the Master Servicer with
responsibilities concerning the servicing and administration of
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage as, and to the extent, required by
Section 3.07(c).
(viii) The consolidated net worth of the Master Servicer and
of its direct or indirect parent, determined in accordance with
generally accepted accounting principles, is not less than
$15,000,000.
(ix) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Master Servicer of or compliance by
the Master Servicer with this Agreement or the Meidinger Tower
Agreement or the consummation of the transactions of the Master
Servicer contemplated by this Agreement or the Meidinger Tower
Agreement has been obtained and is effective.
(x) The Master Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement and the Meidinger
Tower Agreement.
(b) The Special Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Master Servicer, as of the
Closing Date, that:
(i) The Special Servicer is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and the Special Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement and the
Meidinger Tower Agreement.
(ii) The execution and delivery of this Agreement and the
Meidinger Tower Agreement by the Special Servicer, and the
performance and compliance with the terms of this Agreement and the
Meidinger Tower Agreement by the Special Servicer, will not violate
the Special Servicer's certificate of incorporation or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in a breach of, any
material agreement or other material instrument to which it is a
party or by which it is bound, the default or breach of which, in
the Special Servicer's good faith and reasonable judgment, is
reasonably likely to affect materially and adversely either the
ability of the Special Servicer to perform its obligations under
this
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Agreement or the Meidinger Tower Agreement or the financial
condition of the Special Servicer.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions of the Special Servicer
contemplated by this Agreement and the Meidinger Tower Agreement,
has duly authorized the execution, delivery and performance of this
Agreement and the Meidinger Tower Agreement, and has duly executed
and delivered this Agreement and the Meidinger Tower Agreement.
(iv) This Agreement and the Meidinger Tower Agreement,
assuming due authorization, execution and delivery by each of the
other parties hereto, constitutes a valid, legal and binding
obligation of the Special Servicer, enforceable against the Special
Servicer 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 Special Servicer is not in violation of, and its
execution and delivery of this Agreement and the Meidinger Tower
Agreement and its performance and compliance with the terms of this
Agreement and the Meidinger Tower Agreement does 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
Special Servicer's good faith and reasonable judgment, could
materially and adversely affect either the ability of the Special
Servicer to perform its obligations under this Agreement or the
Meidinger Tower Agreement or the financial condition of the Special
Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer that
would prohibit the Special Servicer from entering into this
Agreement or the Meidinger Tower Agreement or, in the Special
Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Special
Servicer to perform its obligations under this Agreement or the
Meidinger Tower Agreement or the financial condition of the Special
Servicer.
(vii) Each officer, and employee of the Special Servicer with
responsibilities concerning the servicing and administration of
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c).
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(viii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Special Servicer of or compliance by
the Special Servicer with this Agreement or the Meidinger Tower
Agreement or the consummation of the transactions of the Special
Servicer contemplated by this Agreement and the Meidinger Tower
Agreement has been obtained and is effective.
(ix) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement and the Meidinger
Tower Agreement.
(c) The representations and warranties of the Master Servicer and
the Special Servicer, set forth in Sections 3.23(a) and (b), respectively, shall
survive the execution and delivery of this Agreement and the Meidinger Tower
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto 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.
(d) Any successor Master Servicer or Special Servicer shall be
deemed to have made, as of the date of its succession, each of the
representations and warranties set forth in Section 3.23(a) or (b), subject to
such appropriate modifications to the representation and warranty set forth in
Section 3.23(a)(i) or 3.23(b)(i) to accurately reflect such successor's
jurisdiction of organization and whether it is a corporation, partnership, bank,
association or other type of organization.
(e) The Master Servicer covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by the Master
Servicer and used by the Master Servicer in the course of the operation or
management of, or the compiling, reporting or generation of data required by
this Agreement will not contain any deficiency (x) in the ability of such
software or hardware to identify correctly or perform calculations or other
processing with respect to dates after August 31, 1999 or (y) that would cause
such software or hardware to be fit no longer for the purpose for which it was
intended by reason of the changing of the date from 1999 to 2000. The foregoing
matters extend and relate only to the internal functioning of the software and
hardware maintained by the Master Servicer, and the Master Servicer shall not be
responsible for the accuracy or integrity of any data or calculations provided
to the Master Servicer by any third party. A breach of the covenant set forth in
this Section 3.23(e) shall constitute an Event of Default pursuant to Section
7.01(x) and such Event of Default shall be subject to the remedies set forth in
Article VII.
(f) The Special Servicer covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by the
Special Servicer
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and used by the Special Servicer in the course of the operation or management
of, or the compiling, reporting or generation of data required by this Agreement
will not contain any deficiency (x) in the ability of such software or hardware
to identify correctly or perform calculations or other processing with respect
to dates after August 31, 1999 or (y) that would cause such software or hardware
to be fit no longer for the purpose for which it was intended by reason of the
changing of the date from 1999 to 2000. The foregoing matters extend and relate
only to the internal functioning of the software and hardware maintained by the
Special Servicer, and the Special Servicer shall not be responsible for the
accuracy or integrity of any data or calculations provided to the Special
Servicer by any third party. A breach of the covenant set forth in this Section
3.23(f) shall constitute an Event of Default pursuant to Section 7.01(xi) and
such Event of Default shall be the sole remedy against the Special Servicer for
the breach of this covenant.
SECTION 3.24. Sub-Servicing Agreement Representation and
Warranty.
(a) The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that each Sub-Servicing Agreement satisfies the requirements for
such Sub-Servicing Agreements set forth in Sections 3.22(a) and the second
paragraph of 3.22(d) in all material respects.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Paying Agent shall (except as
otherwise provided in Section 9.01), based solely on information provided by the
Master Servicer and the Special Servicer, apply amounts on deposit in the
Distribution Account, after payment of amounts payable from the Distribution
Account in accordance with Section 3.05(b)(ii) through (viii), in each case to
the extent of the remaining portion of the Available Distribution Amount, in the
following order of priority:
(i) to distributions of interest to the Holders of the Senior
Certificates in an amount equal to, and pro rata in accordance with,
all Distributable Certificate Interest in respect of each Class of
Senior Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the Class
A-1 Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-1 Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date;
(iii) after the Class Principal Balance of the Class A-1
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class A-2 Certificates, in an amount (not to
exceed the Class Principal Balance of the Class A-2 Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of the Class A-1 Certificates pursuant to clause (ii)
above);
(iv) after the Class Principal Balance of each of the Class
A-1 and Class A-2 Certificates has been reduced to zero, to
distributions of principal to the holders of the Class A-3
Certificates in an amount (not to exceed the Class Principal Balance
of such Class of Certificates outstanding immediately prior to such
Distribution Date) equal to the Principal Distribution Amount for
such Distribution Date, less any portion thereof distributed in
respect of the Class A-1 and/or Class A-2 Certificates;
(v) to distributions to the Holders of the Class A-1, Class
A-2 and Class A-3 Certificates, pro rata, in accordance with the
outstanding
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Class Principal Balances of each such Classes of Certificates in an
amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such
Classes of Certificates and not previously reimbursed, plus interest
on any such Realized Losses or Additional Trust Fund Expenses,
accrued at the applicable Pass-Through Rate from the date such
Realized Losses and/or Additional Trust Fund Expenses were allocated
to such Class;
(vi) to distributions of interest to the Holders of the Class
B Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(vii) after the Class Principal Balance of each of the Class
A-1, Class A-2 and Class A-3 Certificates has been reduced to zero,
to distributions of principal to the Holders of the Class B
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class B Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other
Class of Certificates pursuant to any prior clause of this Section
4.01(a));
(viii) to distributions to the Holders of the Class B
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class B Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(ix) to distributions of interest to the Holders of the Class
C Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date, and, to the extent not previously paid, for all
prior Distribution Dates;
(x) after the Class Principal Balance of each of the Class
A-1, Class A-2, Class A-3 and Class B Certificates has been reduced
to zero, to distributions of principal to the Holders of the Class C
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class C Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to
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the Holders of any other Class of Certificates pursuant to any
prior clause of this Section 4.01(a));
(xi) to distributions to the Holders of the Class C
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class C Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xii) to distributions of interest to the Holders of the Class
D Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class D Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xiii) after the Class Principal Balance of each of the Class
A-1, Class A-2, Class A-3, Class B and Class C Certificates has been
reduced to zero, to distributions of principal to the Holders of the
Class D Certificates, in an amount (not to exceed the Class
Principal Balance of the Class D Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders
of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a));
(xiv) to distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class D Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xv) to distributions of interest to the Holders of the Class
E Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class E Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xvi) after the Class Principal Balance of each of the Class
A-1, Class A-2, Class A-3, Class B, Class C and Class D Certificates
has been reduced to zero, to distributions of principal to the
Holders of the Class E Certificates, in an amount (not to exceed the
Class Principal Balance of the Class E Certificates outstanding
immediately prior to such Distribution
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Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xvii) to distributions to the Holders of the Class E
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class E Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xviii) to distributions of interest to the Holders of the
Class F Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class F Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xix) after the Class Principal Balance of each of the Class
A-1, Class A-2, Class A-3, Class B, Class C, Class D and Class E
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class F Certificates, in an amount (not to
exceed the Class Principal Balance of the Class F Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xx) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class F Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xxi) to distributions of interest to the Holders of the Class
G Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class G Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxii) after the Class Principal Balance of each of the Class
A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E and
Class F Certificates has been reduced to zero, to distributions of
principal to the
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Holders of the Class G Certificates, in an amount (not to exceed the
Class Principal Balance of the Class G Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders
of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a));
(xxiii) to distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class G Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xxiv) to distributions of interest to the Holders of Class H
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class H Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxv) after the Class Principal Balance of each of the Class
A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class
F and Class G Certificates has been reduced to zero, to
distributions of principal to the Holders of the Class H
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class H Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other
Class of Certificates pursuant to any prior clause of this Section
4.01(a));
(xxvi) to distributions to the Holders of the Class H
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class H Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xxvii) to distributions of interest to the Holders of Class J
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class J Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
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(xxviii) after the Class Principal Balance of each of the
Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates has been reduced to zero,
to distributions of principal to the Holders of the Class J
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class J Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other
Class of Certificates pursuant to any prior clause of this Section
4.01(a));
(xxix) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class J Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xxx) to distributions of interest to the Holders of Class K
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class K Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxi) after the Class Principal Balance of each of the Class
A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class
F, Class G, Class H and Class J Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class K
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class K Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other
Class of Certificates pursuant to any prior clauses of this Section
4.01(a));
(xxxii) to distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class K Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xxxiii) to distributions of interest to the Holders of Class
L Certificates, in an amount equal to all Distributable Certificate
Interest in
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respect of the Class L Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxiv) after the Class Principal Balance of each of the Class
A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J and Class K Certificates has been
reduced to zero, to distributions of principal to the Holders of the
Class L Certificates, in an amount (not to exceed the Class
Principal Balance of the Class L Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders
of any other Class of Certificates pursuant to any prior clauses of
this Section 4.01(a));
(xxxv) to distributions to the Holders of the Class L
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class L Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xxxvi) to distributions of interest to the Holders of Class M
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class M Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxvii) after the Class Principal Balance of each of the
Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K and Class L Certificates
has been reduced to zero, to distributions of principal to the
Holders of the Class M Certificates, in an amount (not to exceed the
Class Principal Balance of the Class M Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders
of any other Class of Certificates pursuant to any prior clauses of
this Section 4.01(a));
(xxxviii) to distributions to the Holders of the Class M
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class M Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the
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applicable Pass-Through Rate from the date such Realized Losses
and/or Additional Trust Fund Expenses were allocated to such Class;
and
(xxxix) to distributions to the Holders of the Class R-I
Certificates, in an amount equal to the balance, if any, of the
Available Distribution Amount for such Distribution Date remaining
after the distributions to be made on such Distribution Date
pursuant to clauses (i) through (xxxviii) above.
After the Certificate Balance of the Subordinate Certificates has
been reduced to zero, distributions of principal will be made in
respect of the Class A-1, Class A-2 and Class A-3 Certificates, pro
rata.
(b) On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account any amount on deposit therein that represents
Prepayment Premiums actually collected on the Mortgage Loans and any REO Loans
during the related Collection Period and shall distribute such amount in respect
of the Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E,
Class F, Class G and Class X Certificates, as additional interest, as follows:
Until the aggregate Certificate Principal Balance of the Sequential Pay
Certificates has been reduced to zero, to the Holders of the Class A-1, Class
A-2, Class A-3, Class B, Class C, Class D, Class E, Class F and Class G
Certificates then entitled to distributions of principal with respect to such
Mortgage Loan on such Distribution Date, in the case of each Class thereof, in
an amount equal to the amount of each such Prepayment Premium, multiplied by (a)
a fraction (which in no event may be greater than one) the numerator of which is
equal to the excess, if any, of the Pass-Through Rate of such Class of
Sequential Pay Certificates over the relevant Discount Rate (as defined below),
and the denominator of which is equal to the excess, if any, of the Mortgage
Rate of the prepaid Mortgage Loan over the relevant Discount Rate, and (b) a
fraction, the numerator of which is equal to the amount of principal
distributable on such Class of Sequential Pay Certificates on such Distribution
Date, and the denominator of which is the Principal Distribution Amount for such
Distribution Date. The portion, if any, of the Prepayment Premium remaining
after any such payments to the Holders of the Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F and Class G Certificates will be
distributed to the Holders of the Class X Certificates. The "Discount Rate"
applicable to any Class of Sequential Pay Certificates will be equal to the
yield (when compounded monthly) on the U.S. Treasury issue (primary issue) with
a maturity date closest to the maturity date for the prepaid Mortgage Loan. In
the event that there are two such U.S. Treasury issues (a) with the same coupon,
the issue with the lower yield will be utilized, and (b) with maturity dates
equally close to the maturity date for the prepaid Mortgage Loan, the issue with
the earliest maturity date will be utilized.
(c) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such
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Class based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions with respect to each Class on each
Distribution Date shall be made 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 Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates) or otherwise by check mailed to
the address of such Certificateholder as it appears in the Certificate Register.
The final distribution on each Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Certificate) will be made in like manner,
but only upon presentation and surrender of such Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Prior to any termination of the
Trust Fund pursuant to Section 9.01, any distribution that is to be made with
respect to a Certificate in reimbursement of a Realized Loss or Additional Trust
Fund Expense previously allocated thereto, which reimbursement is to occur after
the date on which such Certificate is surrendered as contemplated by the
preceding sentence, will be made by check mailed to the address of the
Certificateholder that surrendered such Certificate as such address last
appeared in the Certificate Register or to any other address of which the Paying
Agent was subsequently notified in writing. If such check is returned to the
Paying Agent, the Paying Agent, directly or through an agent, shall take such
reasonable steps to contact the related Holder and deliver such check as it
shall deem appropriate. Any funds in respect of a check returned to the Paying
Agent shall be set aside by the Paying Agent and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Paying Agent has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Paying Agent shall, to the extent it is not
required to dispose of such unclaimed funds otherwise in accordance with
applicable state escheatment law, distribute the unclaimed funds to the Class
R-I Certificateholder.
(d) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Paying Agent, the Certificate Registrar, the Depositor or the
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Master Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Trustee and the Depositor
shall perform their respective obligations under the Letter of Representations
among the Depositor, the Trustee and the initial Depository.
(e) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates.
(f) Except as otherwise provided in Section 9.01, whenever the
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Paying
Agent shall, no later than five days after the related Determination Date, mail
to each Holder of record on such date of such Class of Certificates a notice to
the effect that:
(i) the Paying Agent 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 or at such
other location 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 uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(f) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
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
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interest shall accrue or be payable to any former Holder on any amount held in
trust pursuant to this paragraph. If all of the Certificates shall not have been
surrendered for cancellation by the first anniversary following delivery of the
second notice, the Paying Agent shall dispose of all unclaimed funds and other
assets in accordance with applicable state law.
(g) Notwithstanding any other provision of this Agreement, the
Paying Agent shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Paying Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Paying
Agent does withhold any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholders.
(h) All distributions made in respect of any Class of Certificates
(other than the Class X Certificates) on each Distribution Date pursuant to
Section 4.01(a), 4.01(b) or 9.01 shall be deemed to have first been distributed
from REMIC II to REMIC III in respect of its corresponding REMIC II Regular
Interest set forth in the Preliminary Statement hereto; all interest
distributions made in respect of each Component of the Class X Certificates on
each Distribution Date pursuant to Section 4.01(a), 4.01(b) or 9.01 shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
the REMIC II Regular Interest corresponding to the Class of Certificates having
the same alphabetical and numerical (if any) designation as such Component to
the extent of one month's interest accrued at a rate equal to the Pass-Through
Rate for such Component on the Uncertificated Principal Balance of such REMIC II
Regular Interest immediately prior to such Distribution Date.
(i) On each Distribution Date, the portion of the Available
Distribution Amount for such date distributed in respect of the Regular
Certificates pursuant to Section 4.01(a), 4.01(b) or 9.01 shall be deemed to
have first been distributed from REMIC I to REMIC II in respect of the REMIC I
Regular Interests, in each case to the extent of the remaining portions of such
funds, for the following purposes and in the following order of priority:
(i) as deemed distributions of interest in respect of the
REMIC I Regular Interests, in an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest in
respect of each such REMIC I Regular Interest for such Distribution
Date and, to the extent not previously deemed distributed, for all
prior Distribution Dates;
(ii) as deemed distributions of principal in respect of the
REMIC I Regular Interests, in an amount equal to, and pro rata in
accordance with, as to each such REMIC I Regular Interest, the
excess, if any, of the
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Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to such Distribution Date, over the
Stated Principal Balance of the related Mortgage Loan (or successor
REO Loan) that will be outstanding immediately following such
Distribution Date; and
(iii) as deemed distributions in respect of the REMIC I
Regular Interests, in an amount equal to, pro rata in accordance
with, and in reimbursement of previously allocated Realized Losses
and Additional Trust Fund Expenses, allocated to each such REMIC I
Regular Interest.
(j) Notwithstanding anything herein to the contrary, no
distributions shall be made to holders of the Grantor Trust Certificates, except
pursuant to the terms of the Meidinger Tower Agreement.
Any Prepayment Premium distributed to any Class of Certificates on
any Distribution Date shall, in each case, be deemed to have been distributed
from REMIC I to REMIC II in respect of the REMIC I Regular Interest
corresponding to the prepaid Mortgage Loan or REO Loan, as the case may be, in
respect of which such premium was received.
SECTION 4.02. Statements to Certificateholders; CSSA Loan
File Report.
(a) On each Distribution Date, the Trustee shall forward by mail (or
by electronic transmission acceptable to the recipient) to all of the Holders of
each Class of Regular Certificates, a statement (a "Distribution Date
Statement"), as to the distributions made on such Distribution Date, based
solely on information provided to it by the Master Servicer and the Special
Servicer, setting forth:
(i) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates allocable to
Prepayment Premiums;
(iv) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates in
reimbursement of
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previously allocated Realized Losses and Additional Trust Fund
Expenses;
(v) the Available Distribution Amount for such
Distribution Date;
(vi) (a) the aggregate amount of P&I Advances made in respect
of such Distribution Date pursuant to Section 4.03(a), including,
without limitation, any amounts applied pursuant to Section
4.03(a)(ii), and the aggregate amount of unreimbursed P&I Advances
that had been outstanding at the close of business on the related
Determination Date and the aggregate amount of interest accrued and
payable to the Master Servicer or the Trustee in respect of such
unreimbursed P&I Advances in accordance with Section 4.03(d) as of
the close of business on the related Determination Date and (b) the
aggregate amount of Servicing Advances as of the close of business
on the related Determination Date;
(vii) the aggregate unpaid principal balance of the Mortgage
Pool outstanding as of the close of business on the related
Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage
Pool outstanding immediately before and immediately after such
Distribution Date;
(ix) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the close of business on the related
Determination Date;
(x) the number, aggregate unpaid principal balance (as of the
close of business on the related Determination Date) and aggregate
Stated Principal Balance (immediately after such Distribution Date)
of Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89
days, (C) delinquent more than 89 days, and (D) as to which
foreclosure proceedings have been commenced;
(xi) as to each Mortgage Loan referred to in the preceding
clause (x) above, (A) the loan number thereof, (B) the Stated
Principal Balance thereof immediately following such Distribution
Date, and (C) a brief description of any executed loan modification;
(xii) with respect to any Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period
(other than a payment in full), (A) the loan number thereof, (B) the
aggregate of all Liquidation Proceeds and other amounts received in
connection with such
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Liquidation Event (separately identifying the portion thereof
allocable to distributions on the Certificates), and (C) the amount
of any Realized Loss in connection with such Liquidation Event;
(xiii) with respect to any REO Property included in the Trust
Fund as of the end of the Collection Period for such Distribution
Date, the principal balance of the Mortgage Loan as of the date such
Mortgage Loan became delinquent;
(xiv) with respect to any REO Property included in the Trust
Fund as to which a Final Recovery Determination was made during the
related Collection Period, (A) the loan number of the related
Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable
to distributions on the Certificates), and (C) the amount of any
Realized Loss in respect of the related REO Loan in connection with
such Final Recovery Determination;
(xv) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of Regular
Certificates for such Distribution Date;
(xvi) any unpaid Distributable Certificate Interest in respect
of each Class of Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xvii) the Pass-Through Rate for each Class of Regular
Certificates for such Distribution Date;
(xviii) the Principal Distribution Amount for such
Distribution Date, separately identifying the respective components
thereof (and, in the case of any Principal Prepayment or other
unscheduled collection of principal received during the related
Collection Period, the loan number for the related Mortgage Loan and
the amount of such prepayment or other collection of principal);
(xix) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses
incurred during the related Collection Period;
(xx) the aggregate of all Realized Losses and Additional Trust
Fund Expenses that were allocated on such Distribution Date;
(xxi) the Class Principal Balance of each Class of Regular
Certificates (other than the Class X Certificates) and the Component
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Notional Amount of each Component outstanding immediately before and
immediately after such Distribution Date, separately identifying any
reduction therein due to the allocation of Realized Losses and
Additional Trust Fund Expenses on such Distribution Date;
(xxii) the Certificate Factor for each Class of Regular
Certificates immediately following such Distribution Date;
(xxiii) the aggregate amount of interest on P&I Advances paid
to the Master Servicer and the Trustee during the related Collection
Period in accordance with Section 4.03(d);
(xxiv) the aggregate amount of interest on Servicing Advances
paid to the Master Servicer and the Trustee during the related
Collection Period in accordance with Section 3.03(d);
(xxv) the aggregate amount of servicing fees paid to the
Master Servicer and the Special Servicer, collectively and
separately, during the related Collection Period;
(xxvi) a brief description of any material waiver,
modification or amendment of any Mortgage Loan entered into by the
Master Servicer or Special Servicer pursuant to the Pooling and
Servicing Agreement during the related Collection Period; and
(xxvii) the amounts, if any, actually distributed with respect
to the Class R-I Certificates, Class R-II Certificates and Class
R-III Certificates on such Distribution Date.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (x) through (xiii), and (xxiv)
above, insofar as the underlying information is solely within the control of the
Special Servicer, the Trustee and the Master Servicer may, absent manifest
error, conclusively rely on the reports to be provided by the Special Servicer.
The Trustee may rely on and shall not be responsible, absent
manifest error, for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
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The Trustee shall provide by first class mail or make available on
the Trustee's Internet Website on each Distribution Date to each
Certificateholder, the Depositor, the Underwriters, each Rating Agency and any
other Person designated in writing by the Depositor (on diskette or via such
other electronic medium as is mutually acceptable to the Trustee and the
recipient) a copy of the following nine reports or in the case of reports to
Persons designated in writing by the Depositor, any of the following nine
reports delivered to it by the Master Servicer pursuant to Section 3.12(c): (i)
the Delinquent Loan Status Report, (ii) the Historical Loss Estimate Report,
(iii) the Historical Loan Modification Report, (iv) the REO Status Report, (v)
the Watch List, (vi) a Loan Payoff Notification Report, (vii) a Comparative
Financial Status Report, (viii) an Operating Statement Analysis and (ix) an NOI
Adjustment Worksheet. The Trustee shall provide or make available on each
Distribution Date to each Certificateholder, the Underwriters, the Depositor,
each Rating Agency and each other Person that received a Distribution Date
Statement on such Distribution Date a hard copy (or by an electronic medium
acceptable to the recipient) of the CSSA Loan File Report and the CSSA Property
File Report relating to any Distribution Date by electronic medium (including
computer diskette) to the Controlling Class Representative, each Rating Agency
and, upon written request, to either Underwriter and to any Certificateholder or
Certificate Owner entitled to receive a hard copy thereof. Absent manifest
error, none of the Master Servicer or the Special Servicer shall be responsible
for the accuracy or completeness of any information supplied to it by a borrower
or third party that is included in any reports, statements, materials or
information prepared or provided by the Master Servicer or the Special Servicer,
as applicable. The Trustee shall not be responsible, absent manifest error, for
the accuracy or completeness of any information supplied to it for delivery
pursuant to this Section. Neither the Trustee, the Master Servicer nor the
Special Servicer shall have any obligation to verify the accuracy or
completeness of any information provided by a Mortgagor or third party.
On each Distribution Date, the Trustee shall provide or make
available a copy of each Comparative Financial Status Report that it receives
from the Master Servicer to the Depositor, the Underwriters, and each Rating
Agency pursuant to Section 3.12(c). Any Certificateholder may obtain a copy of
each Comparative Financial Status Report upon written request to the Trustee.
Upon specific written request, the Trustee shall deliver a copy of each NOI
Adjustment Worksheet that it receives from the Master Servicer pursuant to
Section 3.12(c) to the Depositor and each Rating Agency. The Trustee shall
automatically deliver a copy of each annual Operating Statement Analysis that it
receives from the Master Servicer pursuant to Section 3.12(c) to each Rating
Agency and the Underwriters on April 30th of such year. The Trustee shall
provide or make available a copy of each annual Operating Statement Analysis
that it receives from the Master Servicer pursuant to Section 3.12(c) to the
Depositor. Any Certificateholder may obtain a copy of any NOI Adjustment
Worksheet or Operating Statement Analysis in the possession of the Trustee upon
written request and at the expense of such Certificateholder.
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Within a reasonable period of time after the end of each calendar
year, the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual basis
(if appropriate) the items provided to Certificateholders pursuant to Section
4.02(a)(i), (ii), (iii) and (iv) above and such other information as may be
required to enable such Certificateholders to prepare their federal income tax
returns. Such information shall include the amount of original issue discount
accrued on each Class of Certificates and information regarding the expenses of
the Trust. Such requirement shall be deemed to be satisfied to the extent such
information is provided pursuant to applicable requirements of the Code from
time to time in force.
On each Distribution Date, the Trustee shall provide or make
available to the holders of the Class R-I, Class R-II and Class R-III
Certificates, which initially is the Trepp Group (at 477 Madison Avenue, 18th
Floor, New York, New York 10022, or such other address as The Trepp Group may
hereafter designate), a copy of the reports forwarded to the Holders of the
Regular Certificates on such Distribution Date and a statement setting forth the
amounts, if any, actually distributed with respect to the Class R-I and Class
R-II Certificates on such Distribution Date. Subsequent holders of the Class
R-I, Class R-II or Class R-III Certificates shall notify the Trustee of their
address.
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Trustee shall mail or cause the mailing of such
statements, reports and/or other written information to such Certificate Owner
upon the request of such Certificate Owner made in writing to the Corporate
Trust Office (accompanied by current verification of such Certificate Owner's
ownership interest). Such portion of such information as may be agreed upon by
the Depositor and the Trustee shall be furnished to any such Person via
overnight courier delivery or telecopy from the Trustee; provided that the cost
of such overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the Special Servicer or
Master Servicer, as applicable, and shall not be liable for any failure to
deliver any thereof on the prescribed due dates, to the extent caused by failure
to receive timely such underlying information. Nothing herein shall obligate the
Trustee or the Master Servicer to violate any applicable law prohibiting
disclosure of information with respect to any Mortgagor and the failure of the
Trustee, Master Servicer or the Special Servicer to disseminate information for
such reason shall not be a breach hereof.
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(b) Not later than 1:30 P.M. on the second Business Day following
each Determination Date the Master Servicer shall furnish to the Trustee, the
Rating Agencies, the Depositor and the Underwriters, by electronic transmission
(or in such other form to which the Trustee, the Underwriters or the Depositor,
as the case may be, and the Master Servicer may agree), with a hard copy of such
transmitted information to follow not later than the third Business Day
following such Determination Date, an accurate and complete CSSA Loan File
Report providing the required information for the Mortgage Loans as of such
Determination Date.
In the performance of its obligations set forth in Section 4.05 and
its other duties hereunder, the Trustee may conclusively rely on the CSSA Loan
File Report provided to it by the Master Servicer, and the Trustee shall not be
responsible to recompute, recalculate or verify the information provided to it
by the Master Servicer. In the case of information to be furnished by the Master
Servicer to the Trustee pursuant to this Section 4.02(b), insofar as such
information is solely within the control of the Special Servicer, the Master
Servicer shall have no obligation to provide such information until it has
received such information from the Special Servicer, shall not be in default
hereunder due to a delay in providing the CSSA Loan File Report caused by the
Special Servicer's failure to timely provide any report required under this
Agreement and may, absent manifest error, conclusively rely on the reports to be
provided by the Special Servicer.
The Trustee shall make available each month, to any interested
party, the Distribution Date Statement via the Trustee's Website, electronic
bulletin board and its fax-on-demand service. In addition, the Trustee shall
make available each month the Unrestricted Servicer Reports on the Trustee's
Internet Website. The Trustee's Internet Website will initially be located at
"www.securitieslink.net/cmbs". In addition, the Trustee shall also make Mortgage
Loan information as presented in the CSSA loan setup file and CSSA loan periodic
update file format available each month to any Certificateholder, the Rating
Agencies, the parties hereto or any other interested party via the Trustee's
Internet Website. In addition, the Trustee shall make available, as a
convenience for interested parties (and not in furtherance of the distribution
of the Prospectus or the Prospectus Supplement under the securities laws), the
Pooling and Servicing Agreement, the Prospectus and the Prospectus Supplement
via the Trustee's Internet Website. The Trustee makes no representations or
warranties and shall not be responsible for the accuracy or completeness of such
documents.
The Trustee shall make available each month the Restricted Servicer
Reports, to any holder or Certificate Owner of an Offered Certificate or any
person identified to the Trustee by any such holder or Certificate Owner as a
prospective transferee of an Offered Certificate or any interest therein, the
Rating Agencies, the Underwriters and to any of the parties to this Agreement
(collectively, "Privileged Persons") via the Trustee's Internet Website with the
use of a password provided by the Trustee to such person upon receipt by the
Trustee from such person of a certification in
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the form attached as Exhibit W-1 or W-2 hereto; provided, however, that the
Rating Agencies, and the parties hereto are not required to provide such
certification.
In connection with providing access to the Trustee's Internet
Website or electronic bulletin board, the Trustee may require registration and
the acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
(c) Notwithstanding anything herein to the contrary, no statements
shall be sent to holders of the Grantor Trust Certificates, except pursuant to
the terms of the Meidinger Tower Agreement.
SECTION 4.03. P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall (i) apply amounts held in the Certificate
Account received after the Determination Date with respect to the related
Collection Period or for future distribution to Certificateholders in subsequent
months in discharge of its obligation to make P&I Advances, or (ii) if such
amounts are insufficient to discharge such obligation, subject to Section
4.03(c) below, remit from its own funds to the Paying Agent for deposit into the
Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the related Distribution Date. The Master Servicer
may also make P&I Advances in the form of any combination of clauses (i) and
(ii) above aggregating the total amount of P&I Advances to be made. Any amounts
held in the Certificate Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Certificate Account on or
before the next succeeding Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal and
interest in respect of which such P&I Advances were made). If, as of 3:00 p.m.,
New York City time, on any P&I Advance Date, the Master Servicer shall not have
made any P&I Advance required to be made on such date pursuant to this Section
4.03(a) (and shall not have delivered to the Trustee the requisite Officer's
Certificate and documentation related to a determination of nonrecoverability of
a P&I Advance), then the Trustee shall provide notice of such failure to a
Servicing Officer of the Master Servicer by facsimile transmission sent to
telecopy 816-435-2327 (or such alternative number provided by the Master
Servicer to the Trustee in writing) and by telephone at telephone 816-435-5000
(or such alternative number provided by the Master Servicer to the Trustee in
writing) as soon as possible, but in any event before 4:00 p.m., New York City
time, on such P&I Advance Date. If the Trustee does not receive the full amount
of such P&I Advances by 10:00 a.m., New York City time, on the related
Distribution Date, then, subject to Section 4.03(c), (i) the Trustee shall, no
later than 11:00 a.m., New York City time, on such related Distribution Date
make the portion of such P&I Advances that was
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required to be, but was not, made by the Master Servicer on such P&I Advance
Date, and (ii) the provisions of Sections 7.01 and 7.02 shall apply.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer or the Trustee in respect of any Distribution Date shall, subject to
Section 4.03(c) below, equal the aggregate of all Scheduled Payments (other than
Balloon Payments) and any Assumed Scheduled Payments, net of related Master
Servicing Fees and any related Recovery Fees, due or deemed due, as the case may
be, in respect of the Mortgage Loans (including, without limitation, Balloon
Mortgage Loans delinquent as to their respective Balloon Payments) and any REO
Loans on their respective Due Dates during the related Collection Period, in
each case to the extent such amount was not paid by or on behalf of the related
Mortgagor or otherwise collected (including received as net income from REO
Properties) as of the close of business on the related Determination Date;
provided, that, (i) if the Monthly Payment on any Mortgage Loan has been reduced
in connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 3.20, or if the final maturity on any
Mortgage Loan shall be extended in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20,
and the Monthly Payment due and owing during the extension period is less than
the related Assumed Scheduled Payment, then the Master Servicer shall, as to
such Mortgage Loan only, advance only the amount of the Monthly Payment due and
owing after taking into account such reduction (net of related Master Servicing
Fees and any related Recovery Fees) in the event of subsequent delinquencies
thereon; and (ii) if it is determined that an Appraisal Reduction Amount exists
with respect to any Required Appraisal Loan, then, with respect to the
Distribution Date immediately following the date of such determination and with
respect to each subsequent Distribution Date for so long as such Appraisal
Reduction Amount exists with respect to such Required Appraisal Loan, the Master
Servicer or the Trustee will be required in the event of subsequent
delinquencies to advance in respect of such Mortgage Loan (or in the case of the
Meidinger Tower Loan, the Meidinger Senior Interest) only an amount equal to (1)
the product of (A) the amount of the interest component of the P&I Advance for
such Mortgage Loan that would otherwise be required without regard to this
clause (ii), multiplied by (B) a fraction, the numerator of which is equal to
the Stated Principal Balance of such Mortgage Loan, net of such Appraisal
Reduction Amount, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan, plus (2) the principal amount of the P&I Advance
for such Mortgage Loan.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer that it has made a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officers'
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Certificate delivered to the Controlling Class Representative, the Trustee, the
Rating Agencies and the Depositor on or before the related P&I Advance Date,
setting forth the basis for such determination, together with any other
information, including Appraisals or, if no such Appraisal has been performed
pursuant to this Section 4.03(c), a copy of an Appraisal of the related
Mortgaged Property performed within the twelve months preceding such
determination, related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Properties, engineers' reports,
environmental surveys and any similar reports that the Master Servicer may have
obtained consistent with the Servicing Standard and at the expense of the Trust
Fund, that support such determination by the Master Servicer. The Trustee shall
be entitled to rely, conclusively, on any determination by the Master Servicer
that a P&I Advance, if made, would be a Nonrecoverable Advance (and with respect
to a P&I Advance, the Trustee, as applicable, shall rely on the Master
Servicer's determination that the P&I Advance would be a Nonrecoverable Advance
if the Trustee determines that it does not have sufficient time to make such
determination); provided, however, that if the Master Servicer has failed to
make a P&I Advance for reasons other than a determination by the Master Servicer
that such P&I Advance would be a Nonrecoverable Advance, the Trustee shall make
such Advance within the time periods required by Section 4.03(a) unless the
Trustee, in good faith, makes a determination prior to the times specified in
Section 4.03(a) that such P&I Advance would be a Nonrecoverable Advance. The
Trustee in determining whether or not a P&I Advance previously made is, or a
proposed P&I Advance, if made, would be, a Nonrecoverable Advance shall be
subject to the standards applicable to the Master Servicer hereunder.
(d) In connection with the recovery by the Master Servicer or the
Trustee of any P&I Advance out of the Certificate Account pursuant to Section
3.05(a), if default interest and late charges on the related Mortgage Loan shall
be insufficient therefor, the Master Servicer shall be entitled to pay itself
and the Trustee out of any amounts then on deposit in the Certificate Account,
interest at the Reimbursement Rate in effect from time to time compounded
annually, accrued on the amount of such P&I Advance from the date made to but
not including the date of reimbursement; 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 the Meidinger Tower Loan for the
period commencing on the date of such P&I Advance and ending on the date on
which a remittance is required to be made to the Master Servicer pursuant to the
Meidinger Tower Agreement. The Master Servicer shall reimburse itself or the
Trustee, as applicable, for any outstanding P&I Advance made thereby as soon as
practicable after funds available for such purpose have been received by the
Master Servicer, and in no event shall interest accrue in accordance with this
Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection
was received by the Master Servicer as of the related P&I Advance Date.
(e) In addition to its other obligations under this Section 4.03,
the Master Servicer shall make P&I Advances as required pursuant to Section 4.03
of the
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Meidinger Tower Agreement. If the Master Servicer shall not have made any P&I
Advance required to be made pursuant to Section 4.03 of the Meidinger Tower
Agreement (and shall not have delivered to the Trustee the requisite Officer's
Certificate and documentation related to a determination of nonrecoverability of
a P&I Advance), then the Trustee shall provide notice of such failure to a
Servicing Officer of the Master Servicer by facsimile transmission sent to
telecopy 816-435-2327 (or such alternative number provided by the Master
Servicer to the Trustee in writing) and by telephone at telephone 816-435-5000
(or such alternative number provided by the Master Servicer to the Trustee in
writing) as soon as possible, but in any event before 4:00 p.m., New York City
time, on such Distribution Date. If the Trustee does not receive the full amount
of such P&I Advance by 10:00 a.m., New York City time, on the related
Distribution Date, then, subject to Section 4.03(c), (i) the Trustee shall, no
later than 11:00 a.m., New York City time, on such related Distribution Date
make the portion of such P&I Advance that was required to be, but was not, made
by the Master Servicer on such Distribution Date, and (ii) the provisions of
Sections 7.01 and 7.02 shall apply.
SECTION 4.04. Allocation of Realized Losses and Additional
Trust Fund Expenses.
(a) On each Distribution Date, prior to the distributions to be made
on such date pursuant to Section 4.01, the Paying Agent shall allocate to the
respective Classes of Regular Certificates as follows the aggregate of all
Realized Losses and Additional Trust Fund Expenses that were incurred at any
time following the Cut-Off Date through the end of the related Collection
Period, and in any event that were not previously allocated pursuant to this
Section 4.04(a) on any prior Distribution Date, but only to the extent that (i)
the aggregate Certificate Principal Balance of the Regular Certificates as of
such Distribution Date (after taking into account all of the distributions made
on such Distribution Date pursuant to Section 4.01), exceeds (ii) the aggregate
Stated Principal Balance of the Mortgage Pool to be outstanding immediately
following such Distribution Date: first, to the Class M, Class L, Class K, Class
J, Class H, Class G, Class F, Class E, Class D, Class C and Class B
Certificates, in that order, until the respective remaining Class Principal
Balance of each such Class has been reduced to zero and second, to the Class
A-1, Class A-2 and Class A-3 Certificates, pro rata, in accordance with the
outstanding Certificate Principal Balances of such Classes of Certificates,
until the remaining Class Principal Balance of each such Class has been reduced
to zero. All Realized Losses and Additional Trust Fund Expenses, if any, that
have not been allocated to the Regular Certificates as of the Distribution Date
on which the aggregate Certificate Principal Balance of such Certificates has
been reduced to zero, shall be deemed allocated to the Residual Certificates.
(b) Each Realized Loss and Additional Trust Fund Expense, if any,
allocated to any Regular Certificates on any Distribution Date shall be deemed
to have first been allocated to the corresponding class of REMIC II Regular
Interest with a
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corresponding reduction in the Uncertificated Principal Balance of such REMIC II
Regular Interest.
(c) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(i),
the Uncertified Principal Balance of each REMIC I Regular Interest (after taking
account of such deemed distributions) shall be reduced to equal the Stated
Principal Balance of the related Mortgage Loan or REO Loan, as the case may be,
that will be outstanding immediately following such Distribution Date. Such
reductions shall be deemed to be an allocation of Realized Losses and Additional
Trust Fund Expenses.
SECTION 4.05. Calculations.
The Paying Agent shall, provided it receives the necessary
information from the Master Servicer and the Special Servicer, be responsible
for performing all calculations necessary in connection with the actual and
deemed distributions and allocations to be made pursuant to Section 4.01,
Section 5.02(d) and Article IX and the actual and deemed allocations of Realized
Losses and Additional Trust Fund Expenses to be made pursuant to Section 4.04.
The Paying Agent shall calculate the Available Distribution Amount for each
Distribution Date and shall allocate such amount among Certificateholders in
accordance with this Agreement, and the Paying Agent shall have no obligation to
recompute, recalculate or verify any information provided to it by the Special
Servicer or Master Servicer. The calculations by the Paying Agent of such
amounts shall, in the absence of manifest error, be presumptively deemed to be
correct for all purposes hereunder.
SECTION 4.06. Use of Agents.
The Master Servicer, the Special Servicer or the Trustee may at its
own expense utilize agents or attorneys-in-fact in performing any of its
obligations under this Article IV (except the obligation to make P&I Advances),
but no such utilization shall relieve the Master Servicer, the Special Servicer
or the Trustee from any of such obligations, and the Master Servicer, the
Special Servicer or the Trustee, as applicable, shall remain responsible for all
acts and omissions of any such agent or attorney-in-fact (other than with
respect to limited powers-of-attorney delivered by the Trustee to the Master
Servicer, the Special Servicer or Special Servicer pursuant to Section 2.03(b)
and 3.01(b), as applicable, in which case the Trustee shall have no such
responsibility).
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-19; provided, that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the Sequential Pay Certificates
and the Class X Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Regular Certificates will be
issuable only in denominations corresponding to initial Certificate Principal
Balances (or other denominations consistent with the requirements of the
Depository) or initial Certificate Notional Amount, as the case may be, as of
the Closing Date of not less than $1,000 in the case of the Registered
Certificates, and not less than $250,000 in the case of the Class F, Class G,
Class H, Class J, Class K, Class L and Class M Certificates, and in each such
case in integral multiples of $1 in excess thereof. No more than one Grantor
Trust Certificate shall be issued and outstanding at any time. The Residual
Certificates will not have any Certificate Principal Balance or Certificate
Notional Amount.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Certificate
Registrar shall be entitled to all benefits under this Agreement, subject to the
following sentence, 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, however, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
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.
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SECTION 5.02. 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
(located as of the Closing Date at Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113), 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 in accordance with the terms hereof) 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 Depositor, the Trustee (if the
Trustee is not the Certificate Registrar), the Special Servicer and the Master
Servicer, 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. If the
Trustee resigns or is removed in accordance with the terms hereof, the successor
trustee shall immediately succeed to its duties as Certificate Registrar. The
Depositor, the Trustee (if it is no longer the Certificate Registrar), the
Master Servicer and the Special 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. Upon written request of any
Certificateholder made for purposes of communicating with other
Certificateholders with respect to their rights under this Agreement, the
Certificate Registrar shall promptly furnish such Certificateholder with a list
of the other Certificateholders of record identified in the Certificate Register
at the time of the request.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If such a transfer is to be made
without registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor or its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1 hereto, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit F-2 hereto or as Exhibit F-3 hereto; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (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), together with the
written certification(s)
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as to the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Non-Registered Certificate without registration or
qualification. Any Holder of a Non-Registered Certificate desiring to effect
such a transfer shall, and upon acquisition of such a Certificate shall be
deemed to have agreed 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) No transfer of a Subordinated Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or the
prohibited transactions restrictions of Section 4975 of the Code (each, a
"Plan"), or (B) to any Person who is directly or indirectly purchasing such
Subordinated Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute "plan assets" of a Plan); provided, that (i) such a transfer may be
made to an insurance company general account with respect to any Class of
Subordinated Certificates which is eligible for exemptive relief under Section
III of Prohibited Transaction Class Exemption 95-60 ("PTE 95-60"), provided that
the proposed transferee certifies that the conditions of Sections I, III and IV
of PTE 95-60 are satisfied with respect to such transfer, and (ii) such a
transfer may be made with respect to a Class F, Class G, Class H, Class J, Class
K, Class L and Class M Certificate if the prospective transferee provides the
Certificate Registrar with a certification of facts and an Opinion of Counsel
(upon which the Certificate Registrar may conclusively rely) 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 result in
the imposition of an excise tax under Section 4975 of the Code. As a condition
to its registration of the transfer of a Subordinated Certificate, the
Certificate Registrar shall have the right to require the prospective transferee
of such Certificate to execute a certification affidavit in the form attached as
Exhibit G hereto.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Paying Agent under clause (ii)(A) below
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) below to negotiate the
terms of any mandatory sale and to execute all instruments of Transfer and to do
all other things necessary in connection
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with any such sale. The rights of each Person acquiring any Ownership Interest
in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and shall promptly notify the Master Servicer, the
Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of a
Residual Certificate, the Certificate Registrar shall require
delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of an affidavit and
agreement substantially in the form attached hereto as Exhibit
H-1 (in any case, a "Transfer Affidavit and Agreement"), from
the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, and upon which the Certificate
Registrar may, in the absence of actual knowledge by a
Responsible Officer of either the Trustee or the Certificate
Registrar to the contrary, conclusively rely, representing and
warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership
Interest in the Residual Certificate that is the subject of
the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as
it retains its Ownership Interest in a Residual Certificate,
it will endeavor to remain a Permitted Transferee, and that it
has reviewed the provisions of this Section 5.02(d) and agrees
to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause (B) above,
if a Responsible Officer of the Certificate Registrar has
actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of a Residual Certificate to
such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1) to require
a Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to transfer its
Ownership Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual Certificate
unless it provides to the Certificate Registrar a certificate
substantially in the form attached hereto as Exhibit H-2
stating that, among other things, it has no
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actual knowledge that such prospective Transferee is not a
Permitted Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate, by purchasing an Ownership
Interest in such Certificate, agrees to give the Master
Servicer and the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary
Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Residual
Certificate, if it is, or is holding an Ownership Interest in
a Residual Certificate on behalf of, a "pass-through interest
holder".
(ii) (A) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual
Certificate that was in compliance with the provisions of this
Section 5.02(d) shall be restored, to the extent permitted by law,
to all rights as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of
the Trustee, the Master Servicer or the Certificate Registrar shall
be under any liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not permitted by
this Section 5.02(d) or for making any payments due on such
Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the restrictions in this
Section 5.02(d) and to the extent that the retroactive restoration
of the rights of the Holder of such Residual Certificate as
described in clause (ii)(A) above shall be invalid, illegal or
unenforceable, then the Certificate Registrar shall have the right,
but not the obligation, without notice to the Holder or any prior
Holder of such Residual Certificate, to sell such Residual
Certificate to a qualified purchaser selected by the REMIC
Administrator on such terms as the Certificate Registrar may choose.
Such purported Transferee shall promptly endorse and deliver such
Residual Certificate in accordance with the instructions of the
Certificate Registrar. Such purchaser may be the Certificate
Registrar itself or any Affiliate of the Certificate Registrar. The
proceeds of such sale, net of the commissions (which may include
commissions payable to the Certificate Registrar or its Affiliates),
expenses and taxes due, if any, will be remitted by the Paying Agent
to such purported Transferee. The terms and conditions of any sale
under this clause (ii)(B) shall be determined in the sole discretion
of the Certificate Registrar, and the Certificate Registrar shall
not be liable to any Person
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having an Ownership Interest in a Residual Certificate as a result
of its exercise of such discretion.
(iii) The Certificate Registrar shall make available to the
Internal Revenue Service and to those Persons specified by the REMIC
Provisions any information in its possession which is necessary to
compute any tax imposed (A) as a result of the Transfer of a
Residual Certificate to any Person who is a Disqualified
Organization, including the information described in Treasury
Regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect
to the "excess inclusions" of such Residual Certificate and (B) as a
result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership
Interest in a Residual Certificate having as among its record
holders at any time any Person which is a Disqualified Organization,
and the Master Servicer and the Special Servicer shall furnish to
the Certificate Registrar all information in its possession
necessary for the Certificate Registrar to discharge such
obligation. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the Certificate
Registrar, the Master Servicer and the Special Servicer for
providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to
this clause (iv) may be modified, added to or eliminated, provided
that there shall have been delivered to the Certificate Registrar
and the Master Servicer the following:
(A) written confirmation from each Rating Agency to the
effect that the modification of, addition to or elimination of
such provisions will not cause such Rating Agency to downgrade
its then-current rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Certificate Registrar and the Master
Servicer, obtained at the expense of the party seeking such
modification of, addition to or elimination of such provisions
(but in no event at the expense of the Trust Fund), to the
effect that doing so will not cause any of REMIC I, REMIC II
or REMIC III to (x) cease to qualify as a REMIC or (y) be
subject to an entity-level tax caused by the Transfer of any
Residual Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Residual Certificate to a Person that is not a
Permitted Transferee.
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(e) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No fee or service charge shall be imposed for any transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(j) Upon request, the Certificate Registrar shall provide to the
Master Servicer, the Special Servicer and the Depositor notice of each transfer
of a Certificate and shall provide to each such Person with an updated copy of
the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Sequential Pay Certificates and Class X
Certificates shall initially be issued as one or more Certificates registered in
the name of the Depository or its nominee and, except as provided in Section
5.03(c) below, transfer of such Certificates may not be registered by the
Certificate Registrar unless such transfer is to a successor Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and transfer
their respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in Section
5.03(c) below, shall not be entitled to definitive, fully registered
Certificates ("Definitive
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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 each such Certificate
Owner. Each Depository Participant shall only transfer the Ownership Interests
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.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the 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 the 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.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, at the Depositor's expense, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates in respect of
such Class to the Certificate Owners identified in such instructions. The
Depositor shall provide the Certificate Registrar with an adequate inventory of
Definitive Certificates. None of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar shall be liable for 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 for purposes of evidencing ownership of any Class of Registered
Certificates, the registered holders of such Definitive Certificates shall be
recognized as
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Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
SECTION 5.04. 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
actual notice to the Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Certificate Registrar shall
execute and the Authenticating Agent 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 applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, 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 4.01 and for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE CONTROLLING
CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and
Special Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor
or Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each 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, the Master Servicer or the Special Servicer 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, the Master Servicer or the
Special Servicer shall be a party, or any Person succeeding to the business of
the Depositor, the Master Servicer or the Special Servicer, shall be the
successor of the Depositor, the Master Servicer or the Special Servicer, as the
case may be, 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 no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as evidenced in writing by the Rating Agencies, such
succession will not result in qualification, downgrading or withdrawal of the
ratings then assigned by the Rating Agencies to any Class of Certificates; (ii)
in the case of a successor or surviving Person to the Master Servicer, such
successor or surviving Person shall have a net worth (or, in the case of the
initial Master Servicer, such successor or surviving Person and its immediate
parent shall have a consolidated net worth) of not less than $15,000,000 and
(iii) such successor or surviving Person makes the representations and
warranties substantially similar to those in Sections 2.04, 3.23(a) and 3.23(b),
as applicable.
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SECTION 6.03. Limitation on Liability of Depositor, Master
Servicer and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or the Special
Servicer against any liability to the Trust Fund, the Trustee or the
Certificateholders for the breach of a representation or warranty made herein by
such party, or against any expense or liability specifically required to be
borne by such party without right of reimbursement pursuant to the terms hereof,
or against any liability which would otherwise be imposed by reason of
misfeasance, bad faith or negligence in the performance of covenants,
obligations or duties hereunder. The Depositor, the Master Servicer, the Special
Servicer and any director, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer may rely in good faith on any document
of any kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer,
the Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer or the Special Servicer shall be indemnified and
held harmless by the Trust Fund against any loss, liability or reasonable
expense incurred in connection with this Agreement or the Certificates, other
than any loss, liability or expense: (i) specifically required to be borne by
such party without right of reimbursement pursuant to the terms hereof; (ii)
incurred in connection with any breach by such party of a representation or
warranty made herein; (iii) incurred by reason of willful misfeasance, bad faith
or negligence on the part of such party in the performance of covenants,
obligations or duties hereunder; or (iv) incurred in connection with any
violation of any state or federal securities law. None of the Depositor, the
Master Servicer or the Special Servicer shall be under any obligation to appear
in, prosecute or defend any legal action unless such action is related or
incidental to its respective duties under this Agreement and, unless it is
specifically required hereunder to bear the costs of such legal action, in its
opinion does not involve it in any ultimate expense or liability; provided,
however, that the Depositor, the Master Servicer or the Special Servicer may in
its discretion undertake any such action which it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall constitute a Servicing Advance, and the
Depositor, the Master Servicer and the Special Servicer shall be entitled to be
reimbursed therefor from the Certificate Account as provided in Section 3.05. In
no event shall the Master Servicer or the Special Servicer be liable or
responsible for any action taken or omitted to be taken by the other of them or
by the Depositor, the Trustee or any Certificateholder, subject to the
provisions of the last paragraph of Section 8.05.
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Each of the Master Servicer and the Special Servicer, as applicable,
shall indemnify the Trust Fund against any loss, liability or reasonable expense
incurred (i) in connection with any breach by it of a representation or warranty
made by such party herein or (ii) by reason of willful misfeasance, bad faith or
negligence on the part of such party in the performance of covenants,
obligations or duties hereunder.
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer; Assignment of Rights and Obligations
The Master Servicer and, subject to Section 6.09, the Special
Servicer shall resign from the obligations and duties hereby imposed on it, upon
a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 7.02 hereof. Each of the Master Servicer and the
Special Servicer shall have the right to resign at any other time and to assign
its rights and obligations pursuant to this Agreement to a third party;
provided, that, with respect to the successor to either the Master Servicer or
the Special Servicer, (i) each of the Rating Agencies confirms in writing that
the successor's appointment or the assignment by the Master Servicer or Special
Servicer, as the case may be, will not result in a withdrawal, qualification or
downgrade of any rating or ratings assigned to any Class of Certificates, (ii)
the resigning or assigning party pays all costs and expenses in connection with
such transfer, (iii) the successor accepts appointment prior to the
effectiveness of such resignation; and (iv) in the event of assignment by the
Master Servicer to a third party, such third party satisfies all of the
requirements for a successor Master Servicer set forth in Section 7.02.
Consistent with the foregoing and except as provided in the
preceding paragraph, neither the Master Servicer nor the Special Servicer shall,
except as expressly provided herein, assign or transfer any of its rights,
benefits or privileges hereunder to any other Person, or, except as provided in
Sections 3.22 and 4.06, delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by it hereunder unless the requirements for resignation set forth in
the immediately preceding paragraph are met. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the entire amount of compensation payable to
the
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Master Servicer or the Special Servicer, as the case may be, that accrues
pursuant hereto from and after the date of such transfer shall, except as
otherwise provided herein, be payable to such successor.
SECTION 6.05. Rights of Depositor and Trustee in Respect of
Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor and the Trustee, upon reasonable notice, during normal business hours
access to all records maintained thereby in respect of its rights and
obligations hereunder and access to officers thereof responsible for such
obligations. Upon reasonable request, each of the Master Servicer and, to the
extent relevant to the performance of the Special Servicer's duties hereunder,
the Special Servicer shall furnish the Depositor and the Trustee with its most
recent financial statements and such other information as it possesses, and
which it is not prohibited by applicable law or contract from disclosing,
regarding its business, affairs, property and condition, financial or otherwise,
except to the extent such information constitutes proprietary information or is
subject to a privilege under applicable law. The Depositor may, but is not
obligated to, enforce the obligations of the Master Servicer and the Special
Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer or Special
Servicer hereunder or exercise the rights of the Master Servicer and the Special
Servicer hereunder; provided, however, that neither the Master Servicer nor the
Special Servicer shall be relieved of any of its obligations hereunder by virtue
of such performance by the Depositor or its designee and, further provided, that
the Depositor may not exercise any right pursuant to Section 7.01 to terminate
the Master Servicer or the Special Servicer as a party to this Agreement. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Special Servicer and is not
obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer
to Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
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SECTION 6.08. Depositor, Master Servicer and Trustee to
Cooperate with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer by the
Controlling Class.
The Holder or Holders of the Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class may at any time and from
time to time designate a Person meeting the requirements set forth in Section
6.02 to serve as Special Servicer hereunder and to replace any existing Special
Servicer or any Special Servicer that has resigned or otherwise ceased to serve
as Special Servicer by the delivery to the Trustee, the Master Servicer and the
existing Special Servicer of a written notice stating such designation. Such
Holder or Holders may also select a representative (the "Controlling Class
Representative") which will have the rights specified in Section 6.11 or
otherwise expressly provided herein. Such Holder or Holders shall promptly
notify the Special Servicer of any such selection. The Trustee shall, promptly
after receiving any such notice, deliver to the Rating Agencies an executed
Notice and Acknowledgment in the form attached hereto as Exhibit I-1. Any costs
or expenses incurred in connection with the replacement by such Holder or
Holders of any Special Servicer previously appointed by such Holder or Holders,
for which the circumstances of such replacement are other than those resulting
from the resignation or termination of the Special Servicer pursuant to Sections
6.04 and 7.01, respectively, or the appointment of an alternative Special
Servicer shall be borne by the Controlling Class. If such Holders have not
replaced the Special Servicer within 30 days of such Special Servicer's
resignation or the date such Special Servicer has ceased to serve in such
capacity the Trustee shall utilize its best efforts to designate a successor
Special Servicer meeting the requirements set forth in Sections 6.02 and 7.02.
The designated Person shall become the Special Servicer on the date that the
Trustee shall have received written confirmation from all of the Rating Agencies
that the appointment of such Person will not result in the qualification,
downgrading or withdrawal of the rating or ratings assigned to one or more
Classes of the Certificates. The appointment of such designated Person as
Special Servicer shall also be subject to receipt by the Trustee of an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the designated Person. Any existing Special Servicer
shall be deemed to have resigned simultaneously with such designated Person's
becoming the Special Servicer hereunder; provided, however, that the resigning
or terminated Special Servicer shall continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or prior to the effective
date of such resignation, whether in respect of Servicing Advances or otherwise,
including, without limitation, any Recovery Fee or proportionate share thereof,
and it shall continue to be entitled to the benefits of Section
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6.03 notwithstanding any such resignation. Such resigning Special Servicer shall
cooperate with the Trustee and the replacement Special Servicer in effecting the
termination of the resigning Special Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer within two Business Days
to the replacement Special Servicer for administration by it of all cash amounts
that shall at the time be or should have been credited by the Special Servicer
to the REO Account or delivered to the Master Servicer or that are thereafter
received with respect to Specially Serviced Mortgage Loans and REO Properties.
SECTION 6.10. Master Servicer or Special Servicer as Owner of
a Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with the same rights it would have (except as otherwise set
forth in the definition of "Certificateholder") if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer's or the Special
Servicer's good faith judgment, violate the Servicing Standard, and (ii) if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
good faith judgment, be considered by other Persons to violate the Servicing
Standard, the Master Servicer or the Special Servicer may (but need not) seek
the approval of the Certificateholders to such action by delivering to the
Trustee a written notice that (a) states that it is delivered pursuant to this
Section 6.10, (b) identifies the Percentage Interest in each Class of
Certificates beneficially owned by the Master Servicer or the Special Servicer
or an Affiliate of the Master Servicer or the Special Servicer, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates) shall have failed to object in writing to
the proposal described in the written notice, and if the Master Servicer or the
Special Servicer shall act as proposed in the written notice within fifteen (15)
days, such action shall be deemed to comply with the Servicing Standard. The
Trustee shall be entitled to reimbursement from the Master Servicer or the
Special Servicer, as applicable, for the reasonable expenses of the Trustee
incurred pursuant to this paragraph. It is not the intent of the foregoing
provision that the Master Servicer or
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the Special Servicer be permitted to invoke the procedure set forth herein with
respect to routine servicing matters arising hereunder, but rather in the case
of unusual circumstances.
SECTION 6.11. The Controlling Class Representative.
(a) The Controlling Class Representative will be entitled to advise
the Special Servicer with respect to the following actions of the Special
Servicer in connection with a Specially Serviced Mortgage Loan, and, subject to
the succeeding paragraph, the Special Servicer will not be permitted to take any
of the following actions unless the Controlling Class Representative has
approved such action in writing within ten Business Days of having been notified
thereof and having been provided with all reasonably requested information with
respect thereto (provided that if such written notice has not been received by
the Special Servicer within ten Business Days, then the Controlling Class
Representative's approval will be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default;
(ii) any modification of a monetary term of a Mortgage Loan;
(iii) any proposed sale of a defaulted Mortgage Loan or REO
Property (other than in connection with the termination of the Trust
Fund);
(iv) any acceptance of a discounted payoff;
(v) any determination to bring an REO Property into compliance
with applicable environmental laws or to otherwise address hazardous
materials located at an REO Property;
(vi) any release of collateral (other than in accordance with
the terms of, or upon satisfaction of, a Mortgage Loan);
(vii) any acceptance of substitute or additional collateral
for a Mortgage Loan (other than in accordance with the terms of a
Mortgage Loan);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause (other than in accordance with the terms of a Mortgage Loan);
and
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(ix) any acceptance of an assumption agreement releasing a
borrower from liability under a Mortgage Loan (other than in
accordance with the terms of a Mortgage Loan).
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, such other actions as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made herein. Upon reasonable request, the Special Servicer shall
provide the Controlling Class Representative with any information in the Special
Servicer's possession with respect to such matters, including, without
limitation, its reasons for determining to take a proposed action; provided that
such information shall also be provided, in a written format, to the Trustee,
who shall provide a copy thereof to the Master Servicer.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or approval rights provided in this Section 6.11 (including pursuant
to the preceding paragraph) may (and the Special Servicer shall ignore and act
without regard to any such advice, direction or approval rights that the Special
Servicer has determined in its reasonable, good faith judgment, will) require or
cause the Special Servicer to violate any provision of this Agreement or the
REMIC Provisions, including the Special Servicer's obligation to act in
accordance with the Servicing Standard or expose the Master Servicer, the
Special Servicer, the Trust Fund or the Trustee to liability, or materially
expand the scope of the Special Servicer's responsibilities hereunder.
(c) The Controlling Class Representative 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; provided, however, that the Controlling Class Representative will not
be protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations or duties. By its acceptance
of a Certificate, each Certificateholder confirms its understanding that the
Controlling Class Representative may take actions that favor the interests of
one or more Classes of the Certificates over other Classes of the Certificates,
and that the Controlling Class Representative may have special relationships and
interests that conflict with those of holders of some Classes of the
Certificates, that the Controlling Class Representative does not have any duties
to the Holders of any Class of certificates other than the Controlling Class,
and, absent willful misfeasance, bad faith or gross negligence on the part of
the Controlling Class Representative, each Certificateholder agrees to take no
action against the Controlling Class Representative or any of its officers,
directors, employees, principals or agents as a result of such a special
relationship or conflict, and that the Controlling Class Representative will not
be deemed to have been grossly negligent or reckless, or to have acted in bad
faith or engaged in willful misfeasance or to have recklessly disregarded any
obligations or duties by reason of its having acted solely in the interests of
the Controlling Class and
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that the Controlling Class Representative will have no liability whatsoever for
having so acted.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer or the Special Servicer
to deposit into the Certificate Account, or to deposit into, or any
failure by the Master Servicer to remit to the Paying Agent for
deposit into, the Distribution Account, any amount required to be so
deposited or distributed by it under this Agreement; or
(ii) any failure by the Special Servicer to deposit into the
REO Account or to deposit into, or to remit to the Master Servicer
for deposit into, the Certificate Account any amount required to be
so deposited or remitted under this Agreement; or
(iii) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Master
Servicer or the Special Servicer, as the case may be, 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 the Master
Servicer and the Special Servicer, as the case may be, by any other
party hereto or to the Master Servicer or the Special Servicer, as
the case may be (with a copy to each other party hereto), by the
Holders of Certificates entitled to at least 25% of the Voting
Rights; provided, however, that with respect to any such failure
which is not curable within such 30-day period, the Master Servicer
or the Special Servicer, as the case may be, shall have an
additional cure period of thirty (30) days to effect such cure so
long as the Master Servicer or the Special Servicer, as the case may
be, has commenced to cure such failure within the initial 30-day
period and has provided the Trustee with an Officer's Certificate
certifying that it has diligently pursued, and is continuing to
pursue, a full cure; or
(iv) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any
Class of Certificateholders, the Trustee, the Master Servicer or the
Special Servicer and which continues unremedied for a period of 30
days after the date on
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which notice of such breach, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or to the
Master Servicer or the Special Servicer, as the case may be (with a
copy to each other party hereto), by the Holders of Certificates
entitled to at least 25% of the Voting Rights ;provided, however,
that with respect to any such failure which is not curable within
such 30-day period, the Master Servicer or the Special Servicer, as
the case may be, shall have an additional cure period of thirty (30)
days to effect such cure so long as the Master Servicer or the
Special Servicer, as the case may be, has commenced to cure such
failure within the initial 30-day period and has provided the
Trustee with an Officer's Certificate certifying that it has
diligently pursued, and is continuing to pursue, a full cure; or
(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 for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy,
insolvency, 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 the
Master Servicer or the Special Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period
of 60 days; or
(vi) the Master Servicer or the Special Servicer shall consent
to the appointment of a conservator, receiver, liquidator, trustee
or similar official in any bankruptcy, insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of
or relating to it or of or relating to all or substantially all of
its property; or
(vii) the Master Servicer or the Special 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 bankruptcy,
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
(viii) the consolidated net worth of the Master Servicer and
of its direct or indirect parent, determined in accordance with
generally accepted accounting principles, shall decline to less than
$15,000,000; or
(ix) the Trustee shall have received a written notice from a
Rating Agency (which the Trustee shall promptly forward to the
Master
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Servicer or the Special Servicer as the case may be) to the effect
that if the Master Servicer or Special Servicer continues to act in
such capacity, the rating or ratings on one or more Classes of
Certificates will be qualified, downgraded or withdrawn and the
Trustee shall not have received a subsequent notice from such Rating
Agency (within 90 days of receipt of the first notice) indicating
anything to the contrary (and upon the 91st day the provisions of
Section 7.01(b) shall apply); or
(x) the Master Servicer or the Special Servicer shall breach
the covenant set forth in Section 3.23(d) or 3.23(e), respectively
or;
(xi) an Event of Default which does not arise out of an
Initial Sub-Servicer Event of Default (as defined in the Meidinger
Tower Agreement) shall have occurred and be continuing under the
Meidinger Tower Agreement.
When a single entity acts as the Master Servicer and the Special Servicer, an
Event of Default in one capacity shall constitute an Event of Default in the
other capacity.
(b) If any Event of Default described in clauses (i) - (viii) and
clause (xi) of subsection (a) above shall occur with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") and shall be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights, the Trustee shall, by notice in
writing to the Defaulting Party (with a copy of such notice to each other party
hereto and the Rating Agencies) terminate all of the rights and obligations (but
not the liabilities for actions and omissions occurring prior thereto) of the
Defaulting Party under this Agreement and in and to the Trust Fund, other than
its rights as a Certificateholder hereunder. If an Event of Default described in
clause (ix) or (x) of subsection (a) above shall occur with respect to the
Master Servicer or, if applicable, the Special Servicer (in either case, under
such circumstances, for purposes of this Section 7.01(b), the "Defaulting
Party"), the Trustee shall, by notice in writing (to be sent immediately by
facsimile transmission) to the Defaulting Party (with a copy of such notice to
each other party hereto) and the Rating Agencies, terminate all of the rights
(except as set forth below) and obligations (but not the liabilities for actions
and omissions occurring prior thereto) of the Defaulting Party under this
Agreement and in and to the Trust Fund, other than its rights, if any, as a
Certificateholder hereunder. From and after the receipt by the Defaulting Party
of such written notice of termination, all authority and power of the Defaulting
Party under this Agreement, whether with respect to the Certificates (other than
as a holder of any Certificate) or the Mortgage Loans or otherwise, shall pass
to and be vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the Defaulting Party, 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
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such notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise.
(c) The Master Servicer and the Special Servicer each agree that, if
it is terminated pursuant to Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records, including those
in electronic form, requested thereby to enable the Trustee to assume the Master
Servicer's or Special Servicer's, as the case may be, functions hereunder, and
shall cooperate with the Trustee in effecting the termination of the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including, without limitation, (i) in the case of the Master
Servicer, the immediate transfer to the Trustee or a successor Master Servicer
for administration by it of all cash amounts that shall at the time be or should
have been credited by the Master Servicer to the Certificate Account, the
Distribution Account or a Servicing Account (if the Master Servicer is the
Defaulting Party) or that are thereafter received by or on behalf of the
terminated Master Servicer with respect to any Mortgage Loan or (ii) in the case
of the Special Servicer, the transfer within two Business Days to the Trustee or
a successor Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the Special Servicer to the
REO Account, the Certificate Account or a Servicing Account or delivered to the
Master Servicer (if the Special Servicer is the Defaulting Party) or that are
thereafter received by or on behalf of the terminated Special Servicer with
respect to any Mortgage Loan or REO Property (provided, however, that the Master
Servicer and the Special Servicer each shall, if terminated pursuant to Section
7.01(b), continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the date of such termination, whether in
respect of Advances, Recovery Fees payable to the terminated Special Servicer
pursuant to Section 3.11(c), any amounts payable to the Master Servicer pursuant
to the last sentence of Section 3.11(a) or otherwise, and it shall continue to
be entitled to the benefits of Section 6.03 notwithstanding any such
termination).
(d) Any cost or expenses in connection with any actions to be taken
by the Master Servicer or Special Servicer or the Trustee pursuant to Section
7.01(c) shall be borne by the Defaulting Party and if not paid by the Defaulting
Party within 90 days after the presentation of reasonable documentation of such
costs and expenses, such expense shall be reimbursed by the Trust Fund;
provided, however, that the Defaulting Party shall not thereby be relieved of
its liability for such expenses. If and to the extent that the Defaulting Party
has not reimbursed such costs and expenses, the Trustee shall have an
affirmative obligation to take all reasonable actions to collect such expenses
on behalf of and at the expense of the Trust Fund. For purposes of this Section
7.01 and of Section 7.03(b), the Trustee shall not be deemed to have knowledge
of an event which constitutes, or which with the passage of time or notice, or
both, would constitute an Event of Default described in clauses (i)-(xi) of
subsection (a) above unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless notice of any
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event which is in fact such an Event of Default is received by a Responsible
Officer of the Trustee and such notice references the Certificates, the Trust
Fund or this Agreement. SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall be the successor in all respects to the Master
Servicer or the Special Servicer, as the case may be, in its capacity as such
under this Agreement and the transactions set forth or provided for herein and
shall have all (and the former Master Servicer or the Special Servicer, as the
case may be, shall cease to have any) of the responsibilities, duties and
liabilities (except as provided in the next sentence) of the Master Servicer or
the Special Servicer, as the case may be, arising thereafter, including, without
limitation, if the Master Servicer is the resigning or terminated party, the
Master Servicer's obligation to make P&I Advances, including, without
limitation, in connection with any termination of the Master Servicer for an
Event of Default described in clause 7.01(a)(x), the unmade P&I Advances that
gave rise to such Event of Default; provided, that any failure to perform such
duties or responsibilities caused by the Master Servicer's or the Special
Servicer's, as the case may be, failure to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Notwithstanding anything contrary in this Agreement, the Trustee
shall in no event be held responsible or liable with respect to any of the
representations and warranties of the resigning or terminated party (other than
the Trustee) or for any losses incurred by such resigning or terminated party
pursuant to Section 3.06 hereunder nor shall the Trustee be required to purchase
any Mortgage Loan hereunder. As compensation therefor, the Trustee shall be
entitled to all fees and other compensation that accrue after the Trustee's
succession which the resigning or terminated party would have been entitled to
if the resigning or terminated party had continued to act hereunder (other than
Recovery Fees payable to the terminated Special Servicer pursuant to Section
7.01(c) and any amounts payable to the Master Servicer pursuant to the last
sentence of Section 3.11(a)). Notwithstanding the above, the Trustee may, if it
shall be unwilling in its sole discretion to so act as either Master Servicer or
Special Servicer, as the case may be, or shall, if it is unable to so act as
either Master Servicer or Special Servicer, as the case may be, if the Trustee
is not approved as a Master Servicer or a Special Servicer, as the case may be,
by any of the Rating Agencies or if the Holders of Certificates entitled to at
least 51% of the Voting Rights so request in writing to the Trustee, promptly
appoint, subject to the approval of each of the Rating Agencies (as evidenced by
written confirmation therefrom to the effect that the appointment of such
institution would not cause the qualification, downgrading or withdrawal of the
then current rating on any Class of Certificates) or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution that meets the requirements of Section 6.02; provided, however, that
in the case of a resigning or terminated Special Servicer, such appointment
shall be subject to the rights
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of the Holders of Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class to designate a successor pursuant to Section
6.09. Except with respect to an appointment provided below, no appointment of a
successor to the Master Servicer or the Special Servicer hereunder shall be
effective until the assumption of the successor to such party of all its
responsibilities, duties and liabilities under this Agreement. Pending
appointment of a successor to the Master Servicer or the Special Servicer
hereunder, the Trustee shall act in such capacity as hereinabove provided.
Notwithstanding the above, the Trustee shall, if the Master Servicer is the
resigning or terminated party, and the Trustee is prohibited by law or
regulation from making P&I Advances, promptly appoint any established mortgage
loan servicing institution that has a net worth of not less than $15,000,000 and
is otherwise acceptable to each Rating Agency (as evidenced by written
confirmation therefrom to the effect that the appointment of such institution
would not cause the qualification, downgrading or withdrawal of the then current
rating on any Class of Certificates), as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder (including, without limitation,
the obligation to make P&I Advances), which appointment will become effective
immediately. In connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the resigning or terminated party hereunder. Such successor and the
other parties hereto shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has written notice of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders and the
Rating Agencies notice of such occurrence, unless such default shall have been
cured.
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SECTION 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clauses (i), (ii) or (x) of Section 7.01(a) may be waived only by
all of the Certificateholders of the affected Classes. 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. 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 7.04, 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 7.05. 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 7.01, 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 with respect to an Event of Default pursuant to Section
7.01(a)(ix) for which the sole remedy shall be the termination of the Master
Servicer (other than any obligations of the Master Servicer pursuant to Section
7.02) and 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. Except as expressly
provided in Article VIII, under no circumstances shall the rights provided to
the Trustee under this Section 7.05 be construed as a duty or obligation of the
Trustee.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II) to the extent specifically
set forth herein, shall examine them to determine whether they conform to the
requirements of this Agreement to the extent specifically set forth herein. If
any such instrument is found not to conform to the requirements of this
Agreement 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 or 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;
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(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts if it
was required to do so;
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement; and
(iv) The protections, immunities and indemnities afforded to
the Trustee hereunder shall also be available to it in its capacity
as Paying Agent, Authenticating Agent, Certificate Registrar, REMIC
Administrator and Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01.
(i) the Trustee may 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;
(ii) 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;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any investigation
of matters arising hereunder or, except as provided in Section 10.01, to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; the Trustee
shall not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it; provided, however, that nothing
contained herein shall, relieve
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the Trustee of the obligation, upon the occurrence of an Event of Default which
has not been cured, 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;
(iv) 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;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing 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;
(vi) 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 responsible for all
acts and omissions of such agents or attorneys within the scope of their
employment to the same extent as it is responsible for its own actions and
omissions hereunder;
(vii) the Trustee shall not be responsible for any act or omission
of the Master Servicer or the Special Servicer (unless the Trustee is acting as
Master Servicer or the Special Servicer) or the Depositor; and
(viii) Neither the Trustee nor the Certificate Registrar shall have
any obligation or duty to monitor, determine or inquire as to compliance with
any restriction on transfer imposed under Article V under this Agreement or
under applicable law with respect to any transfer of any Certificate or any
interest therein, other than to require delivery of the certification(s) and/or
Opinions of Counsel described in said Article applicable with respect to changes
in registration of record ownership of Certificates in the Certificate Register
and to examine the same to determine substantial compliance with the express
requirements of this Agreement. The Trustee and Certificate Registrar shall have
no liability for transfers, including transfers made through the book-entry
facilities of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in connection
with changes in registration of record ownership in the Certificate Register.
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SECTION 8.03. Trustee Not Liable for Validity or Sufficiency
of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee in Article II and the signature of the
Certificate Registrar and the Authenticating Agent set forth on each outstanding
Certificate, shall be taken as the statements of the Depositor or the Master
Servicer or the Special Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Agreement or of any Certificate (other than
as to the signature of the Trustee set forth thereon) or of any Mortgage Loan 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 8.04. Trustee May Own Certificates.
The Trustee or any agent of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Certificates with the same
rights (except as otherwise provided in the definition of "Certificateholder")
it would have if it were not the Trustee or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification
of Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account, prior to any distributions
to be made therefrom on such date, and pay to itself all earned but unpaid
Trustee Fees, as compensation for all services rendered by the Trustee in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee hereunder. The Trustee Fee shall
accrue from time to time at a rate equal to one-twelfth of the product of (a)
the Trustee Fee Rate and (b) the aggregate Certificate Principal Balance of the
Certificates. The Trustee Fees (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) shall
constitute the Trustee's sole compensation for such services to be rendered by
it.
(b) The Trustee and any director, officer, employee, affiliate,
agent or "control" person within the meaning of the Securities Act of 1933 of
the Trustee shall be
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entitled to be indemnified for and held harmless by the Trust Fund against any
loss, liability or reasonable "out-of-pocket" expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement) arising out of, or
incurred in connection with this Agreement, the Mortgage Loans or the
Certificates ("Trustee Liability"); provided, that neither the Trustee nor any
of the other above specified Persons shall be entitled to indemnification
pursuant to this Section 8.05(b) for (1) any liability specifically required to
be borne by such Persons pursuant to the terms hereof, or (2) any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of the Trustee's obligations and duties hereunder,
or as may arise from a breach of any representation, warranty or covenant of the
Trustee made herein. The provisions of this Section 8.05(b) and of Section
8.05(c) shall survive any resignation or removal of the Trustee and appointment
of a successor trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any other parties on the one
hand and the Trustee on the other in connection with the actions or omissions
which resulted in such Trustee Liability, as well as any other relevant
equitable considerations.
SECTION 8.06. 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 the United States of
America or any State thereof or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
banking 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 Trustee shall also be an entity
with a credit rating of at least "AA" by S&P and "A" by DCR or such other rating
that shall not result in the qualification, downgrading or withdrawal of the
rating or ratings assigned to one or more Classes of the Certificates by any
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 8.07;
provided, that if the Trustee shall cease to be so eligible because its combined
capital and surplus is no longer at least $100,000,000 or its long-term
unsecured debt rating no longer conforms to the requirements of the immediately
preceding sentence, and if the Trustee proposes to the other parties hereto to
enter into an agreement with (and reasonably acceptable to) each of them, and if
in light of such agreement the Trustee's
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continuing to act in such capacity would not (as evidenced in writing by each
Rating Agency) cause any Rating Agency to qualify, downgrade or withdraw any
rating assigned thereby to any Class of Certificates, then upon the execution
and delivery of such agreement the Trustee shall not be required to resign, and
may continue in such capacity, for so long as none of the ratings assigned by
the Rating Agencies to the Certificates is adversely affected thereby. The
corporation or association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Master Servicer, the Special Servicer and
their respective Affiliates.
SECTION 8.07. 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 at their
respective addresses set forth in the Certificate Register. Upon receiving such
notice of resignation, the Master Servicer shall promptly appoint a successor
trustee acceptable to the Depositor by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee, and which appointment of successor trustee will not result, in and of
itself, in a downgrading, withdrawal or qualification of the rating then
assigned by the Rating Agencies to any Class of Certificates as confirmed in
writing by each of the Rating Agencies. A copy of such instrument shall be
delivered to the Depositor, the Special Servicer and the Certificateholders 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 8.06 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, or if the Trustee shall fail, if the Trustee is the Paying Agent
(other than by reason of the failure of either the Master Servicer or the
Special Servicer to timely perform its obligations hereunder or as a result of
other circumstances beyond the Trustee's reasonable control), to timely deliver
any report to be delivered by the Trustee pursuant to Section 4.02 and such
failure shall continue unremedied for a period of five days, or if the Paying
Agent (if different from the Trustee) fails to make distributions required
pursuant to Sections 3.05(b) or 4.01, then the Depositor may remove the Trustee
and appoint a successor trustee, if necessary, acceptable to the Master Servicer
by written instrument, in duplicate, which instrument shall be delivered to the
Trustee so removed and to the successor trustee. A copy of such
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instrument shall be delivered to the Master Servicer, the Special Servicer and
the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time (with or without cause) remove the Trustee and
appoint a successor trustee, if necessary, 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 trustee so appointed. A copy of such instrument shall be
delivered to the Depositor, the Special Servicer and the remaining
Certificateholders by the successor so appointed. In the event that the Trustee
is terminated or removed pursuant to this Section 8.07, all of its rights and
obligations under this Agreement and in and to the Mortgage Loans shall be
terminated, other than any rights or obligations that accrued prior to the date
of such termination or removal (including the right to receive all fees,
expenses and other amounts (including, without limitation, P&I Advances and
accrued interest thereon) accrued or owing to it under this Agreement, with
respect to periods prior to the date of such termination or removal and no
termination without cause shall be effective until the payment of such amounts
to the Trustee).
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special 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 Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a Custodian, which Custodian shall become the agent of the
successor trustee), and the Depositor, the Master Servicer, the Special 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.
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(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
SECTION 8.09. 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 8.06, 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 8.10. 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 8.10, 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 in
respect of the Master Servicer 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 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 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 or the
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Special 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 VIII. 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 cease to exist, 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 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking 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 File and shall not be the Depositor
or any Affiliate of the Depositor. Neither the Master Servicer nor the Special
Servicer shall have any duty to verify that any such Custodian is qualified to
act as such in accordance with the preceding sentence. The Trustee may enter
into agreements to appoint a Custodian which is not the Trustee, provided that,
such agreement: (i) is consistent with this Agreement in all material respects
and requires the Custodian to comply with this Agreement in all material
respects and requires the Custodian to comply with all of the applicable
conditions of this Agreement; (ii) provides that if the Trustee shall for any
reason no longer act in the capacity of Trustee hereunder (including, without
limitation, by reason of an Event of Default), the
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successor trustee or its designee may thereupon assume all of the rights and,
except to the extent they arose prior to the date of assumption, obligations of
the Custodian under such agreement or alternatively, may terminate such
agreement without cause and without payment of any penalty or termination fee;
and (iii) does not permit the Custodian any rights of indemnification that may
be satisfied out of assets of the Trust Fund. 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. The initial Custodian shall be the Trustee. Notwithstanding anything
herein to the contrary, if the Trustee is no longer the Custodian, any provision
or requirement herein requiring notice or any information or documentation to be
provided to the Custodian shall be construed to require that such notice,
information or documents also be provided to the Trustee. Any Custodian
hereunder (other than the Trustee) shall at all times maintain a fidelity bond
and errors and omissions policy in amounts customary for custodians performing
duties similar to those set forth in this Agreement.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents, which
shall be authorized to act on behalf of the Trustee in authenticating
Certificates. Each Authenticating Agent must be organized and doing business
under the laws of the United States of America or of any State, authorized under
such laws to do a trust business, have a combined capital and surplus of at
least $15,000,000, and be subject to supervision or examination by federal or
state authorities. Each Authenticating Agent shall be subject to the same
obligations, standard of care, protection and indemnities as would be imposed
on, or would protect, the Trustee hereunder. The initial Authenticating Agent
shall be the Trustee. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Authenticating Agent, any provision or requirement
herein requiring notice or any information or documentation to be provided to
the Authenticating Agent shall be construed to require that such notice,
information or documentation also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, the Master Servicer, the Certificate Registrar
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and the Depositor. Upon receiving a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 8.12, the Trustee may
appoint a successor Authenticating Agent, in which case the Trustee shall given
written notice of such appointment to the Master Servicer, the Certificate
Registrar and the Depositor and shall mail notice of such appointment to all
Holders of Certificates; provided, however, that no successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
8.12. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent. No Authenticating Agent shall have responsibility
or liability for any action taken by it as such at the direction of the Trustee.
SECTION 8.13. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account in
trust for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to the Certificateholders. All funds remitted by the Trustee or
the Master Servicer to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date and
any amounts not so paid shall be returned on such Distribution Date to the
Trustee or the Master Servicer, as applicable. If the Paying Agent is not the
Trustee or the Master Servicer, the Trustee or the Master Servicer shall remit
to the Paying Agent on the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall have
a rating of at least "A" (or its equivalent) by each of Standard & Poor's and
DCR, or such lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies. The Trustee may enter into agreements to appoint
a Paying Agent which is not the Trustee, provided that, such agreement: (i) is
consistent with this Agreement in all material respects and requires the Paying
Agent to comply with this Agreement in all material respects and requires the
Paying Agent to comply with all of the applicable conditions of this Agreement;
(ii) provides that if the Trustee shall for any reason no longer act in the
capacity of Trustee hereunder (including, without limitation, by reason of an
Event of Default), the successor trustee or its designee may thereupon assume
all of the rights and, except to the extent they arose prior to the date of
assumption, obligations of the Paying Agent under such agreement or
alternatively, may terminate such agreement without cause and without payment of
any penalty or termination fee; and (iii) does not permit the Paying Agent any
rights of indemnification that may be satisfied out of
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assets of the Trust Fund. The appointment of any Paying Agent shall not relieve
the Trustee from any of its obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Paying Agent to the extent such
Paying Agent would have been responsible pursuant to the terms hereof. The
initial Paying Agent shall be the Trustee. Notwithstanding anything herein to
the contrary, if the Trustee is no longer the Authenticating Agent, any
provision or requirement herein requiring notice or any information to be
provided to the Authenticating Agent shall be construed to require that such
notice, information or documentation also be provided to the Trustee.
SECTION 8.14. Appointment of REMIC Administrators.
(a) The Trustee may appoint one or more REMIC Administrators, which
shall be authorized to act on behalf of the Trustee in performing the functions
set forth in Sections 3.17 and 10.01 herein. Each REMIC Administrator must be
acceptable to the Trustee and must be organized and doing business under the
laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer and the Depositor. The Trustee may at any time terminate the agency of
any REMIC Administrator by giving written notice of termination to such REMIC
Administrator, the Master Servicer, the Certificate Registrar and the Depositor.
Upon receiving a notice of resignation or upon such a termination, or in case at
any time any REMIC Administrator shall cease to be eligible in accordance with
the provisions of this Section 8.14, the Trustee may appoint a successor REMIC
Administrator, in which case the Trustee shall given written notice of such
appointment to the Master Servicer and the Depositor and shall mail notice of
such appointment to all Holders of Certificates; provided, however, that no
successor REMIC Administrator shall be appointed unless eligible under the
provisions of this Section 8.14. Any successor REMIC Administrator upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as REMIC Administrator. No REMIC Administrator
shall have responsibility or liability for any action taken by it as such at the
direction of the Trustee.
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SECTION 8.15. Access to Certain Information.
The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, any Certificateholder and to the OTS, the FDIC and
any other banking or insurance regulatory authority that may exercise authority
over any Certificateholder, access to any documentation regarding the Mortgage
Loans within its control that may be required to be provided by this Agreement
or by applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it.
In connection with providing access to or copies of the
documentation described in the preceding paragraph, the Trustee shall require:
(a) in the case of Certificate Owners, a confirmation executed by the requesting
Person (in a form reasonably acceptable to the Trustee) generally to the effect
that such Person is a beneficial holder of Book-Entry Certificates and 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 an interest therein, confirmation executed by the
requesting Person (in a form reasonably acceptable to the Trustee) 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 will otherwise keep such information
confidential. The Holders of the Certificates, by their acceptance thereof, will
be deemed to have agreed to keep such information confidential (except that any
Holder may provide any 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 such ownership interest or
prospective ownership interest and agrees to keep such information
confidential).
SECTION 8.16. Representations, Warranties and Covenants of
Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States.
(ii) The execution and delivery of this Agreement and the Meidinger
Tower Agreement by the Trustee, and the performance and compliance with the
terms of this Agreement and the Meidinger Tower Agreement by the Trustee, will
not violate
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the Trustee's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in a breach of, any material agreement or other material instrument to
which it is a party or by which it is bound.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee or
separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority to
carry on its business as now being conducted and to enter into and consummate
all transactions contemplated by this Agreement and the Meidinger Tower
Agreement, has duly authorized the execution, delivery and performance of this
Agreement and the Meidinger Tower Agreement, and has duly executed and delivered
this Agreement and the Meidinger Tower Agreement.
(iv) This Agreement and the Meidinger Tower Agreement, assuming due
authorization, execution and delivery by the other parties hereto, constitutes a
valid 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 the rights of creditors of banks, 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 or the Meidinger Tower Agreement and its performance
and compliance with the terms of this Agreement or the Meidinger Tower 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 the
ability of the Trustee to perform its obligations under this Agreement or the
Meidinger Tower Agreement.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to the
Trustee, would prohibit the Trustee from entering into this Agreement or the
Meidinger Tower Agreement or, in the Trustee's good faith and reasonable
judgment, is likely to materially and adversely affect the ability of the
Trustee to perform its obligations under this Agreement or the Meidinger Tower
Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and performance
by the Trustee of or compliance by the Trustee with this Agreement or the
Meidinger Tower Agreement or the consummation of the transactions contemplated
by this Agreement and the Meidinger Tower Agreement has been obtained and is
effective.
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(b) The Trustee covenants that by August 31, 1999, any custom-made
software or hardware designed or purchased or licensed by the Trustee and used
by the Trustee in the course of the operation or management of, or the
compiling, reporting or generation of data required by this Agreement or the
Meidinger Tower Agreement will not contain any deficiency (x) in the ability of
such software or hardware to identify correctly or perform calculations or other
processing with respect to dates after August 31, 1999 or (y) that would cause
such software or hardware to be fit no longer for the purpose for which it was
intended by reason of the changing of the date from 1999 to 2000.
SECTION 8.17. Reports to the Securities and Exchange
Commission; Available Information.
The Master Servicer shall prepare for filing, and the Master
Servicer shall execute, on behalf of the Trust Fund, and file with the
Securities and Exchange Commission, any and all reports, statements and
information respecting the Trust Fund and/or the Certificates required to be
filed on behalf of the Trust Fund under the Exchange Act. Upon such filing with
the Securities and Exchange Commission, the Master Servicer shall promptly
deliver to the Depositor and the Trustee and the Controlling Class
Representative a copy of any such executed report, statement or information. The
Depositor shall promptly file, and exercise its reasonable best efforts to
obtain a favorable response to, no-action requests to, or requests for other
appropriate exemptive relief from, the Securities and Exchange Commission
regarding the usual and customary exemption from certain reporting requirements
granted to issuers of securities similar to the Certificates. The Trustee shall
have no responsibility to determine whether or not any filing may be required
and shall not have any responsibility to review or confirm in any way the
accuracy or the sufficiency of the contents of any such filing.
SECTION 8.18. Grantor Trust Administration.
(a) The Trustee shall treat the Grantor Trust, for tax return
preparation purposes, as a grantor trust under the Code and, if necessary, under
applicable state law and will file appropriate federal or state Tax Returns for
each taxable year ending on or after the last day of the calendar year in which
the Meidinger Senior Interest and the Grantor Trust Certificate are issued.
(b) The Trustee shall pay out of its own funds any and all routine
tax administration expenses of the Trust incurred with respect to the Grantor
Trust (but not including any professional fees or expenses related to audits or
any administrative or judicial proceedings with respect to the Grantor Trust
that involve the Internal Revenue Service or state tax authorities which
extraordinary expenses shall be payable or reimbursable to the Trustee from the
collection account established under the Meidinger Tower Agreement unless
otherwise provided in Section 8.18(e) or 8.18(f).
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(c) The Trustee shall prepare, sign and file all of the Tax Returns
in respect of the Grantor Trust. The expenses of preparing and filing such
returns shall be borne by the Trustee without any right of reimbursement
therefor. The other parties hereto shall provide on a timely basis to the
Trustee or its designee such information with respect to the Grantor Trust as is
in its possession and reasonably requested by the Trustee to enable it to
perform its obligations under this Section 8.18. Without limiting the generality
of the foregoing, the Depositor, within ten days following the Trustee's request
therefor, shall provide in writing to the Trustee such information as is
reasonably requested by the Trustee for tax purposes, and the Trustee's duty to
perform its reporting and other tax compliance obligations under this Section
8.18 shall be subject to the condition that it receives from the Depositor such
information possessed by the Depositor that is necessary to permit the Trustee
to perform such obligations.
(d) The Trustee shall perform on behalf of the Grantor Trust all
reporting and other tax compliance duties that are required in respect thereof
under the Code, the Grantor Trust provisions or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority.
(e) The Trustee shall perform its duties hereunder so as to maintain
the status of the Grantor Trust as a grantor trust under the Grantor Trust
Provisions (and the Master Servicer shall assist the Trustee to the extent
reasonably requested by the Trustee and to the extent of information within the
Servicer's possession or control). Neither the Master Servicer nor the Trustee
shall knowingly take (or cause the Grantor Trust to take) any action or fail to
take (or fail to cause to be taken) any action that, under the Grantor Trust
Provisions, if taken or not taken, as the case may be, could endanger the status
of the Grantor Trust as a grantor trust under the Grantor Trust Provisions (any
such endangerment of grantor trust status, an "Adverse Grantor Trust Event"),
unless the Trustee has obtained or received an Opinion of Counsel (at the
expense of the party requesting such action or payable out of the Collection
Account if the Trustee seeks to take such action or to refrain from taking any
action for the benefit of the Holders) to the effect that the contemplated
action will not result in an Adverse Grantor Trust Event. None of the other
parties hereto shall take any action or fail to take any action (whether or not
authorized hereunder) as to which the Trustee has advised it in writing that the
Trustee has received or obtained an opinion of counsel to the effect that an
Adverse Grantor Trust Event could result from such action or failure to act. In
addition, prior to taking any action with respect to the Grantor Trust, or
causing the Trust to take any action, that is not expressly permitted under the
terms of this Agreement, the Master Servicer shall consult with the Trustee or
its designee, in writing, with respect to whether such action could cause an
Adverse Grantor Trust Event to occur. The Trustee may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not permitted by this Agreement, but in no event at
the cost or expense of the Trust Fund or the Trustee.
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(f) If any tax is imposed on the Grantor Trust, such tax, together
with all incidental costs and expenses (including, without limitation, penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the
Trustee, if such tax arises out of or results from a breach by the Trustee of
any of its obligations under this Section 8.18; (ii) the Master Servicer, if
such tax arises out of or results from a breach by the Master Servicer of any of
its obligations under the Meidinger Tower Agreement or this Section 8.18; or
(iii) the Grantor Trust in all other instances.
(g) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to the Grantor Trust on a calendar year and on an
accrual basis.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and 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 Paying Agent on behalf of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth) shall terminate upon
payment (or provision for payment) (i) to the Certificateholders of all amounts
held by or on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer of all Mortgage Loans and each REO Property remaining in
REMIC I at a price equal to (1) the aggregate Purchase Price of all the Mortgage
Loans included in REMIC I, plus (2) the appraised value of each REO Property, if
any, included in REMIC I, such appraisal to be conducted by an Independent
Appraiser selected by the Master Servicer and approved by the Trustee, minus (3)
if the purchaser is the Master Servicer, the aggregate amount of unreimbursed
Advances made by the Master Servicer, together with any interest accrued and
payable to the Master Servicer in respect of unreimbursed Advances in accordance
with Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees remaining
outstanding (which items shall be deemed to have been paid or reimbursed to the
Master Servicer in connection with such purchase), and (B) the final payment or
other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in REMIC I, and (ii) to the Trustee, the Master
Servicer, the Special Servicer and the officers, directors, employees and agents
of each of them of all amounts which may have become due and owing to any of
them hereunder; provided, however, that in no event shall the trust created
hereby continue beyond the earlier of (x) 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, or (y) the Rated Final Distribution Date.
The Majority Subordinate Certificateholder, the Depositor, the
Master Servicer or the Special Servicer, in that order, may at its option elect
to purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
as contemplated by clause (i) of the preceding paragraph by giving written
notice to the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the aggregate Stated
Principal Balance of the Mortgage Pool at the time of such election is less than
1% of the aggregate Cut-Off Date Balance of the Mortgage Pool set forth in the
Preliminary Statement. If the Trust Fund is to be terminated in connection with
the Majority Subordinate Certificateholder's, the Master Servicer's, the Special
Servicer's or the Depositor's purchase of all of the Mortgage Loans and each REO
Property
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remaining in REMIC I, the Majority Subordinate Certificateholder, the Master
Servicer, the Special Servicer or the Depositor, as applicable, shall deliver to
the Paying Agent for deposit in the Distribution Account not later than the P&I
Advance Date 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. In addition, the Master Servicer shall
transfer to the Distribution Account all amounts required to be transferred
thereto on such P&I Advance Date from the Certificate Account pursuant to the
first paragraph of Section 3.04(b), together with any other amounts on deposit
in the Certificate Account that would otherwise be held for future distribution.
Upon written confirmation that such final deposit has been made, the Trustee
shall release or cause to be released to the Majority Subordinate
Certificateholder, the Master Servicer, the Special Servicer or the Depositor,
as applicable, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
the Majority Subordinate Certificateholder, the Master Servicer, the Special
Servicer or the Depositor, as applicable, as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties to the Majority Subordinate
Certificateholder, the Master Servicer, the Special Servicer or the Depositor
(or their respective designees), as applicable. Any transfer of Mortgage Loans
to the Depositor pursuant to this paragraph shall be on a servicing-released
basis.
The foregoing provisions of this Section 9.01 notwithstanding, in
the event that (i) any of the Majority Subordinate Certificateholder, the Master
Servicer, the Special Servicer or the Depositor elects to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I as contemplated in the
preceding two paragraphs, and (ii) the Meidinger Senior Interest is included
among such assets, such party shall only be entitled to purchase, in the case of
the Meidinger Tower Loan, the Meidinger Senior Interest and shall enter into a
participation and servicing agreement with the Holder of the Grantor Trust
Certificate and a mutually acceptable servicer and paying agent substantially
similar to the Participation Agreement (as such term is defined in the Meidinger
Tower Agreement) that the Meidinger Tower Loan was subject to prior to the
Meidinger Senior Interest becoming an asset of REMIC I, whereby the Holder of
the Grantor Trust Certificate shall receive in exchange for the Grantor Trust
Certificate a certificate, representing an equivalent subordinate interest in
the Meidinger Tower Loan, issued under such new participation and servicing
agreement.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (a) if such notice is given in connection
with the Majority Subordinate Certificateholder's, the Master Servicer's, the
Special Servicer's or Depositor's purchase of the Mortgage Loans and each REO
Property remaining in REMIC I, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates or (b) otherwise during the month of such final distribution on
or before the Determination Date in such month to the extent a Responsible
Officer of the Trustee has knowledge of such termination,
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but in any event not less than five days prior to such final Distribution Date,
in each case specifying (i) the Distribution Date upon which the Trust Fund will
terminate and final payment of the Certificates will be made, (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 offices of the Certificate
Registrar or such other location therein designated. The Trustee shall give such
notice to the Majority Subordinate Certificateholder, the Master Servicer, the
Special Servicer and the Depositor at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Distribution Account that are allocable to
payments on the Class of Certificates so presented and surrendered. Amounts on
deposit in the Distribution Account as of the final Distribution Date, exclusive
of any portion thereof that would be payable to any Person in accordance with
clauses (ii) through (viii) of Section 3.05(b), and further exclusive of any
portion thereof that represents Prepayment Premiums, shall be allocated in the
following order of priority, in each case to the extent of remaining available
funds:
(i) to distributions of interest to the Holders of the Senior
Certificates in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each Class of Senior
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the Class A-1,
Class A-2 and Class A-3 Certificates, pro rata, in an amount (not to
exceed the respective Class Principal Balances of such Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Principal Distribution Amount for such Distribution Date;
(iii) to distributions to the Holders of the Class A-1, Class A-2
and Class A-3 Certificates, pro rata, in accordance with the outstanding
Class Principal Balances of each such Classes of Certificates in an amount
equal to, and in reimbursement of, all Realized Losses and Additional
Trust Fund Expenses, if any, previously allocated to such Classes of
Certificates and not previously reimbursed, plus interest on any such
Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
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(iv) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(v) after the Class Principal Balance of each of the Class A-1,
Class A-2 and Class A-3 Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class B Certificates, in
an amount (not to exceed the then outstanding Class Principal Balance of
such Class of Certificates) equal to the Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 9.01);
(vi) to distributions to the Holders of the Class B Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
B Certificates and not previously reimbursed, plus interest on any such
Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
(vii) to distributions of interest to the Holders of the Class C
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date, and,
to the extent not previously paid, for all prior Distribution Dates;
(viii) after the Class Principal Balance of each of the Class A-1,
Class A-2, Class A-3 and Class B Certificates has been reduced to zero, to
distributions of principal to the Holders of the Class C Certificates, in
an amount (not to exceed the then outstanding Class Principal Balance of
such Class of Certificates) equal to the Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 9.01);
(ix) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
C Certificates and not previously reimbursed, plus interest on any such
Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
(x) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class
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D Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xi) after the Class Principal Balance of each of the Class A-1,
Class A-2, Class A-3, Class B and Class C Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class D
Certificates, in an amount (not to exceed the then outstanding Class
Principal Balance of such Class of Certificates) equal to the Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to any prior clause of this Section 9.01);
(xii) to distributions to the Holders of the Class D Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
D Certificates and not previously reimbursed, plus interest on any such
Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
(xiii) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class E Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xiv) after the Class Principal Balance of each of the Class A-1,
Class A-2, Class A-3, Class B, Class C and Class D Certificates has been
reduced to zero, to distributions of principal to the Holders of the Class
E Certificates, in an amount (not to exceed the then outstanding Class
Principal Balance of such Class of Certificates) equal to the Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to any prior clause of this Section 9.01);
(xv) to distributions to the Holders of the Class E Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
E Certificates and not previously reimbursed, plus interest on any such
Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
(xvi) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class
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F Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xvii) after the Class Principal Balance of each of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D and Class E Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class F Certificates, in an amount (not to exceed the then outstanding
Class Principal Balance of such Class of Certificates) equal to the
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Certificates pursuant to any prior clause of this
Section 9.01);
(xviii) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
F Certificates and not previously reimbursed, plus interest on any such
Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
(xix) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class G Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xx) after the Class Principal Balance of each of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E and Class F
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class G Certificates, in an amount (not to exceed the
then outstanding Class Principal Balance of such Class of Certificates)
equal to the Principal Distribution Amount for such Distribution Date (net
of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of
this Section 9.01);
(xxi) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
G Certificates and not previously reimbursed, plus interest on any such
Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
(xxii) to distributions of interest to the Holders of the Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect
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of the Class H Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(xxiii) after the Class Principal Balance of each of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F and
Class G Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class H Certificates, in an amount (not to
exceed the then outstanding Class Principal Balance of such Class of
Certificates) equal to the Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 9.01);
(xxiv) to distributions to the Holders of the Class H Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
H Certificates and not previously reimbursed, plus interest on any such
Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
(xxv) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class J Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxvi) after the Class Principal Balance of each of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class J Certificates, in an amount (not to
exceed the then outstanding Class Principal Balance of such Class of
Certificates) equal to the Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 9.01);
(xxvii) to distributions to the Holders of the Class J Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
J Certificates and not previously reimbursed, plus interest on any such
Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
(xxviii) to distributions of interest to the Holders of the Class K
Certificates, in an amount equal to all Distributable Certificate Interest
in respect
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of the Class K Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(xxix) after the Class Principal Balance of each of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class E, Class F, Class G, Class H
and Class J Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class K Certificates, in an amount (not to
exceed the then outstanding Class Principal Balance of such Class of
Certificates) equal to the Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clauses of this Section 9.01);
(xxx) to distributions to the Holders of the Class K Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
K Certificates and not previously reimbursed, plus interest on any such
Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
(xxxi) to distributions of interest to the Holders of the Class L
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class L Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxii) after the Class Principal Balance of each of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J and Class K Certificates has been reduced to zero, to
distributions of principal to the Holders of the Class L Certificates, in
an amount (not to exceed the then outstanding Class Principal Balance of
such Class of Certificates) equal to the Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clauses of this Section 9.01);
(xxxiii) to distributions to the Holders of the Class L
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class L Certificates and not previously reimbursed, plus interest on
any such Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
(xxxiv) to distributions of interest to the Holders of the Class M
Certificates, in an amount equal to all Distributable Certificate Interest
in respect
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of the Class M Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(xxxv) after the Class Principal Balance of each of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K and Class L Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class M
Certificates, in an amount (not to exceed the then outstanding Class
Principal Balance of such Class of Certificates equal to the Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to any prior clauses of this Section 9.01);
(xxxvi) to distributions to the Holders of the Class M Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
M Certificates and not previously reimbursed, plus interest on any such
Realized Losses or Additional Trust Fund Expenses, accrued at the
applicable Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class; and
(xxxvii) to distributions to the Holders of the Class R-I
Certificates, in an amount equal to the balance, if any, of the Available
Distribution Amount for such Distribution Date remaining after the
distributions to be made on such Distribution Date pursuant
to clauses (i) through (xxxvi) above.
Any Prepayment Premiums on deposit in the Certificate Account as of
the final Distribution Date shall be distributed among the Holders of the
Regular Certificates, in accordance with Section 4.01(b). Any funds not
distributed to any Holder or Holders of Certificates of any 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 uninvested in
trust and credited to the account or accounts of the appropriate non-tendering
Holder or Holders. If any Certificates as to which notice has been given
pursuant to this Section 9.01 shall not have been surrendered for cancellation
within six months after the time specified in such notice, the Paying Agent
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
Paying Agent, directly or through an agent, shall take such reasonable steps to
contact the remaining non-tendering Certificateholders concerning the 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 former Holder on any amount held in trust
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hereunder. If, within one year after the second notice, all of the Certificates
shall not have been surrendered for cancellation, the Class R-I
Certificateholder shall be entitled to all unclaimed funds and other assets
which remain subject thereto (to the extent it is not required to dispose of
such unclaimed funds and assets otherwise in accordance with applicable state
escheatment law).
SECTION 9.02. Additional Termination Requirements.
(a) If the Majority Subordinate Certificateholder, the Depositor,
the Master Servicer or the Special Servicer purchases all of the Mortgage Loans
and each REO Property remaining in REMIC I as provided in Section 9.01, the
Trust Fund (and, accordingly, REMIC I, REMIC II and REMIC III) shall be
terminated in accordance with the following additional requirements, unless the
Majority Subordinate Certificateholder, the Master Servicer, the Special
Servicer or the Depositor, as applicable, obtains at its own expense and
delivers to the Trustee and the REMIC Administrator and, in the case of the
Majority Subordinate Certificateholder, the Depositor or the Special Servicer,
to the Trustee and the Master Servicer, an Opinion of Counsel, addressed to the
Trustee, the REMIC Administrator and the Master Servicer, to the effect that the
failure of the Trust Fund to comply with the requirements of this Section 9.02
will not result in the imposition of taxes on "prohibited transactions" of REMIC
I, REMIC II or REMIC III as defined in Section 860F of the Code or cause REMIC
I, REMIC II or REMIC III to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each of REMIC I, REMIC II and REMIC III pursuant to
Treasury Regulations Section 1.860F-1 and shall satisfy all
requirements of a qualified liquidation under Section 860F of the
Code and any regulations thereunder as set forth in an Opinion of
Counsel obtained by the purchasing party at the expense of such
purchasing party;
(ii) during such 90-day liquidation period and at or prior to
the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I to the Majority
Subordinate Certificateholder, the Master Servicer, the Special
Servicer or the Depositor, as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Paying Agent shall distribute or credit, or cause
to be distributed or credited, to the Certificateholders in
accordance with Section 9.01 all cash on hand (other than cash
retained to meet claims), and each of REMIC I, REMIC II and REMIC
III shall terminate at that time.
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(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the REMIC Administrator to specify the 90-day liquidation
period for each of REMIC I, REMIC II and REMIC III, which authorization shall be
binding upon all successor Certificateholders.
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ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I,
REMIC II and REMIC III as a REMIC under the Code and, if necessary, under
applicable state law. Such election will be made on Form 1066 or other
appropriate federal or state Tax Returns for the taxable year ending on the last
day of the calendar year in which the Certificates are issued.
(b) The REMIC I Regular Interests, the REMIC II Regular Interests
and the Regular Certificates (or in the case of the Class X Certificates, each
of its Components) are hereby designated as "regular interests" (within the
meaning of Section 860G(a)(1) of the Code) in REMIC I, REMIC II and REMIC III,
respectively. The Class R-I Certificates, the Class R-II Certificates and the
Class R-III Certificates are hereby designated as the single class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code) in REMIC I,
REMIC II and REMIC III, respectively. None of the Depositor, the Master
Servicer, the Special Servicer or the Trustee shall (to the extent within its
control) permit the creation of any other "interests" in REMIC I, REMIC II or
REMIC III (within the meaning of Treasury Regulations Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
REMIC I, REMIC II and REMIC III within the meaning of Section 860G(a)(9) of the
Code.
(d) Each Plurality Residual Certificateholder as to the applicable
taxable year is hereby designated as the Tax Matters Person of each of REMIC I,
REMIC II and REMIC III, and shall act on behalf of the related REMIC in relation
to any tax matter or controversy and shall represent the related REMIC in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority; provided, that the REMIC Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each of REMIC I, REMIC II and REMIC III) as agent and
attorney-in-fact for the Tax Matters Person for each of REMIC I, REMIC II and
REMIC III in the performance of its duties as such.
(e) Solely for purposes of Treasury Regulations Sections
1.860G-1(a)(4)(iii), the Distribution Date in September 2030, has been
designated the "latest possible maturity date" of each REMIC I Regular Interest,
each REMIC II Regular Interest and each Class of Regular Certificates (or in the
case of the Class X Certificates, each of its Components).
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(f) The Trustee shall pay any and all ordinary tax-related expenses
of any of REMIC I, REMIC II or REMIC III from the Trust Fund. Any taxes,
penalties, interest or extraordinary expenses including, but not limited to, any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to any of REMIC I, REMIC II or REMIC III that
involve the Internal Revenue Service or state or local taxing authorities will
(to the extent not payable by a specified Person pursuant to Section 10.01(j))
be expenses of the Trust Fund.
(g) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the REMIC
Administrator shall prepare, sign and file all of the other Tax Returns in
respect of REMIC I, REMIC II and REMIC III. The ordinary expenses of preparing
and filing such returns shall be borne by the REMIC Administrator without any
right of reimbursement therefor. The other parties hereto shall provide on a
timely basis to the REMIC Administrator or its designee such information with
respect to each of REMIC I, REMIC II and REMIC III as is in its possession and
reasonably requested by the REMIC Administrator to enable it to perform its
obligations under this Article. Without limiting the generality of the
foregoing, the Depositor, within ten days following the REMIC Administrator's
request therefor, shall provide in writing to the REMIC Administrator such
information as is reasonably requested by the REMIC Administrator for tax
purposes, as to the valuations and issue prices of the Certificates, and the
REMIC Administrator's duty to perform its reporting and other tax compliance
obligations under this Article X shall be subject to the condition that it
receives from the Depositor such information possessed by the Depositor that is
necessary to permit the Trustee to perform such obligations.
(h) The REMIC Administrator shall perform on behalf of each of REMIC
I, REMIC II and REMIC III all reporting and other tax compliance duties that are
the responsibility of each such REMIC under the Code, the REMIC Provisions or
other compliance guidance issued by the Internal Revenue Service or, with
respect to State and Local Taxes, any state or local taxing authority. Included
among such duties, the REMIC Administrator shall provide to: (i) any Transferor
of a Residual Certificate, such information as is necessary for the application
of any tax relating to the transfer of a Residual Certificate to any Person who
is not a Permitted Transferee; (ii) the Certificateholders, such information or
reports as are required by the Code or the REMIC Provisions, including, without
limitation, reports relating to interest, original issue discount and market
discount or premium (using the Prepayment Assumption as required hereunder); and
(iii) 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.
(i) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of each of REMIC I, REMIC II and REMIC III as a REMIC
under
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the REMIC Provisions (and the Trustee, the Master Servicer and the Special
Servicer shall assist the REMIC Administrator to the extent reasonably requested
by the REMIC Administrator and to the extent of information within the
Trustee's, the Master Servicer's or the Special Servicer's possession or
control). None of the REMIC Administrator, Master Servicer, the Special
Servicer, the REMIC Administrator or the Trustee shall knowingly take (or cause
any 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 that, under the REMIC Provisions, if taken
or not taken, as the case may be, could (i) endanger the status of any of REMIC
I, REMIC II or REMIC III as a REMIC, or (ii) except as provided in Section
3.17(a), result in the imposition of a tax upon any of 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, the tax on contributions to a REMIC
set forth in Section 860G(d) of the Code or the tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code) (any such
endangerment or imposition, except as provided in Section 3.17(a)(iii), an
"Adverse REMIC Event"), unless the REMIC Administrator has obtained or received
an Opinion of Counsel (at the expense of the party requesting such action or at
the expense of the Trust Fund if the REMIC Administrator seeks to take such
action or to refrain from acting for the benefit of the Certificateholders) to
the effect that the contemplated action will not result in an Adverse REMIC
Event. The REMIC Administrator shall not take any action that it is advised by
the Master Servicer or Special Servicer, as applicable could cause an Adverse
REMIC Event. In addition, prior to taking any action with respect to REMIC I,
REMIC II or REMIC III, or causing any of REMIC I, REMIC II or REMIC III to take
any action, that is not expressly permitted under the terms of this Agreement,
the Master Servicer and the Special Servicer shall consult with the REMIC
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur. Neither the Master Servicer nor the
Special Servicer shall take any such action or cause any of REMIC I, REMIC II or
REMIC III to take any such action as to which the REMIC Administrator has
advised it in writing that an Adverse REMIC Event could occur, and neither the
Master Servicer nor the Special Servicer shall have any liability hereunder for
any action taken by it in accordance with the written instruments of the REMIC
Administrator. The REMIC Administrator may consult with counsel to make such
written advice, and the cost of same shall be borne by the party seeking to take
the action not expressly permitted by this Agreement, but in no event at the
cost or expense of the Trust Fund, the REMIC Administrator or the Trustee. At
all times as may be required by the Code, the REMIC Administrator shall make
reasonable efforts to ensure that substantially all of the assets of REMIC I,
REMIC II and REMIC III will consist of "qualified mortgages" as defined in
Section 860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(j) If any tax is imposed on any of REMIC I, REMIC II or REMIC III,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I, REMIC II or
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REMIC III after the Startup Day pursuant to Section 860G(d) of the Code, and any
other tax imposed by the Code or any applicable provisions of State or Local Tax
laws (other than any tax permitted to be incurred by the Special Servicer
pursuant to Section 3.17(a)), such tax, together with all incidental costs and
expenses (including, without limitation, penalties and reasonable attorneys'
fees), shall be charged to and paid by: (i) the REMIC Administrator, if such tax
arises out of or results from a breach by the REMIC Administrator of any of its
obligations under this Article X provided that no liability shall be imposed
upon the REMIC Administrator under this clause if another party has
responsibility for payment of such tax under clauses (ii) - (vi) of this
Section; (ii) the Special Servicer, if such tax arises out of or results from a
breach by the Special Servicer of any of its obligations under Article III or
this Article X; (iii) the Master Servicer, if such tax arises out of or results
from a breach by the Master Servicer of any of its obligations under Article III
or this Article X; (iv) the Trustee, if such tax arises out of or results from a
breach by the Trustee of any of its obligations under this Article X; (v) the
Depositor, if such tax was imposed due to the fact that any of the Mortgage
Loans did not, at the time of their transfer to the REMIC I, constitute a
"qualified mortgage" as defined in Section 860G(a)(3) of the Code; or (vi) the
Trust Fund in all other instances. Any tax permitted to be incurred by the
Special Servicer pursuant to Section 3.17(a)(iii) shall be charged to and paid
by the Trust Fund. Any such amounts payable by the Trust Fund shall be paid by
the Paying Agent upon the written direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account in reduction of the Available
Distribution Amount pursuant to Section 3.05(b).
(k) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to each of REMIC I, REMIC II and REMIC
III on a calendar year and on an accrual basis.
(1) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
REMIC I, REMIC II or REMIC III unless it shall have received an Opinion of
Counsel (at the expense of the party seeking to cause such contribution and in
no event at the expense of the Trust Fund or the Trustee) to the effect that the
inclusion of such assets in such REMIC will not cause: (i) such REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (ii)
the imposition of any tax on such REMIC under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the foreclosure of a Mortgage Loan, including, but not
limited to, the sale or other disposition of a Mortgaged Property acquired by
deed in lieu of foreclosure, (B) the bankruptcy of REMIC I, REMIC II or REMIC
III, (C) the termination of REMIC I, REMIC II and REMIC III pursuant to Article
IX of this Agreement, or (D) a purchase of Mortgage Loans pursuant to or as
contemplated by Article II or III of this Agreement);
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(ii) the sale or disposition of any investments in the Certificate Account, the
Distribution Account, the Reserve Accounts or the REO Account for gain; or (iii)
the acquisition of any assets for REMIC I, REMIC II or REMIC III (other than (1)
a Mortgaged Property acquired through foreclosure, deed in lieu of foreclosure
or otherwise in respect of a defaulted Mortgage Loan, (2) a Qualified Substitute
Mortgage Loan pursuant to Article II hereof and (3) Permitted Investments
acquired in connection with the investment of funds in the Certificate Account,
the Distribution Account or the REO Account); in any event unless it has
received an Opinion of Counsel (at the expense of the party seeking to cause
such sale, disposition, or acquisition but in no event at the expense of the
Trust Fund or the Trustee) to the effect that such sale, disposition, or
acquisition will not cause: (x) REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (y) the
imposition of any tax on REMIC I, REMIC II or REMIC III under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(n) Except in connection with Section 3.17(a)(iii), none of the
Trustee, the Depositor, the Master Servicer and the Special Servicer 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 it is within its control,
permit REMIC I, REMIC II or REMIC III to receive any 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.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of 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, modify or supplement any provision herein which may
be inconsistent with any other provision herein, in the Prospectus or in the
Prospectus Supplement, (iii) to add 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 Master
Servicer, the Special Servicer and 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 such proposed action which, if made effective, would
apply retroactively to any of the REMICs created hereunder 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 any such REMIC;
provided, that such action (except any amendment described in clause (v) above)
shall not, as evidenced by an Opinion of Counsel obtained by or delivered to the
Master Servicer, the Special Servicer and the Trustee (which opinion, insofar as
economic issues involving a Class of Certificates rated by a Rating Agency are
concerned, may rely upon the assurance of the Rating Agencies described below),
adversely affect in any material respect the interests of any Certificateholder;
and provided further that the Master Servicer, the Special Servicer and the
Trustee shall have first obtained from each Rating Agency written assurance that
such amendment will not cause the qualification, downgrading or withdrawal of
the then current rating on any Class of Certificates.
(b) This Agreement may also be amended from time to time by the
agreement of 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 allocated to the affected Classes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received or advanced on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii)
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as evidenced by an Opinion of Counsel obtained by or delivered to the Master
Servicer, the Special Servicer and the Trustee (which opinion, insofar as
economic issues involving a Class of Certificates rated by a Rating Agency are
concerned, may rely upon the assurance of the Rating Agencies described below),
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, (iii) modify the
provisions of this Section 11.01 without the consent of the Holders of all
Certificates then outstanding, (iv) modify the provisions of Section 3.20
without the consent of the Holders of Certificates entitled to all of the Voting
Rights or (v) modify the specified percentage of Voting Rights which are
required to be held by Certificateholders to consent or not to object to any
action pursuant to any provision of this Agreement 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 11.01, Certificates registered in the name of
the Depositor or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates, so long as neither the Depositor nor any of its
Affiliates is performing servicing duties with respect to any of the Mortgage
Loans.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the party seeking such amendment) to the effect that (i) such amendment or
the exercise of any power granted to the Trustee, the Master Servicer or the
Special Servicer in accordance with such amendment will not result in the
imposition of a tax on either of REMIC I, REMIC II or REMIC III pursuant to the
REMIC Provisions or cause either of REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding and (ii)
such amendment complies with the provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall send a copy thereof to each Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 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) Each of the Master Servicer, the Special Servicer and 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.
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(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section
11.01(a), (b) or (c) shall be payable out of the Certificate Account or the
Distribution Account pursuant to Section 3.05.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Certificate Account pursuant to Section 3.05(a)) 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 11.03. 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.
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(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 default 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, and without receiving notice to the contrary
from Holders of Certificates entitled to at least 25% of the Voting Rights,
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
whatsoever 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 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws without
regard to conflicts of law principles.
SECTION 11.05. 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 when delivered to: (i) in the case of the Depositor, Commercial
Mortgage Acceptance Corp., 210 West 10th Street, 6th Floor, Kansas City,
Missouri 64105, Attention: President, facsimile number 816-435-2327; (ii) in the
case of the Master Servicer, Midland Loan Services, Inc., 210 West 10th Street,
6th Floor, Kansas City, Missouri 64105, Attention: CMAC Commercial Mortgage
Pass-Through Certificates, Series 1998-C2, facsimile number: 816-435-2327; (iii)
in the case of the Special Servicer, Midland Loan Services, Inc., 210 West 10th
Street, 6th Floor, Kansas City, Missouri
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64015, Attention: CMAC Commercial Mortgage Pass-Through Certificates, Series
1998-C2; (iv) in the case of the Trustee, Norwest Bank Minnesota, National
Association, Corporate Trust Department, 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562, facsimile number 410-884-2360; and (v) in the case of the
Rating Agencies, (A) Duff & Phelps Credit Rating Co., 55 E. Monroe Street,
Chicago, Illinois 60603, Attention: CMBS Monitoring, facsimile number (312)
263-2852 and (B) Standard & Poor's Ratings Group, 25 Broadway, New York, New
York 10004, Attention: Real Estate Ratings Group, Surveillance Manager,
facsimile number: 212-412-0597; or as to each such Person such other address as
may hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register.
SECTION 11.06. 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 several 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 11.07. 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 constituting the Trust
Fund, and (ii) this Agreement shall constitute a security agreement under
applicable law. This Section 11.07 shall constitute notice to the Trustee
pursuant to any of the requirements of the New York UCC.
SECTION 11.08. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other Person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement. Each of
the Sub-Servicers that is a party to a Sub-Servicing Agreement on the Closing
Date shall be a third party beneficiary to obligations of a successor Master
Servicer under Section 3.22(d), provided that the sole remedy for any claim by a
Sub-Servicer as a third party
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beneficiary pursuant to this Section 11.08 shall be against a successor Master
Servicer solely in its corporate capacity and no Sub-Servicer shall have any
rights or claims against the Trust Fund or any party hereto (other than a
successor Master Servicer in its corporate capacity as set forth in this Section
11.08) as a result of any rights conferred on such Sub-Servicer as a third party
beneficiary pursuant to this Section 11.08. This Agreement may not be amended in
any manner that would adversely affect its rights as a third party beneficiary
without its consent.
SECTION 11.09. 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 11.10. Notices to and From Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
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 that has not been
cured;
(iii) the resignation or termination of the Master Servicer or
the Special Servicer;
(iv) the repurchase or substitution of Mortgage Loans by any
of the Mortgage Loan Sellers pursuant to any of the Mortgage Loan
Purchase Agreements;
(v) any change in the location of the Distribution
Account; and
(vi) the final payment to any Class of Certificateholders.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of the Certificate Account.
(c) The Trustee, Master Servicer and Special Servicer shall furnish
each Rating
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Agency with respect to the Certificates or any Mortgage Loan,
including a non-performing or defaulted Mortgage Loan, as applicable, such
information as the Rating Agency shall reasonably request and which the Trustee,
Master Servicer and Special Servicer, as applicable, can reasonably provide in
accordance with applicable law and without waiving any attorney-client privilege
attached to such information. The Master Servicer and the Special Servicer may
attach any reasonable disclaimer it deems appropriate to such information.
(d) To the extent applicable and not previously delivered, each of
the Master Servicer and the Special Servicer shall promptly furnish to each
Rating Agency copies of the following items:
(i) each of its annual statements as to compliance
described in Section 3.13;
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14;
(iii) any Officers' Certificate delivered by it to the Trustee
pursuant to Section 4.03(c) or 3.08; and
(iv) each of its inspection reports described in Section
3.12(a), the statements and reports described in Section 3.12(b),
3.12(c) and 3.12(d) and other reports described in Section 3.19.
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 3.15 and Section 4.02(a) and
(ii) promptly deliver to each Rating Agency a copy of any notices given pursuant
to Section 7.03(a) or Section 7.03(b).
SECTION 11.11. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
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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.
COMMERCIAL MORTGAGE ACCEPTANCE CORP.
Depositor
By: /s/ Clarence A. Krantz
-------------------------------
Name: Clarence A. Krantz
Title: Executive Vice President
MIDLAND LOAN SERVICES, INC.
Master Servicer
By: /s/ Clarence A. Krantz
-------------------------------
Name: Clarence A. Krantz
Title: Executive Vice President
MIDLAND LOAN SERVICES, INC.
Special Servicer
By: /s/ Clarence A. Krantz
-------------------------------
Name: Clarence A. Krantz
Title: Executive Vice President
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
By: /s/ Leslie A. Gaskill
-------------------------------
Name: Leslie A. Gaskill
Title: Vice President
