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ASSET SECURITIZATION CORPORATION,
DEPOSITOR
FIRST UNION NATIONAL BANK,
SERVICER
LENNAR PARTNERS, INC.,
INITIAL SPECIAL SERVICER
LASALLE NATIONAL BANK,
TRUSTEE
and
ABN AMRO BANK N.V.,
FISCAL AGENT
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POOLING AND SERVICING AGREEMENT
Dated as of March 11, 1999
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Commercial Mortgage Asset Trust
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms...........................................
SECTION 1.02. Certain Calculations....................................
SECTION 1.03. Certain Constructions...................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE
OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans and Loan
REMIC Regular Interests; Assignment of
Mortgage Loan Purchase and Sale Agreements..............
SECTION 2.02. Acceptance by Custodian and the Trustee.................
SECTION 2.03. Representations, Warranties and Covenants
of the Depositor........................................
SECTION 2.04. Representations, Warranties and Covenants
of the Servicer, Special Servicer and
Trustee.................................................
SECTION 2.05. Execution and Delivery of Certificates;
Issuance of Lower-Tier Regular Interests................
SECTION 2.06. Miscellaneous REMIC and Grantor Trust
Provisions..............................................
SECTION 2.07. Year 2000 Readiness.....................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Special
Servicer to Act as Special Servicer;
Administration of the Mortgage Loans....................
SECTION 3.02. Liability of the Servicer and Special
Servicer................................................
SECTION 3.03. Collection of Certain Mortgage Loan
Payments................................................
SECTION 3.04. Collection of Taxes, Assessments and
Similar Items; Escrow Accounts..........................
SECTION 3.05. Collection Account, Distribution Account,
Upper-Tier Distribution Account, Excess
Interest Distribution Account and
Repurchase Price Return of Premium
Distribution Account....................................
SECTION 3.06. Permitted Withdrawals from the Collection
Account.................................................
SECTION 3.07. Investment of Funds in the Collection
Account and Borrower Accounts...........................
SECTION 3.08. Maintenance of Insurance Policies and
Errors and Omissions and Fidelity Coverage..............
SECTION 3.09. Enforcement of Due-On-Sale Clauses;
Assumption Agreements; Defeasance
Provisions..............................................
SECTION 3.10. Appraisals; Realization Upon Defaulted
Mortgage Loans..........................................
SECTION 3.11. Trustee to Cooperate; Release of Mortgage
Files...................................................
SECTION 3.12. Servicing Fees, Trustee Fees and Special
Servicing Compensation..................................
SECTION 3.13. Reports to the Trustee; Collection Account
Statements..............................................
SECTION 3.14. Annual Statement as to Compliance.......................
SECTION 3.15. Annual Independent Public
Accountants'Servicing Report............................
SECTION 3.16. Access to Certain Documentation.........................
SECTION 3.17. Title and Management of REO Properties..................
SECTION 3.18. Sale of Specially Serviced Mortgage Loans
and REO Properties......................................
SECTION 3.19. Additional Obligations of the Servicer and
Special Servicer; Inspections...........................
SECTION 3.20. Authenticating Agent....................................
SECTION 3.21. Appointment of Custodians...............................
SECTION 3.22. Reports to the Securities and Exchange
Commission; Available Information.......................
SECTION 3.23. Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and Reserve
Accounts................................................
SECTION 3.24. Property Advances.......................................
SECTION 3.25. Appointment of Special Servicer.........................
SECTION 3.26. Transfer of Servicing Between Servicer and
Special Servicer; Record Keeping........................
SECTION 3.27. Interest Reserve Account................................
SECTION 3.28. Limitations on and Authorizations of the
Servicer and Special Servicer with Respect
to Certain Mortgage Loans...............................
SECTION 3.29. Modification, Waiver, Amendment and
Consents................................................
SECTION 3.30. [Reserved]..............................................
SECTION 3.31. Servicing of Mortgage Loans Subject to
Co-Lender Agreements....................................
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions...........................................
SECTION 4.02. Statements to Certificateholders; Reports
by Trustee; Other Information Available to
the Holders and Others..................................
SECTION 4.03. Compliance with Withholding Requirements................
SECTION 4.04. REMIC Compliance........................................
SECTION 4.05. Imposition of Tax on the Trust Fund.....................
SECTION 4.06. Remittances; P&I Advances...............................
SECTION 4.07. Grantor Trust Reporting.................................
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates........................................
SECTION 5.02. Registration, Transfer and Exchange of
Certificates............................................
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen
Certificates............................................
SECTION 5.04. Appointment of Paying Agent.............................
SECTION 5.05. Access to Certificateholders'Names and
Addresses...............................................
SECTION 5.06. Actions of Certificateholders...........................
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL
SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer
and the Special Servicer................................
SECTION 6.02. Merger or Consolidation of the Servicer or
the Special Servicer....................................
SECTION 6.03. Limitation on Liability of the Depositor,
the Servicer, the Special Servicer and
Others..................................................
SECTION 6.04. Limitation on Resignation of the Servicer
and the Special Servicer; Termination of
the Servicer and the Special Servicer...................
SECTION 6.05. Rights of the Depositor and the Trustee in
Respect of the Servicer and the Special
Servicer................................................
SECTION 6.06. Servicer or Special Servicer as Owner of a
Certificate.............................................
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default......................................
SECTION 7.02. Trustee to Act; Appointment of Successor...............
SECTION 7.03. Notification to Certificateholders.....................
SECTION 7.04. Other Remedies of Trustee..............................
SECTION 7.05. Waiver of Past Events of Default;
Termination............................................
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee......................................
SECTION 8.02. Certain Matters Affecting the Trustee..................
SECTION 8.03. Trustee and Fiscal Agent Not Liable for
Certificates or Mortgage Loans.........................
SECTION 8.04. Trustee and Fiscal Agent May Own
Certificates...........................................
SECTION 8.05. Payment of Trustee's Fees and Expenses;
Indemnification........................................
SECTION 8.06. Eligibility Requirements for Trustee...................
SECTION 8.07. Resignation and Removal of the Trustee.................
SECTION 8.08. Successor Trustee and Fiscal Agent.....................
SECTION 8.09. Merger or Consolidation of Trustee.....................
SECTION 8.10. Appointment of Co-Trustee or Separate
Trustee................................................
SECTION 8.11. Fiscal Agent Appointed; Concerning the
Fiscal Agent...........................................
ARTICLE IX
TERMINATION
SECTION 9.01. Termination............................................
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts...........................................
SECTION 10.02. Limitation on Rights of Certificateholders.............
SECTION 10.03. Governing Law..........................................
SECTION 10.04. Notices................................................
SECTION 10.05. Severability of Provisions.............................
SECTION 10.06. Notice to the Depositor and Each Rating
Agency.................................................
SECTION 10.07. Amendment..............................................
SECTION 10.08. Confirmation of Intent.................................
SECTION 10.09. Xxxxxx Act.............................................
SECTION 10.10. Intended Third-Party Beneficiaries.....................
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-4 Certificate
Exhibit A-5 Form of Class B Certificate
Exhibit A-6 Form of Class C Certificate
Exhibit A-7 Form of Class D Certificate
Exhibit A-8 Form of Class E Certificate
Exhibit A-9 Form of Class X Certificate
Exhibit A-10 Form of Class F Certificate
Exhibit A-11 Form of Class G Certificate
Exhibit A-12 Form of Class H Certificate
Exhibit A-13 Form of Class J Certificate
Exhibit A-14 Form of Class K Certificate
Exhibit A-15 Form of Class L Certificate
Exhibit A-16 Form of Class M-1 Certificate
Exhibit A-17 Form of Class M-2 Certificate
Exhibit A-18 Form of Class R Certificate
Exhibit A-19 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Form of Custodial Agreement
Exhibit G Securities Legend
Exhibit H-1 CCA Mortgage Loan Purchase and Sale Agreement
Exhibit H-2 NHA Mortgage Loan Purchase and Sale Agreement
Exhibit I [Reserved]
Exhibit J [Reserved]
Exhibit K [Reserved]
Exhibit L [Reserved]
Exhibit M-1 Form of Comparative Financial Status Report
Exhibit M-2 Form of Delinquent Loan Status Report
Exhibit M-3 Form of Historical Loan Modification Report
Exhibit M-4 Form of Historical Loss Estimate Report
Exhibit M-5 Form of REO Status Report
Exhibit M-6 Form of Watch List
Exhibit M-7 Form of Loan Payoff Notification Report
Exhibit M-8 Form of Operating Statement Analysis Report
Exhibit M-9 Form of NOI Adjustment Worksheet
Exhibit M-10 CSSA 100.1 Set-Up Data Record Layout
Exhibit M-11 CSSA 100.1 Periodic Data Record Layout
Exhibit M-12 CSSA 100.1 Property Data File
Exhibit M-13 Premium Loan Report
Exhibit N Privileged Person Certificate
Pooling and Servicing Agreement, dated as of March 11, 1999,
among Asset Securitization Corporation, as Depositor, First Union National Bank,
as Servicer, Lennar Partners, Inc., as Initial Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary Statement
shall have the meanings specified in Article I hereof.)
The Depositor intends that the Atlanta Marriott Loan, the DDRA
Loan and the Overland MHP Loan be held as assets of single-loan REMICs (each, a
"Loan REMIC"), that the related Loan REMIC Regular Interests be held as assets
of the Lower-Tier REMIC (defined below), and that the Loan REMIC Residual
Interests be held initially by the Depositor. The Depositor intends to sell
pass-through certificates to be issued hereunder in multiple Classes which in
the aggregate will evidence the entire beneficial ownership interest in the
Trust Fund consisting primarily of the Mortgage Loans. As provided herein, the
Trustee will elect that the Trust Fund, exclusive of the Loan REMICs, the Excess
Interest, the Excess Interest Distribution Account, the Repurchase Return of
Premium Amount and the Repurchase Price Return of Premium Distribution Account
(such portion of the Trust Fund, the "Trust REMICs"), be treated for federal
income tax purposes as two separate real estate mortgage investment conduits
(each, a "REMIC" or, in the alternative, the "Lower-Tier REMIC" and the
"Upper-Tier REMIC," respectively). The Class X-0, Xxxxx X-0, Class A-3, Class
A-4, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M-1, Class M-2 Certificates constitute "regular
interests" in the Upper-Tier REMIC and the Class R Certificates constitute the
sole Class of "residual interests" in the Upper-Tier REMIC for purposes of the
REMIC Provisions. The Class LR Certificates constitute the sole Class of
"residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions. There are also 16 Classes of uncertificated Lower-Tier Regular
Interests issued under this Agreement (the Class A-1-L, Class A-2-L, Class
A-3-L, Class A-4-L, Class X-X, Class C-L, Class D-L, Class E-L, Class F-L, Class
G-L, Class H-L, Class X-X, Class K-L, Class L-L, Class M-1-L and Class M-2-L
Interests), each of which will constitute a regular interest in the Lower-Tier
REMIC. All such Lower-Tier Regular Interests will be held by the Trustee as
assets of the Upper-Tier REMIC. The parties intend (i) that the portions of the
Trust Fund representing the Excess Interest, the Excess Interest Distribution
Account, the Repurchase Return of Premium Amount, and the Repurchase Price
Return of Premium Distribution Account will be treated as a grantor trust under
Subpart E of Part 1 of Subchapter J of the Code, (ii) that the Class X
Certificates represent pro rata undivided beneficial interests in the portion of
the Trust Fund consisting of the right to receive the Repurchase Return of
Premium Amount and the Repurchase Price Return of Premium Distribution Account
and (iii) that the Class A-2, Class A-3, Class A-4, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M-1 and
Class M-2 Certificates represent pro rata undivided beneficial interests in the
portion of the Trust Fund consisting of the Excess Interest and the Excess
Interest Distribution Account based upon their respective initial Certificate
Balances.
The following table sets forth the designation and aggregate
initial Certificate Balance (or, with respect to the Class X Certificates, Class
X Notional Balance) for each Class of Certificates comprising regular interests
in the Upper-Tier REMIC.
INITIAL CERTIFICATE BALANCE
CLASS OR CLASS X NOTIONAL BALANCE INITIAL RATING(2)
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Class A-1 $350,000,000 Aaa/AAA
Class A-2 $100,000,000 Aaa/AAA
Class A-3 $800,000,000 Aaa/AAA
Class A-4 $448,115,000 Aaa/AAA
Class X(1) $2,374,987,404 Aaa/AAAr
Class B $106,875,000 Aa2/AA
Class C $130,624,000 A2/A
Class D $136,562,000 Baa2/BBB
Class E $35,625,000 Baa3/BBB-
Class F $53,437,000 Ba1/BB+
Class G $59,375,000 Ba2/BB
Class H $23,750,000 Ba3/BB-
Class J $29,687,000 B1/NR
Class K $41,562,000 B2/NR
Class L $17,813,000 B3/NR
Class M-1 $41,561,404 NR
Class M-2 $1,000 NR
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(1) The initial Class X Notional Balance of Class X Certificates is equal to
the aggregate initial Certificate Balance of the Sequential Certificates as of
the Cut-off Date.
(2) Rating Agencies (Xxxxx'x/S&P)
Each of the Class R and Class LR Certificates do not have a
Certificate Balance or a notional balance. The Certificate Balance of any Class
of Certificates outstanding at any time represents the maximum amount which
holders thereof are entitled to receive as distributions allocable to principal
from the cash flow on the Mortgage Loans and the other assets in the Trust Fund;
provided, however, that in the event that amounts previously allocated as
Realized Losses to a Class of Certificates in reduction of the Certificate
Balance thereof are subsequently recovered (including without limitation after
the reduction of the Certificate Balance of such Class to zero), such Class may
receive distributions in respect of such recoveries in accordance with the
priorities set forth in Section 4.01.
As of the Cut-off Date, the Mortgage Loans have an aggregate
Stated Principal Balance equal to approximately $2,374,987,404.
In consideration of the mutual agreements herein contained,
the Depositor, the Servicer, the Special Servicer, the Trustee and the Fiscal
Agent agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in this Article.
"ACCOR Credit Lease Loan": The Mortgage Loan secured by, among
other things, a Mortgaged Property subject to a credit lease having ACCOR, a
French corporation, as the guarantor, which Mortgage Loan is identified as Loan
Number 10 on the Mortgage Loan Schedule.
"Act": The Securities Act of 1933, as it may be amended
from time to time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated
as such in the Mortgage Loan Schedule.
"Administrative Fee": With respect to each Mortgage Loan and
for any Distribution Date, an amount per Collection Period equal to the sum of
the Servicing Fee and the Trustee Fee for such Distribution Date.
"Administrative Fee Rate": A rate equal to 0.052% per annum,
which is equal to the sum of the Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the
aggregate amount of Advances for which the Servicer, the Trustee or the Fiscal
Agent, as applicable, have not been reimbursed and Servicing Fees, Trustee Fees
or Special Servicing Compensation for which the Servicer, the Trustee or the
Special Servicer, as applicable, has not been timely paid or reimbursed for the
number of days from (and including) the date on which such Advance was made or
such Servicing Fees, Trustee Fees or Special Servicing Compensation were due to
(but excluding) the date of payment or reimbursement of the related Advance or
other such amount, less any amount of interest previously paid on such Advance
or Servicing Fees, Trustee Fees or Special Servicing Compensation; provided,
that, with respect to a P&I Advance, in the event that the related Borrower
makes payment of the amount in respect of which such P&I Advance was made with
interest at the Default Rate, the Advance Interest Amount payable to the
Servicer, the Trustee or the Fiscal Agent shall be paid (i) first from the
amount of Default Interest paid by the Borrower and (ii) to the extent such
amounts are insufficient therefor, from amounts on deposit in the Collection
Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as
most recently published in the "Money Rates" section of The Wall Street Journal,
New York edition, on or before the related Record Date), compounded monthly as
of each Servicer Remittance Date.
"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. The Trustee may obtain
and rely on an Officers' Certificate of the Servicer, the Special Servicer or
the Depositor to determine whether any Person is an Affiliate of such party.
"Affiliated Person": Any Person (other than a Rating Agency)
involved in the organization or operation of the Depositor or an affiliate, as
defined in Rule 405 of the Act, of such Person.
"Agent Member": Members of, or Depository Participants in,
the Depository.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged
Property, the portion of the principal amount of the related Mortgage Loan
allocated to such Mortgaged Property in the applicable Mortgage, Loan Agreement
or the Mortgage Loan Schedule.
"Annual Compliance Report": A report consisting of an annual
statement of compliance required by Section 3.14 hereof and an annual report of
an Independent accountant required pursuant to Section 3.15 hereof.
"Anticipated Repayment Date": With respect to any Mortgage
Loan that is indicated on the Mortgage Loan Schedule as having a Revised
Mortgage Rate, the date upon which such Mortgage Loan commences accruing
interest at such Revised Mortgage Rate.
"Anticipated Termination Date": Any Distribution Date on which
it is anticipated that the Trust Fund will be terminated pursuant to Section
9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Applicable Procedures": As defined in Section 5.02(c)(ii).
"Applicant": As defined in Section 5.05(a).
"Appraisal Reduction Amount": For any Distribution Date and
for any Mortgage Loan as to which an Appraisal Reduction Event has occurred, an
amount equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan as of the day immediately preceding such Distribution Date over
(b) the excess of (i) 90% of the sum of the appraised values of the related
Mortgaged Properties (or, with respect to each Split Loan, the pro rata portion
of the Mortgaged Properties allocable to the related Split Note) as determined
by Updated Appraisals obtained by the Special Servicer of the Mortgaged
Properties securing such Mortgage Loan over (ii) the sum of (A) to the extent
not previously advanced by the Servicer, the Trustee or the Fiscal Agent, all
unpaid interest on such Mortgage Loan at a per annum rate equal to its Mortgage
Rate, (B) all unreimbursed Advances (in each case, without duplication of any
amounts in clause (A)), and all unpaid interest on Advances at the Advance Rate,
in respect of such Mortgage Loan and (C) all currently due and unpaid real
estate taxes, ground rents and assessments and insurance premiums and all other
amounts due and unpaid with respect to such Mortgage Loan (not including any
such amounts for which funds are held in escrow or any such taxes, premiums and
other amounts which have been advanced by the Servicer, the Trustee or the
Fiscal Agent, as applicable). Within 60 days after the Special Servicer receives
notice or is otherwise aware of the Appraisal Reduction Event, the Special
Servicer shall obtain an Updated Appraisal. If no Updated Appraisal has been
received within 60 days after the first Distribution Date as of which an
Appraisal Reduction Event has occurred in respect of any Mortgage Loan, the
Appraisal Reduction Amount for such Mortgage Loan shall be equal to 30% of the
Stated Principal Balance of such Mortgage Loan as of the date of the related
Appraisal Reduction Event (the "Special Servicer's Appraisal Reduction Amount
Estimate"). On the first Distribution Date occurring on or after the delivery of
such appraisal, the Special Servicer shall (i) adjust the Appraisal Reduction
Amount to take into account such appraisal (regardless of whether the adjusted
Appraisal Reduction Amount is higher or lower than the Special Servicer's
Appraisal Reduction Amount Estimate) and (ii) give written notice to the
Servicer setting forth such adjusted Appraisal Reduction Amount. Each Appraisal
Reduction Amount shall also be adjusted to take into account any subsequent
Updated Appraisal and annual letter updates, as of the date of each such
subsequent Updated Appraisal or letter update. The Special Servicer shall, not
later than 15 days after its receipt thereof, deliver copies of all appraisals
and Updated Appraisals to the Servicer.
"Appraisal Reduction Event": With respect to any Mortgage
Loan, the first Distribution Date following the earliest of (i) the third
anniversary of the date on which an extension of the Maturity Date of such
Mortgage Loan becomes effective as a result of a modification of such Mortgage
Loan by the Special Servicer pursuant to the terms hereof, which extension does
not change the amount of Monthly Payments on the Mortgage Loan, (ii) 60 days
after an uncured Delinquency (without regard to the application of any grace
period) occurs in respect of such Mortgage Loan, (iii) the date on which a
reduction in the amount of Monthly Payments on such Mortgage Loan, or a change
in any other material economic term of such Mortgage Loan (other than an
extension of the Maturity Date), becomes effective as a result of a modification
of such Mortgage Loan by the Special Servicer, (iv) the date a receiver has been
appointed, (v) the date a Borrower declares bankruptcy or 60 days after the
Borrower becomes the subject of involuntary bankruptcy proceedings and such
proceedings are not dismissed, (vi) the date a Mortgage Loan becomes an REO
Mortgage Loan, (vii) 60 days after a default in the payment of a Balloon
Payment, or (viii) any other event which, in the discretion of the Special
Servicer and of which the Special Servicer becomes aware in performing its
obligations hereunder, in accordance with the Servicing Standard, would
materially and adversely impair the value of a Mortgaged Property as security
for the related Mortgage Loan. The Servicer shall notify the Special Servicer
within five (5) days of its becoming aware of the occurrence of any of the
foregoing events.
"ARD Loan": A Mortgage Loan that bears interest at its
Mortgage Rate until, or within three months after, its Anticipated Repayment
Date, after which it will bear interest at its Revised Mortgage Rate.
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
agreement executed by the Borrower, assigning to the mortgagee all of the
income, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without
recourse, notice of transfer or equivalent instrument, in recordable form, which
is sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording; provided, however, that none of the Trustee, the Custodian, the
Special Servicer or the Servicer shall be responsible for determining whether
any assignment is legally sufficient or in recordable form.
"Assumed Final Distribution Date": With respect to each
Class of Certificates shall be as follows:
Assumed Final
Class Distribution Date
----- -----------------
X-0 Xxxxxx 00, 0000
X-0 July 17, 2008
X-0 Xxxxxxxxx 00, 0000
X-0 April 17, 2013
B July 17, 2013
C August 17, 2013
D October 17, 2013
E October 17, 2013
X June 17, 2020
F November 17, 2013
G December 17, 2013
H December 17, 2013
J January 17, 2014
K September 17, 2015
L May 17, 2017
M-1 June 17, 2020
M-2 June 17, 2020
R NA
LR NA
"Assumed Scheduled Payment": With respect to any Mortgage Loan
that is delinquent in respect of its Balloon Payment (including any REO Mortgage
Loan as to which the Balloon Payment would have been past due), an amount equal
to the sum of (a) the principal portion of the Monthly Payment that would have
been due on such Mortgage Loan on the related Due Date (or portion thereof not
received), based on the constant payment required by the related Note or the
original amortization or payment schedule thereof (as calculated with interest
at the related Mortgage Rate) (if any), assuming such Balloon Payment had not
become due, after giving effect to any prior modification, and (b) interest on
the Stated Principal Balance of such Mortgage Loan at the applicable Net
Mortgage Pass-Through Rate.
"Assumption Fees": Any fees (other than processing fees)
collected by the Servicer or Special Servicer in connection with an assumption
of a Mortgage Loan or substitution of a Borrower thereunder permitted to be
executed under the provisions of this Agreement.
"Atlanta Marriott Loan": The Mortgage Loan identified as
Loan No. 6 on the Mortgage Loan Schedule.
"Atlanta Marriott REMIC Declaration": That certain REMIC
Declaration dated as of February 21, 1999 with respect to the Atlanta Marriott
Loan.
"Atlanta Marriott REMIC Regular Interest": The uncertificated
"regular interest," within the meaning of Code Section 860G(a)(1), in the
Atlanta Marriott REMIC issued pursuant to the Atlanta Marriott REMIC
Declaration.
"Atlanta Marriott REMIC Residual Interest": The uncertificated
"residual interest," within the meaning of Code Section 860G(a)(2), in the
Atlanta Marriott REMIC issued pursuant to the Atlanta Marriott REMIC
Declaration.
"Atlanta Marriott REMIC": The REMIC constituted by the
Atlanta Marriott Loan.
"Authenticating Agent": Any authenticating agent appointed
by the Trustee pursuant to Section 3.20.
"Available Funds": For a Distribution Date, the sum of (i) all
previously undistributed Monthly Payments or other receipts on account of
principal and interest (including Unscheduled Payments and any Net REO Proceeds
transferred from an REO Account pursuant to Section 3.17(b)) on or in respect of
the Mortgage Loans, received by the Servicer in the Collection Period relating
to such Distribution Date, (ii) all other amounts received by the Servicer in
such Collection Period and required to be placed in the Collection Account by
the Servicer pursuant to Section 3.05 allocable to such Mortgage Loans,
including all P&I Advances made by the Servicer, the Trustee or the Fiscal Agent
in respect of such Distribution Date, (iii) for the Distribution Date occurring
in each March, the Withheld Amounts remitted to the Distribution Account
pursuant to Section 3.27(b), (iv) any late payments of Monthly Payments received
after the end of the Collection Period relating to such Distribution Date but
prior to the close of business on the Business Day prior to the related Servicer
Remittance Date and (v) any Prepayment Interest Excesses up to an amount equal
to any Prepayment Interest Shortfalls for all Mortgage Loans other than Mortgage
Loans that permit prepayments on a date other than a Due Date and other than the
Specially Serviced Mortgage Loans and any Servicer Prepayment Interest
Shortfalls remitted by the Servicer to the Collection Account, but excluding
(without duplication) the following:
(a) amounts permitted to be used to reimburse the
Servicer, the Trustee or the Fiscal Agent, as
applicable, for previously unreimbursed Advances and
interest thereon as described in Section 3.06(ii) and
(iii);
(b) those portions of each payment of interest which
represent the applicable Servicing Fee and Trustee
Fee and an amount representing any Servicing
Compensation, applicable Special Servicing
Compensation or amount withdrawn from the Collection
Account pursuant to Section 3.06(iv);
(c) all amounts in the nature of late fees (subject to
Section 3.12 hereof), loan modification fees,
extension fees, loan service transaction fees,
demand fees, beneficiary statement charges,
Assumption Fees and similar fees, which the
Servicer or the Special Servicer is entitled to
retain as Servicing Compensation or Special
Servicing Compensation, respectively;
(d) all amounts representing scheduled Monthly Payments
due after the related Due Date;
(e) that portion of Net Liquidation Proceeds or Net
Insurance Proceeds with respect to a Mortgage Loan
which represents any unpaid Servicing Fee, Trustee
Fee and Special Servicing Compensation to which the
Servicer, Trustee and the Special Servicer,
respectively, are entitled;
(f) all amounts representing certain expenses
reimbursable or payable to the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent
and other amounts permitted to be retained by the
Servicer or withdrawn by the Servicer from the
Collection Account to the extent expressly set
forth in this Agreement (including, without
limitation, as provided in Section 3.06 and
including any indemnities provided for herein),
including interest thereon as provided in this
Agreement;
(g) any interest or investment income on funds on
deposit in the Collection Account, the Upper-Tier
Distribution Account, the Distribution Account, the
Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution
Account, the Interest Reserve Account, or any REO
Account or, to the extent payable to the Trustee or
the Servicer under the terms of the related
Mortgage Loan, any Cash Collateral Account, any
Lock-Box Account or any Reserve Account or, in each
case, in Permitted Investments in which such funds
may be invested;
(h) any Withheld Amounts deposited into the Interest
Reserve Account on the related Servicer Remittance
Date;
(i) all amounts received with respect to each Mortgage
Loan previously purchased or repurchased pursuant to
Sections 2.03(d), 2.03(e), 3.18 or 9.01 during the
related Collection Period and subsequent to the date
as of which the amount required to effect such
purchase or repurchase was determined;
(j) the amount reasonably determined by the Trustee to be
necessary to pay any applicable federal, state or
local taxes imposed on the Upper-Tier REMIC, the
Lower-Tier REMIC or any Loan REMIC under the
circumstances and to the extent described in Section
4.05;
(k) Prepayment Premiums and any Repurchase Return of
Premium Amount;
(l) Default Interest;
(m) Excess Interest; and
(n) Prepayment Interest Excesses in excess of the amount
of Prepayment Interest Shortfalls on Mortgage Loans
(other than Mortgage Loans that permit prepayments on
a date other than a Due Date and other than Specially
Serviced Mortgage Loans).
"Balloon Loan": Any Mortgage Loan that requires a payment of
principal on the maturity date in excess of its constant Monthly Payment.
"Base Interest Rate": With respect to each Premium Loan,
the rate set forth on the Mortgage Loan Schedule.
"Balloon Payment": With respect to each Mortgage Loan, the
scheduled payment of principal due on the Maturity Date (less principal included
in the applicable amortization schedule or scheduled Monthly Payment).
"Beneficial Owner": With respect to a Global 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 Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository) with
respect to such Classes. Each of the Trustee and the Servicer shall have the
right to require, as a condition to acknowledging the status of any Person as a
Beneficial Owner under this Agreement, that such Person provide evidence at its
expense of its status as a Beneficial Owner hereunder.
"Bankruptcy Code": The federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
"Bid Allocation": With respect to the Servicer and each
sub-servicer and the proceeds of any bid pursuant to Section 7.01(c), the amount
of such proceeds (net of out of pocket expenses incurred in connection with
selling and transferring the servicing of the Mortgage Loans) multiplied by a
fraction equal to (a) the Servicer Fee Amount for such sub-servicer or the
Servicer as the case may be as of such date of determination, over (b) aggregate
of the Servicer Fee Amounts for all of the sub-servicers and the Servicer as of
such date of determination.
"Bloomfield Purchase Agreement": With respect to certain
Mortgage Loans not originated by CCA, the agreement between CCA and Bloomfield
Acceptance Company, LLC pursuant to which CCA acquired such Mortgage Loans.
"Borrower": With respect to any Mortgage Loan, any obligor
or obligors on any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Business Day": Any day other than a Saturday, a Sunday or any
day on which banking institutions in the States of Delaware, Florida, Georgia,
Illinois, Maryland, New York, North Carolina or Texas are authorized or
obligated by law, executive order or governmental decree to be closed.
"Cash Collateral Account": With respect to any Mortgage Loan
that has a Lock-Box Account, any account or accounts created pursuant to the
related Mortgage, Loan Agreement, Cash Collateral Account Agreement or other
loan document into which the Lock-Box Account monies are swept on a regular
basis for the benefit of the Trustee as successor to the Mortgage Loan Seller.
Any Cash Collateral Account shall be beneficially owned for federal income tax
purposes by the Person who is entitled to receive all reinvestment income or
gain thereon in accordance with the terms and provisions of the related Mortgage
Loan and Section 3.07, which Person shall be taxed on all reinvestment income or
gain thereon in accordance with the terms of the related Mortgage Loan. The
Servicer shall be permitted to make withdrawals therefrom for deposit into the
Collection Account. To the extent not inconsistent with the terms of the related
Mortgage Loan, each such Cash Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any
Mortgage Loan, the cash collateral account agreement, if any, between the
Originator and the related Borrower, pursuant to which the related Cash
Collateral Account, if any, may have been established.
"CCA": The Capital Company of America LLC, a Delaware limited
liability company, or its successor. As applicable, "CCA" shall refer to Nomura
Asset Capital Corporation, a Delaware corporation, as predecessor of The Capital
Company of America LLC.
"CCA Mortgage Loan Purchase and Sale Agreement": The Mortgage
Loan Purchase and Sale Agreement dated as of the Cut-off Date, by and between
the Depositor and CCA, a copy of which is attached hereto as Exhibit H-1.
"Cedel": Citibank, N.A., as depositary for Cedel Bank,
societe anonyme, or its successor in such capacity.
"Certificate": Any Class A-1, Class A-2, Class A-3, Class A-4,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M-1, Class M-2, Class R or Class LR Certificate issued,
authenticated and delivered hereunder.
"Certificate Balance": With respect to any Class of
Certificates (other than the Class X, Class R and Class LR Certificates) or
Lower-Tier Regular Interests (a) on or prior to the first Distribution Date, an
amount equal to the aggregate initial Certificate Balance of such Class, as
specified in the Preliminary Statement hereto, (b) as of any date of
determination after the first Distribution Date, the Certificate Balance of such
Class on the Distribution Date immediately prior to such date of determination
after distributions allocable to principal have been made thereon and Realized
Losses have been allocated thereto on such prior Distribution Date; provided
that for purposes of determining Voting Rights, the Certificate Balance of the
Class (other than the Class A-1, Class A-2, Class A-3 and Class A-4
Certificates) shall be deemed to have been reduced by an amount equal to the
amount of Appraisal Reduction Amounts allocated to the Class pursuant to Section
4.01(h); provided that no such reduction shall apply to the Voting Rights of the
Class X Certificates. With respect to any Class of Lower-Tier Regular Interests,
the Certificate Balance thereof shall, in any event, be equal to the Certificate
Balance of the Related Certificates. The Certificate Balance of each Loan REMIC
Regular Interest corresponds to the Stated Principal Balance of the related
Mortgage Loan.
"Certificate Custodian": Initially, LaSalle National Bank;
thereafter any other Certificate Custodian acceptable to the Depository and
selected by the Trustee.
"Certificate Register" and "Certificate Registrar": The
register maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person whose name is registered in
the Certificate Register subject to the following:
(i) except as provided in clause (ii), for the purpose
of giving any consent or taking any action pursuant
to this Agreement, any Certificate beneficially
owned by the Depositor, the Servicer, the Special
Servicer, the Trustee (in its individual capacity),
a Manager or a Borrower or any Person known to a
Responsible Officer of the Certificate Registrar to
be an Affiliate of any thereof 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
or take any such action has been obtained;
(ii) for purposes of obtaining the consent of
Certificateholders to an amendment of this
Agreement, any Certificates beneficially owned by
the Servicer or the Special Servicer or an
Affiliate thereof shall be deemed to be
outstanding, unless such amendment relates to
compensation of the Servicer or the Special
Servicer or benefits the Servicer or the Special
Servicer (in its capacity as such) or any Affiliate
thereof (other than solely in its capacity as
Certificateholder) in any material respect, in
which case such Certificates shall be deemed not to
be outstanding;
(iii) except as provided in clause (iv) below, for
purposes of obtaining the consent of
Certificateholders to any action proposed to be
taken by the Special Servicer with respect to a
Specially Serviced Mortgage Loan, any Certificates
beneficially owned by the Special Servicer or an
Affiliate thereof shall be deemed not to be
outstanding;
(iv) for purposes of Section 3.29 (for purposes of
determining who the Directing Holders are),
Certificates owned by the Special Servicer or an
Affiliate shall be deemed to be outstanding; and
(v) for purposes of providing or distributing any
reports, statements or other information required
or permitted to be provided to a Certificateholder
hereunder, a Certificateholder shall include any
Beneficial Owner, or any Person identified by a
Beneficial Owner as a prospective transferee of a
Certificate beneficially owned by such Beneficial
Owner, but only if the Trustee or another party
hereto furnishing such report, statement or
information has been provided with the name of the
Beneficial Owner of the related Certificate or the
Person identified as a prospective transferee
thereof. For purposes of the foregoing, the
Depositor, the Servicer, the Special Servicer, the
Trustee, the Paying Agent, the Fiscal Agent or
other such Person may rely, without limitation, on
a Depository Participant listing from the
Depository or statements furnished by a Person that
on their face appear to be statements from a
Depository Participant to such Person indicating
that such Person beneficially owns Certificates.
"Class": With respect to the Certificates or Lower-Tier
Regular Interests, all of the Certificates or Lower-Tier Regular Interests
bearing the same alphabetical and numerical Class designation.
"Class A-1 Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": A per annum rate equal to
6.250%.
"Class A-1-L Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"Class A-2 Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to
6.585%.
"Class A-2-L Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"Class A-3 Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to
6.640%.
"Class A-3-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class A-4 Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-4 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to the
lesser of 6.975% and the Weighted Average Net Mortgage Pass-Through Rate for the
related Distribution Date.
"Class A-4-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class B Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-5 hereto.
"Class B Pass-Through Rate": A per annum rate equal to the
lesser of 7.230% and the Weighted Average Net Mortgage Pass-Through Rate for
such Distribution Date.
"Class X-X Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"Class C Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-6 hereto.
"Class C Pass-Through Rate": A per annum rate equal to the
lesser of 7.350% and the Weighted Average Net Mortgage Pass-Through Rate for the
related Distribution Date.
"Class C-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class D Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-7 hereto.
"Class D Pass-Through Rate": A per annum rate equal to the
lesser of 7.350% and the Weighted Average Net Mortgage Pass-Through Rate for the
related Distribution Date.
"Class D-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class E Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-8 hereto.
"Class E Pass-Through Rate": A per annum rate equal to the
lesser of 7.350% and the Weighted Average Net Mortgage Pass-Through Rate for the
related Distribution Date.
"Class E-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class F Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-10 hereto.
"Class F Pass-Through Rate": A per annum rate equal to
6.25%.
"Class F-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class G Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-11 hereto.
"Class G Pass-Through Rate": A per annum rate equal to
6.25%.
"Class G-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class H Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-12 hereto.
"Class H Pass-Through Rate": A per annum rate equal to
6.25%.
"Class H-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class Interest Distribution Amount": With respect to any
Distribution Date and any Class of Certificates (other than the Class R and
Class LR Certificates), an amount equal to the Interest Accrual Amount thereof
for such Distribution Date.
"Class Interest Shortfall": For any Distribution Date for any
Class of Certificates, the amount of interest (other than Excess Interest)
required to be distributed to the Holders of such Class pursuant to Section
4.01(b) on all prior Distribution Dates, if any, minus the amount of interest
(other than Excess Interest) actually distributed to such Holders pursuant to
such Section on all prior Distribution Dates, if any.
"Class J Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-13 hereto.
"Class J Pass-Through Rate": A per annum rate equal to
6.25%.
"Class X-X Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class K Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-14 hereto.
"Class K Pass-Through Rate": A per annum rate equal to
6.25%.
"Class K-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class L Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-15 hereto.
"Class L Pass-Through Rate": A per annum rate equal to
6.25%.
"Class L-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class LR Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-18 hereto. The Class
LR Certificates have no Pass-Through Rate, Certificate Balance or notional
balance.
"Class M-1 Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-16 hereto.
"Class M-1 Pass-Through Rate": A per annum rate equal to
6.25%.
"Class M-1-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class M-2 Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-17 hereto.
"Class M-2 Pass-Through Rate": A per annum rate equal to
6.25%.
"Class M-2-L Interest": A regular interest in the Lower-Tier
REMIC entitled to the monthly distributions payable thereto pursuant to Section
4.01.
"Class R Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-18 hereto. The Class
R Certificates have no Pass-Through Rate, Certificate Balance or notional
balance.
"Class X Certificate": Any one of the Certificates executed
and authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-9 hereto.
"Class X Notional Balance": With respect to the Class X
Certificates, (a) with respect to the Distribution Date occurring in April 1999,
a notional amount equal to the aggregate of the initial Certificate Balances of
the Lower-Tier Regular Interests as of the Closing Date, which corresponds to
the aggregate of the initial Certificate Balances of the Sequential Certificates
as of the Closing Date, and (b) with respect to any Distribution Date after
April 1999, a notional amount equal to the aggregate of the Certificate Balances
of the Lower-Tier Regular Interests as of the first day of the related Interest
Accrual Period, which corresponds to the aggregate of the Certificate Balances
of the Sequential Certificates as of the first day of the related Interest
Accrual Period.
"Class X Pass Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Pass-Through
Rate minus the then applicable Weighted Average Pass-Through Rate.
"Closing Date": March 25, 1999.
"Co-Lender": With respect to any Split Loan, the holder of any
note which by the terms of the related Co-Lender Agreement is not entitled to
direct the administration of such Split Loan.
"Co-Lender Agreement": With respect to each Split Note and the
related Other Note or Other Notes, the agreement dated as of the date hereof
between the Trustee and the holder of the related Other Note or Other Notes,
regarding the administration of the Split Loans and the allocation of all
amounts received by the holders of the notes comprising any portion thereof.
"Co-Lender Split Note": Any Split Note as to which the
related Co-Lender Agreement designates the Trustee as the "Co-Lender."
"Code": The Internal Revenue Code of 1986, as amended from
time to time, any successor statute thereto, and any temporary or final
regulations of the United States Department of the Treasury promulgated pursuant
thereto.
"Collateral Account": As defined in Section 3.29(e). The
Collateral Account shall be maintained as an Eligible Account.
"Collection Account": The trust account or accounts created
and maintained by the Servicer pursuant to Section 3.05(a), which shall be
entitled "First Union National Bank, in trust for LaSalle National Bank, as
Trustee, in trust for Holders of Commercial Mortgage Asset Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C1, Collection Account," and
which must be an Eligible Account.
"Collection Period": With respect to a Distribution Date and
each Mortgage Loan, the period beginning on the day after the last day of the
preceding Collection Period (or, with respect to the first Collection Period,
March 12, 1999) and ending at the close of business on the 11th day of the month
in which such Distribution Date occurs (or, if such day is not a Business Day,
on the following Business Day).
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report substantially
containing the content described in Exhibit M-1 attached hereto, setting forth,
among other things, the occupancy, revenue, net operating income or net cash
flow, as applicable, and Debt Service Coverage Ratio for each Mortgage Loan as
of the date of the latest financial information available immediately preceding
the preparation of such report for each of the following periods (to the extent
such information is available): (i) the most current available year-to-date,
(ii) the most recent twelve months, (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); provided, however, that Debt Service Coverage Ratio
shall not be calculated for any Mortgaged Property for which twelve months of
operating information is not available (including for purposes of clause (i)).
For the purposes of the Servicer's production of any such report that is
required to state information for any period prior to the Cut-off Date, the
Servicer may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the Mortgage Loan Sellers.
"Corporate Trust Office": The principal office of the Trustee
located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Asset-Backed Securities Trust Services Group - CMAT 1999-C1 or the
principal trust office of any successor trustee qualified and appointed
pursuant to Section 8.08.
"Corrected Mortgage Loan": A Mortgage Loan that was, but has
ceased to be, a Specially Serviced Mortgage Loan and that is still outstanding
and part of the Trust Fund.
"Credit Lease Loans": The Mortgage Loans identified on the
Mortgage Loan Schedule as Credit Lease Loans.
"Cross-Indemnified Party": As defined in Section 8.05(c).
"Cross-Indemnifying Party": As defined in Section 8.05(c).
"Crossover Date": means the Distribution Date on which the
Certificate Balance of each Class of Certificates other than the Class A-1,
Class A-2, Class A-3 and Class A-4 Certificates has been reduced to zero.
"CSSA Reports": Data files which contain the information
substantially in the forms of the CSSA standard reporting package attached as
Exhibit X-00, Xxxxxxx X-00 and Exhibit M-12, as the same may be modified from
time to time.
"Custodial Agreement": The Custodial Agreement, if any, from
time to time in effect between the Custodian named therein and the Trustee,
substantially in the form of Exhibit F hereto, as the same may be amended or
modified from time to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21
and, unless the Trustee is Custodian, named pursuant to any Custodial Agreement.
The Custodian may (but need not) be the Trustee or Servicer or any Affiliate of
the Trustee or the Servicer, but may not be the Depositor or any Affiliate
thereof.
"Cut-off Date": March 11, 1999.
"Dairy Mart Credit Lease Loans": Collectively, those Mortgage
Loans which are identified as the Dairy Mart Loans (Loan Numbers 201, 202, 205,
207, 221 and 226) on the Mortgage Loan Schedule.
"DDRA Loan": The Mortgage Loan identified as Loan No. 1 on
the Mortgage Loan Schedule.
"DDRA REMIC": The REMIC constituted by the DDRA Loan.
"DDRA REMIC Declaration": That certain REMIC Declaration dated
as of March 11, 1999 with respect to the DDRA Loan.
"DDRA REMIC Regular Interest": The uncertificated regular
interest, within the meaning of Code Section 860G(a)(1), in the DDRA REMIC
issued pursuant to the DDRA REMIC Declaration.
"DDRA REMIC Residual Interest": The uncertificated residual
interest, within the meaning of Code Section 860G(a)(2), in the DDRA REMIC
issued pursuant to the DDRA REMIC Declaration.
"Debt Service Coverage Ratio": With respect to any Mortgage
Loan as of any date of determination and for any period, the ratio calculated by
dividing the net operating income or net cash flow, as applicable, of the
related Mortgaged Property or Mortgaged Properties, as the case may be, for the
most recently ended one-year period for which data is available from the related
Borrower, before payment of any scheduled payments of principal and interest on
such Mortgage Loan but after funding of required reserves and "normalized" by
the Servicer pursuant to Section 3.13, by the annual debt service required by
such Mortgage Loan. Annual debt service shall be calculated by multiplying the
Monthly Payment in effect on such date of determination for such Mortgage Loan
by 12. For purposes of calculating Debt Service Coverage Ratio for any of the
Split Loans, all pari passu notes secured by the related Mortgaged Property are
included (to the extent the Servicer or the Co-Servicer, as applicable, has
received such information).
"Default Interest": With respect to any Mortgage Loan,
interest accrued on such Mortgage Loan at the excess of (i) the related Default
Rate over (ii) the sum of the related Mortgage Rate and, if applicable, the
related Excess Rate.
"Default Rate": With respect to each Mortgage Loan, the per
annum rate at which interest accrues on such Mortgage Loan following any event
of default on such Mortgage Loan, including a default in the payment of a
Monthly Payment or a Balloon Payment.
"Delinquency": Any failure of a Borrower to make a
scheduled payment on a Due Date.
"Delinquent Loan Status Report": A report substantially
containing the content described in Exhibit M-2 attached hereto, setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the Due Date immediately preceding the preparation of such report, were
delinquent 30-59 days, delinquent 60-89 days, delinquent 90 days or more,
current but specially serviced, or were in foreclosure but were not REO
Property.
"Denomination": As defined in Section 5.01(a).
"Depositor": Asset Securitization Corporation, a Delaware
corporation, and its successors and assigns.
"Depositor/NSI Transfer": As defined in Section 2.03(j)(xi).
"Depositor/Trustee Transfer": As defined in Section
2.03(j)(xi).
"Depository": The Depository Trust Company or a successor
appointed by the Certificate Registrar (which appointment shall be at the
direction of the Depositor if the Depositor is legally able to do so).
"Depository Participant": A Person for whom, from time to
time, the Depository effects book-entry transfers and pledges of securities
deposited with the Depository.
"Determination Date": The 11th day of each month or, if
such day is not a Business Day, the next succeeding Business Day.
"Dictaphone Credit Lease Loan": The Mortgage Loan which is
identified as Loan Number 33 on the Mortgage Loan Schedule.
"Directing Holders": As defined in Section 3.29(b).
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof that are not
customarily provided to tenants in connection with the rental of space for
occupancy only within the meaning of Treasury Regulations Section
1.512(b)-1(c)(5), the management or operation of such REO Property, the holding
of such REO Property primarily for sale to customers in the ordinary course of a
trade or business, or any use of such REO Property in a trade or business
conducted by the Trust Fund, or the performance of any construction work on the
REO Property (unless such construction was at least 10% completed when default
on the related Mortgage Loan became imminent); provided, however, that the
Special Servicer, on behalf of the Trust Fund, shall not be considered to
Directly Operate an REO Property solely because the Special Servicer, on behalf
of the Trust Fund, 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 or takes other actions
consistent with Treasury Regulations Section 1.856-4(b)(5)(ii) of the
regulations of the United States Department of the Treasury.
"Discount Rate": With respect to any Class of Certificates,
the rate determined by the Trustee, in its good faith, to be the yield
(compounded monthly) on the U.S. Treasury issue (primary issue) with a maturity
date closest to the Assumed Final Distribution Date of such Class.
"Discount Rate Fraction": As defined in Section
4.01(c)(i)(I).
"Disqualified Non-U.S. Person": With respect to a Residual
Interest, any Non-U.S. Person or agent thereof other than (i) a Non-U.S. Person
that holds the Residual Interest in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Certificate Registrar with an effective IRS Form 4224 or (ii) a Non-U.S. Person
that has delivered to both the transferor and the Certificate Registrar an
opinion of a nationally recognized tax counsel to the effect that the transfer
of the Residual Interest to it is in accordance with the requirements of the
Code and the regulations promulgated thereunder and that such transfer of the
Residual Interest will not be disregarded for federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a
State or any political subdivision thereof, any possession of the United States,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax, except for FHLMC, and a majority of its board of directors is not selected
by any such governmental unit), (b) a foreign government, International
Organization or agency or instrumentality of either of the foregoing, (c) an
organization that is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to the
Residual Interests (except certain farmers' cooperatives described in Code
Section 521), (d) rural electric and telephone cooperatives described in Code
Section 1381(a)(2), or (e) any other Person so designated by the Certificate
Registrar based upon an Opinion of Counsel to the effect that any Transfer to
such Person may cause the Upper-Tier REMIC, Lower-Tier REMIC or any Loan REMIC
to be subject to tax or to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions.
"Distribution Account": The trust account or accounts created
and maintained as a separate trust account or accounts by the Trustee pursuant
to Section 3.05(b), which shall be entitled "LaSalle National Bank, as Trustee,
in trust for Holders of Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, Distribution
Account" and which must be an Eligible Account.
"Distribution Date": The 17th day of each month; provided,
that if the 17th day of any month is not a Business Day, the Distribution Date
will be the following Business Day. The first Distribution Date will be April
19, 1999.
"Distribution Date Statement": As defined in Section
4.02(a).
"Due Date": Except with respect to the ACCOR Credit Lease
Loan, the Dairy Mart Credit Lease Loans and the Dictaphone Credit Lease Loan,
with respect to any Distribution Date and/or any Mortgage Loan, as the case may
be, the 11th day of the month in which such Distribution Date occurs (or in the
case of certain of the Mortgage Loans, if the 11th day is not a business day, as
defined in the related Loan Documents, either the next business day or the first
preceding business day). With respect to the ACCOR Credit Lease Loan, the Dairy
Mart Credit Lease Loans and the Dictaphone Credit Lease Loan, the Due Date is
the 1st day of the month (or, if the 1st day is not a business day, as defined
in the related Loan Documents, either the next business day or the first
preceding business day).
"Early Termination Notice Date": Any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
"Eligible Account": Any of (i) (A) an account or accounts
maintained with a depository institution or trust company the short term
unsecured debt obligations or commercial paper of which are rated at least "P-1"
by Xxxxx'x and "A-1" by S&P in the case of accounts in which funds are held for
30 days or less (or, in the case of accounts in which funds are held for more
than 30 days, the long term unsecured debt obligations of which are rated at
least "AA" by S&P (or if such depository institution or trust company does not
have a rating of "AA" by S&P for its long term unsecured debt obligations, then
a rating of "A-1" for its short-term unsecured debt obligations or commercial
paper and a rating of at least "A-" for its long-term unsecured debt
obligations) and "Aa3" by Xxxxx'x) or (B) as to which the Trustee has received
written confirmation from each of the Rating Agencies that holding funds in such
account would not cause any Rating Agency to qualify, withdraw or downgrade any
of its ratings on the Certificates; (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 substantially
similar to 12 C.F.R. 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 and state authority; or (iii) any other account that, as evidenced by a
written confirmation from each Rating Agency would not, in and of itself, cause
a downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates, which may be an account maintained with the Trustee.
Eligible Accounts may bear interest.
"Eligible Investor": Any of (i) a Qualified Institutional
Buyer that is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) except in the case of a Class R or
Class LR Certificate, an Institutional Accredited Investor.
"Environmental Report": The environmental audit report or
reports with respect to each Mortgaged Property delivered to the Mortgage Loan
Seller in connection with the related Mortgage.
"ERISA": The Employee Retirement Income Security Act of
1974, as it may be amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any
Escrow Account may be a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the
Servicer pursuant to the related Mortgage, Cash Collateral Agreement, Lock-Box
Agreement or Loan Agreement for the account of such Borrower for application
toward the payment of taxes, insurance premiums, assessments and similar items
in respect of the related Mortgaged Property.
"Euroclear": Xxxxxx Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System, or its successor in such
capacity.
"Event of Default": A Servicer Event of Default or Special
Servicer Event of Default, as applicable.
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Mortgage Rate,
interest accrued on such Mortgage Loan allocable to the Excess Rate. The Excess
Interest shall not be an asset of the Loan REMICs, the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate trust account or accounts by the
Trustee pursuant to Section 3.05(d), which shall be entitled "LaSalle National
Bank, as Trustee, in trust for Holders of Commercial Mortgage Asset Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, Excess Interest
Distribution Account" and which must be an Eligible Account. The Excess Interest
Distribution Account shall not be an asset of the Loan REMICs, the Lower-Tier
REMIC or the Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Mortgage Rate, the
excess of (i) the applicable Revised Mortgage Rate over (ii) the applicable
Mortgage Rate, each as set forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as it
may be amended from time to time.
"Exchange Act Report": A monthly Distribution Date Statement,
Comparative Financial Status Report, Delinquent Loan Status Report, Historical
Loss Estimate Report, Historical Loan Modification Report, REO Status Report,
Operating Statement Analysis, NOI Adjustment Worksheet, Watch List, Loan Payoff
Notification Report, Premium Loan Report or report pursuant to Section 4.02(b)
or Annual Compliance Report to be filed with the Commission, under cover of the
related form required by the Exchange Act.
"Extension Case": As defined in Section 3.29(c).
"Fair Market Value": As defined in Section 3.29(e).
"FDIC": The Federal Deposit Insurance Corporation, or any
successor thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Recovery Determination": With respect to any Specially
Serviced Mortgage Loan, REO Mortgage Loan or Mortgage Loan subject to repurchase
by the Depositor or the Mortgage Loan Seller pursuant to Sections 2.03(d) or
2.03(e), the recovery of all Insurance Proceeds, Liquidation Proceeds, the
related Repurchase Price and other payments or recoveries (including proceeds of
the final sale of any REO Property) which the Servicer (or in the case of a
Specially Serviced Mortgage Loan, the Special Servicer), in its reasonable
judgment as evidenced by a certificate of a Servicing Officer delivered to the
Trustee, the Special Servicer and the Custodian (and the Servicer, if the
Certificate is from the Special Servicer), expects to be finally recoverable.
The Servicer or the Special Servicer, as applicable, shall maintain records,
prepared by a Servicing Officer, of each Final Recovery Determination made by it
until the earlier of (i) its termination as Servicer hereunder and the transfer
of such records to a successor servicer and (ii) five years following the
termination of the Trust Fund.
"Financial Market Publisher": Bloomberg, L.P., Intex
Solutions, Inc., Charter Research Corporation, Wall Street Analytics, Inc.,
and the Xxxxx Group.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking
corporation in its capacity as fiscal agent of the Trustee, or its successor in
interest, or any successor fiscal agent appointed as herein provided.
"Fixed Voting Rights Percentage": As defined in the
definition of "Voting Rights."
"Form 8-K": A Current Report on Form 8-K under the Exchange
Act, or such successor form as the Commission may specify from time to time.
"Global Certificates": The Class A-1, Class A-2, Class A-3,
Class A-4, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M-1 and Class X Certificates.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., or any other
environmental laws now existing, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, 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 M-3 attached hereto, setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the Due 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 M-4 attached hereto, setting forth,
among other things, as of the close of business on the Due Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds and Liquidation Expenses, both for 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": With respect to any Certificate, a
Certificateholder; with respect to any Lower-Tier Regular Interest or Loan REMIC
Regular Interest, the Trustee; and with respect to any Loan REMIC Residual
Interest, the Depositor or its assignee.
"Independent": When used with respect to any specified Person,
any such Person who (i) does not have any direct financial interest, or any
material indirect financial interest, in any of the Depositor, the Trustee, the
Servicer, the Special Servicer, any Borrower or Manager or any Affiliate
thereof, and (ii) is not connected with any such Person thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions.
"Independent Contractor": Either (i) any Person that would be
an "independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Servicer or the Special Servicer shall be
considered to be an Independent Contractor under the definition in this clause
(i) unless an Opinion of Counsel (at the expense of the party seeking to be
deemed an Independent Contractor) addressed to the Servicer and the Trustee has
been delivered to the Trustee to that effect) or (ii) any other Person
(including the Servicer and the Special Servicer) if the Servicer, on behalf of
itself and the Trustee, has received an Opinion of Counsel (at the expense of
the party seeking to be deemed an Independent Contractor) to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a) of the Code) or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive,
fully registered physical form without interest coupons.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act, or an entity in which all the equity owners meet such
requirements.
"Insurance Proceeds": Proceeds of any fire and hazard
insurance policy, title policy or other insurance policy relating to a Mortgage
Loan (including any amounts paid by the Servicer pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution
Date and any Class of Certificates (other than the Class X, Class R and Class LR
Certificates), an amount equal to interest for the related Interest Accrual
Period at the Pass-Through Rate for such Class for such Distribution Date on the
related Certificate Balance outstanding during such Interest Accrual Period
(provided, that for interest accrual purposes any distributions in reduction of
Certificate Balance or reductions in Certificate Balance as a result of
allocations of Realized Losses on the Distribution Date occurring in an Interest
Accrual Period shall be deemed to have been made on the first day of such
Interest Accrual Period). The "Interest Accrual Amount" with respect to any
Distribution Date and the Class X Certificates shall be equal to interest for
the related Interest Accrual Period at the Pass-Through Rate for such Class for
such Distribution Date on the Class X Notional Balance outstanding during such
Interest Accrual Period (provided, that any reductions in the Class X Notional
Balance as a result of principal distributions on Mortgage Loans or Realized
Losses with respect to Mortgage Loans distributable or allocable on the
Lower-Tier Regular Interests on the Distribution Date occurring in an Interest
Accrual Period shall be deemed to have occurred on the first day of such
Interest Accrual Period). Calculations of interest due in respect of the
Certificates shall be made on the basis of a 360-day year consisting of twelve
30-day months.
"Interest Accrual Period": With respect to any Distribution
Date, the period which commences on the eleventh day of the month preceding the
month in which such Distribution Date occurs and ends on the tenth day of the
month in which such Distribution Date occurs. Interest for each Interest Accrual
Period is calculated based on a 360-day year consisting of twelve 30-day months.
"Interest Reserve Account": The trust account maintained by
the Trustee pursuant to Section 3.27, which shall be entitled "LaSalle National
Bank, as Trustee, in trust for Holders of Commercial Mortgage Asset Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, Interest
Reserve Account" and which must be an Eligible Account.
"Interest Shortfall": With respect to any Distribution Date
for any Class of Offered Certificates, any shortfall in the amount of interest
required to be distributed to such Class on such Distribution Date.
"Interested Person": As of any date of determination, the
Depositor, the Servicer, Special Servicer, the Trustee, the Fiscal Agent, any
Borrower, any manager of a Mortgaged Property, any Independent Contractor
engaged by the Special Servicer pursuant to Section 3.17, or any Person known to
a Responsible Officer of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section
5.02(c)(i)(A).
"IRS": The Internal Revenue Service, or any successor
thereto.
"Lead Lender": With respect to each Split Loan, the holder of
the note which by the terms of the related Co-Lender Agreement is entitled to
direct the administration of the Split Loan and has the sole authority to
exercise and enforce the lender's rights under the Loan Documents relating to
such Split Loan.
"Lead Lender Split Note": Any Split Note as to which the
related Co-Lender Agreement designates the Trustee as the "Lead Lender"
(including a Co-Lender Split Note as to which the Trustee subsequently becomes
the "Lead Lender" in accordance with the terms of the related Co-Lender
Agreement).
"Liquidation Expenses": Expenses incurred by the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent in connection with the
liquidation of any Mortgage Loan or property acquired in respect thereof
(including, without limitation, legal fees and expenses, committee or referee
fees, and, if applicable, brokerage commissions, and conveyance taxes) and any
Property Protection Expenses incurred with respect to such Mortgage Loan or such
property including interest thereon at the Advance Rate not previously
reimbursed from collections or other proceeds therefrom.
"Liquidation Fee": As defined in Section 3.12(b)(ii).
"Liquidation Proceeds": The amount (other than Insurance
Proceeds) received in connection with (i) the taking of a Mortgaged Property (or
portion thereof) by exercise of the power of eminent domain or condemnation,
(ii) the liquidation of a Specially Serviced Mortgage Loan through a trustee's
sale, foreclosure sale or otherwise or (iii) a sale of a Mortgage Loan or an REO
Property in accordance with Section 3.18 or Section 9.01.
"Loan Agreement": With respect to any Mortgage Loan, the loan
agreement, if any, between the Originator and the Borrower, pursuant to which
such Mortgage Loan was made.
"Loan Documents": With respect to any Mortgage Loan, the
documents executed or delivered in connection with the origination of such
Mortgage Loan or subsequently added to the related Mortgage File.
"Loan Number": With respect to any Mortgage Loan, the loan
number by which such Mortgage Loan was identified on the books and records of
the Depositor or any sub-servicer for the Depositor, as set forth in the
Mortgage Loan Schedule.
"Loan Payoff Notification Report": A report substantially in
the form of Exhibit M-7 attached hereto, setting forth, among other things, any
Mortgage Loan for which written notice of payoff has been received by the
Servicer as of the Determination Date immediately preceding the preparation of
such report.
Loan REMIC: Each of the DDRA REMIC, the Atlanta Marriott REMIC
and the Overland MHP REMIC.
Loan REMIC Declaration: Each of the DDRA REMIC Declaration,
the Atlanta Marriott REMIC Declaration and the Overland MHP REMIC Declaration.
Loan REMIC Regular Interest: Each of the DDRA REMIC Regular
Interest, the Atlanta Marriott REMIC Regular Interest and the Overland MHP REMIC
Regular Interest.
Loan REMIC Residual Interest: Each of the DDRA Residual
Interest, the Atlanta Marriott REMIC Residual Interest and the Overland MHP
REMIC Residual Interest.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to any documents relating to a Mortgage
Loan to receive revenues therefrom. Any Lock-Box Account shall be beneficially
owned for federal income tax purposes by the Person who is entitled to receive
the reinvestment income or gain thereon in accordance with the terms and
provisions of the related Mortgage Loan and Section 3.07, which Person shall be
taxed on all reinvestment income or gain thereon. The Servicer shall be
permitted to make withdrawals therefrom for deposit into the related Cash
Collateral Accounts in accordance with the terms of the related Mortgage Loan.
"Lock-Box Agreement": With respect to any Mortgage Loan, the
lock-box agreement, if any, between the Originator or the Mortgage Loan Seller
and the Borrower, pursuant to which the related Lock-Box Account, if any, may
have been established.
"Lock-out Period": With respect to any Mortgage Loan, the
period of time specified in the related Loan Documents during which voluntary
prepayments by the related Borrower are prohibited.
"Lower-Tier Regular Interests": The Class A-1-L, Class A-2-L,
Class A-3-L, Class A-4-L, Class X-X, Class C-L, Class D-L, Class E-L, Class F-L,
Class G-L, Class H-L, Class X-X, Class K-L, Class L-L, Class M-1-L and Class
M-2-L Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust
Fund consisting of the Mortgage Loans (exclusive of Excess Interest and
Repurchase Return of Premium Amounts), collections thereon (including
collections from the Loan REMIC Regular Interests), any REO Property acquired in
respect thereof and amounts held from time to time in the Collection Account and
the Distribution Account; provided, that the DDRA Loan, the Atlanta Marriott
Loan and the Overland MHP Loan (exclusive of Excess Interest, if any)
collections thereon and any related REO Property acquired in respect thereof
shall be held as assets of the related Loan REMIC, and the related Loan REMIC
Regular Interests shall be held as assets of the Lower-Tier REMIC.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan, the
Management Agreement, if any, by and between the Manager and the related
Borrower, or any successor Management Agreement between such parties.
"Manager": With respect to any Mortgage Loan, any property
manager for the related Mortgaged Properties.
"Maturity Date": With respect to each Mortgage Loan, the
Maturity Date as set forth on the Mortgage Loan Schedule.
"Monthly Payment": With respect to any Mortgage Loan (other
than any REO Mortgage Loan) and any Due Date, the scheduled monthly payment of
principal, if any, and interest at the Mortgage Rate, excluding any Balloon
Payment (but including any Assumed Scheduled Payment), which is payable by the
related Borrower on such Due Date under the related Note (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
3.29). With respect to an REO Mortgage Loan, the monthly payment that would
otherwise have been payable on the related Due Date had the related Note not
been discharged, determined as set forth in the preceding sentence and on the
assumption that all other amounts, if any, due thereunder are paid when due.
"Moody's": Xxxxx'x Investors Service, Inc., or its
successor in interest.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first lien on or first priority ownership interest in a Mortgaged
Property securing a Note.
"Mortgage File": With respect to any Mortgage Loan, the
mortgage documents listed in Section 2.01(i) through (xvi) pertaining to such
particular Mortgage Loan and any additional documents required to be added to
such Mortgage File pursuant to the express provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned to the Trustee pursuant to Section 2.01 and from time to time held in
the Trust Fund, the mortgage loans originally so transferred, assigned and held
being identified on the Mortgage Loan Schedule as of the Cut-off Date. Such term
shall include any REO Mortgage Loan, Specially Serviced Mortgage Loan or any
Mortgage Loan that has been defeased in whole or in part. Nothing herein shall
be deemed to override the provisions of the Co-Lender Agreements.
"Mortgage Loan Purchase and Sale Agreement": Either of the
CCA Mortgage Loan Purchase and Sale Agreement or the NHA Mortgage Loan
Purchase and Sale Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans included
in the Trust Fund as of the Closing Date being attached hereto as Exhibit B,
which list shall set forth the following information with respect to each
Mortgage Loan:
(a) the Loan Number;
(b) the Borrower and property names, city and state where
each related Mortgaged Property is located;
(c) the annual debt service;
(d) the original Mortgage Rate;
(e) the Revised Mortgage Rate, if applicable;
(f) the Maturity Date and, in the case of an ARD Loan,
the related Anticipated Repayment Date;
(g) the Stated Principal Balance as of the Cut-off Date
and, as applicable, the allocation of such balance to
each related Mortgaged Property;
(h) the Originator of such Mortgage Loan;
(i) whether the Mortgage Loan is an Actual/360 Mortgage
Loan;
(j) amount of Monthly Payment;
(k) original and remaining term to maturity;
(l) for Balloon Loans, remaining amortization term;
(m) whether the Mortgage Loan is secured by a ground
lease;
(n) whether the loan is a Credit Lease Loan, and if so,
the related tenant or guarantor;
(o) whether there exists a Residual Value Policy for
the Mortgage Loan;
(p) Debt Service Coverage Ratio and loan to value ratio;
(q) whether the loan is cross-defaulted;
(r) whether the loan is a Split Loan, and if so,
whether the Trustee is the Lead or Co-Lender;
(s) whether the Mortgage Loan has defeasance provisions;
(t) whether the Mortgage Loan is secured by a letter of
credit
(u) whether the Mortgage Loan has a lock box;
(v) original principal balance;
(w) the Due Date of the Mortgage Loan;
(x) property type;
(y) whether the loan is a Premium Loan, and if so, the
amount of the Premium;
(z) the Base Interest Rate of each Premium Loan; and
(aa) whether the Mortgage Loan requires the Borrower to
pay Rating Agency fees in connection with such
Mortgage Loan.
The Mortgage Loan Schedule shall also set forth the total of the amounts
described under clause (c) and (g) above for all of the Mortgage Loans. The
Mortgage Loan Schedule may also set forth, for selected Mortgage Loans, the net
operating income or debt service coverage ratio. The Mortgage Loan Schedule may
be in the form of more than one list, collectively setting forth all of the
information required.
"Mortgage Loan Sellers": CCA and NHA.
"Mortgage Pass-Through Rate": With respect to the Mortgage
Loans that provide for calculations of interest based on twelve months of 30
days each, the Mortgage Pass-Through Rate for any Interest Accrual Period is
equal to the Mortgage Rate thereof. The Mortgage Pass-Through Rate with respect
to the Actual/360 Mortgage Loans for any Interest Accrual Period, is an annual
rate equal to a fraction (expressed as a percentage), the numerator of which is
the product of (i) twelve (12) and (ii) the aggregate amount of interest accrued
in respect of such Actual/360 Mortgage Loan at the related Mortgage Rate during
the one-month accrual period ending immediately prior to the most recent related
Due Date and the denominator of which is the Stated Principal Balance of such
Actual/360 Mortgage Loan as of such Due Date; provided that for purposes of
calculating the numerator of the fraction described above, the aggregate amount
of interest accrued in respect of such Actual/360 Mortgage Loan during any such
one-month accrual period shall, with respect to such periods relating to Due
Dates occurring in January (except a January occurring in a leap year) or Due
Dates occurring in February, be decreased by the amount of any Withheld Amounts
to be transferred to the Interest Reserve Account in respect of such Actual/360
Mortgage Loan with respect to the related Distribution Date, and with respect to
such periods relating to Due Dates occurring in March, be increased by the
Withheld Amounts to be transferred from the Interest Reserve Account in respect
of such Actual/360 Loan with respect to the related Distribution Date.
"Mortgage Rate": With respect to each Mortgage Loan and any
one-month accrual period ending immediately prior to the most recent related Due
Date, the annual rate, not including any Excess Rate, at which interest accrues
on such Mortgage Loan during such one-month accrual period (in the absence of a
default), as set forth on the Mortgage Loan Schedule. The Mortgage Rate for
purposes of calculating the Mortgage Pass-Through Rate of any Mortgage Loan
shall be the Mortgage Rate of such Mortgage Loan without taking into account any
reduction in the interest rate by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers or a reduction in
interest or principal due to a modification pursuant to Section 3.29 hereof.
"Mortgaged Property": The underlying property securing a
Mortgage Loan, including any REO Property, consisting of a fee simple estate,
and, with respect to certain Mortgage Loans, a leasehold estate or both a
leasehold estate and a fee simple estate, or a leasehold estate in a portion of
the property and a fee simple estate in the remainder, in a parcel of land
improved by a commercial property, together with any personal property,
fixtures, leases and other property or rights pertaining thereto.
"Net Base Rate": As defined in Section 4.01(c)(i)(II).
"Net Default Interest": For any Distribution Date, an amount
equal to (i) the amount of the aggregate Default Interest received during the
preceding Collection Period, minus (ii) any portions thereof withdrawn from the
Collection Account pursuant to clause (iii) of Section 3.06.
"Net Income": With respect to any REO Property, all income
received in connection with such REO Property, less any operating expenses,
including, but not limited to, utilities, real estate taxes, property management
fees, insurance premiums, leasing commission fees, expenses for maintenance and
repairs and any other capital expenses directly related to such REO Property and
permitted to be incurred under this Agreement.
"Net Insurance Proceeds": Insurance Proceeds, to the extent
such proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Borrower in accordance with the express requirements
of the Mortgage or Note or other documents included in the Mortgage File or in
accordance with the Servicing Standard.
"Net Liquidation Proceeds": The Liquidation Proceeds received
with respect to any Mortgage Loan net of the amount of (i) Liquidation Expenses
incurred with respect thereto, (ii) with respect to proceeds received in
connection with the taking of a Mortgaged Property (or portion thereof) by the
power of eminent domain in condemnation, amounts required to be applied to the
restoration or repair of the related Mortgaged Property, and (iii) any funds
required by applicable law to be remitted to the applicable Borrower.
"Net Mortgage Pass-Through Rate": With respect to any Mortgage
Loan and any Distribution Date, the per annum rate equal to the Mortgage
Pass-Through Rate for such Mortgage Loan minus the Administrative Fee Rate.
"Net REO Proceeds": With respect to each REO Property, REO
Proceeds with respect to such REO Property net of any insurance premiums, taxes,
assessments and other costs and expenses permitted to be paid therefrom pursuant
to Section 3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf
of the Trust Fund, including any lease renewed or extended on behalf of the
Trust Fund if the Trust Fund has the right to renegotiate the terms of such
lease.
"NHA": Nomura Holding America Inc., a Delaware corporation.
"NHA Mortgage Loan Purchase and Sale Agreement": The Mortgage
Loan Purchase and Sale Agreement dated as of the Cut-off Date, by and between
the Depositor and NHA, a copy of which is attached hereto as Exhibit H-2.
"NOI Adjustment Worksheet": A report prepared by the Servicer
or the Special Servicer, as the case may be, substantially containing the
content described in Exhibit M-9 attached hereto, presenting the computations
made in accordance with the methodology described in said Exhibit M-9 to
"normalize" the full year net operating income and debt service coverage numbers
used in the other reports required by this Agreement, sent to the Trustee with
each annual operating statement for a Mortgaged Property pursuant to Section
3.13(d).
"Non-U.S. Person": A person that is not a U.S. Person.
"Nonrecoverable Advance": Any portion of an Advance proposed
to be made or previously made which has not been previously reimbursed to the
Servicer, the Trustee or the Fiscal Agent, as applicable, and which, in the good
faith business judgment of the Servicer, the Special Servicer, the Trustee or
the Fiscal Agent, as applicable, will not or, in the case of a proposed Advance,
would not be ultimately recoverable by the party that made or would make such
Advance from late payments, Insurance Proceeds, Liquidation Proceeds and other
collections on or in respect of the related Mortgage Loan and, if applicable,
from the Lead Lender with respect to an Other Note. The judgment or
determination by the Servicer, the Special Servicer, the Trustee or the Fiscal
Agent that it has made a Nonrecoverable Advance or that any proposed Advance, if
made, would constitute a Nonrecoverable Advance shall be evidenced in the case
of the Servicer or Special Servicer, by a certificate of a Servicing Officer
delivered to the Trustee, the Fiscal Agent, the Depositor, and in the case of
the Special Servicer, to the Servicer, and in the case of the Servicer, to the
Special Servicer and the Depositor and in the case of the Trustee or the Fiscal
Agent, by a certificate of a Responsible Officer of the Trustee or Fiscal Agent,
as applicable, delivered to the Depositor (and the Trustee and Special Servicer
if the certificate is from the Fiscal Agent), which in each case sets forth such
judgment or determination and the procedures and considerations of the Servicer,
Trustee or Fiscal Agent, as applicable, forming the basis of such determination
(including, but not limited to, information selected by the Person making such
judgment or determination in its good faith discretion, such as related income
and expense statements, rent rolls, occupancy status, property inspections,
Servicer, Trustee or Fiscal Agent inquiries, third party engineering and
environmental reports, and, in any event, an appraisal conducted by an
Independent MAI appraiser or any Updated Appraisal thereof conducted within the
past 12 months; copies of such documents to be included with the certificate of
a Servicing Officer or a Responsible Officer). The cost of any such appraisal or
Updated Appraisal obtained for making the determination of a Nonrecoverable
Advance shall be reimbursable as a Property Protection Expense. Any
determination of non-recoverability made by the Servicer may be made without
regard to any value determination made by the Special Servicer other than
pursuant to an Updated Appraisal. Notwithstanding the above, the Trustee and the
Fiscal Agent shall be entitled to rely upon any determination by the Servicer or
the Special Servicer that any Advance previously made is a Nonrecoverable
Advance or that any proposed Advance would, if made, constitute a Nonrecoverable
Advance (and with respect to a proposed P&I Advance, the Trustee and the Fiscal
Agent, as applicable, shall rely on the Servicer's determination that the
Advance would be a Nonrecoverable Advance if the Trustee or Fiscal Agent, as
applicable, determines that it does not have sufficient time to make such a
determination); provided, however, that the Special Servicer shall not be liable
to the Trust Fund or the Servicer if such Advance shall be non-recoverable.
"Note": With respect to any Mortgage Loan as of any date of
determination, the note or other evidence of indebtedness and/or agreements
evidencing the indebtedness of a Borrower under such Mortgage Loan, including
any amendments or modifications, or any renewal or substitution notes, as of
such date.
"Notice of Termination": Any of the notices given to the
Trustee by the Servicer, Special Servicer, Depositor or any Holder of a Class LR
Certificate pursuant to Section 9.01(c).
"NSI": As defined in Section 2.03(j)(ii).
"NSI Certificates": As defined in Section 2.03(j)(xi).
"Officers' Certificate": A certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a Vice President
(however denominated), the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer or
employee designated as a Servicing Officer customarily performing functions
similar to those performed by any of the above designated officers and also with
respect to a particular matter, any other officer or employee designated as a
Servicing Officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject, or an authorized
officer of the Depositor, and delivered to the Depositor, the Trustee, the
Servicer or the Special Servicer, as the case may be.
"Operating Statement Analysis": With respect to each Mortgage
Loan and REO Property, a report substantially containing the content described
in Exhibit M-8 attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be counsel for the Depositor, the Special Servicer or the
Servicer as the case may be, acceptable to the Trustee, except that any opinion
of counsel relating to (a) qualification of the Upper-Tier REMIC, Lower-Tier
REMIC or any Loan REMIC as a REMIC or the imposition of tax under the REMIC
Provisions on any income or property of any of such REMICs, (b) qualification of
the portion of the Trust Fund other than the Trust REMICs and the Loan REMICs as
a grantor trust under the Code, (c) compliance with the REMIC Provisions
(including application of the definition of "Independent Contractor") or (d) a
resignation of the Servicer pursuant to Section 6.04, must be an opinion of
counsel who is Independent of the Servicer.
"Originator": Any of (i) CCA, (ii) Nomura Asset Capital
Corporation or (iii) Bloomfield Acceptance Company, LLC.
"Other Mortgage Loan": Each mortgage loan related to an
Other Note.
"Other Note": With respect to each Split Loan, each note
that is not a part of the Trust Fund.
"Other Servicer": With respect to each Other Note, the
servicer of such Other Note.
"Other Special Servicer": With respect to each Other Note,
the special servicer of such Other Note.
"Other Trust Fund": As defined in Section 2.01(b).
"Other Trustee": As defined in Section 2.01(b).
"Overland MHP Loan": The Mortgage Loan identified as Loan
No. 225 on the Mortgage Loan Schedule.
"Overland MHP REMIC Declaration": That certain REMIC
Declaration dated as of March 11, 1999 with respect to the Overland MHP Loan.
"Overland MHP REMIC Regular Interest": The uncertificated
regular interest, within the meaning of Code Section 860G(a)(1), in the Overland
MHP REMIC issued pursuant to the Overland MHP REMIC Declaration.
"Overland MHP REMIC Residual Interest": The uncertificated
residual interest, within the meaning of Code Section 860G(a)(2), in the
Overland MHP REMIC issued pursuant to the Overland MHP REMIC Declaration.
"Overland MHP REMIC": The REMIC constituted by the Overland
MHP Loan.
"P&I Advance": As to any Mortgage Loan, any advance made by
the Servicer, the Trustee or the Fiscal Agent pursuant to Section 4.06. Each
reference to the payment or reimbursement of a P&I Advance shall be deemed to
include, whether or not specifically referred to and without duplication,
payment or reimbursement of any unpaid interest thereon at the Advance Rate from
and including the date of the making of such P&I Advance through and including
the date of payment or reimbursement.
"Pass-Through Rate": With respect to each Class of
Certificates (other than the Class R and Class LR Certificates), the
Pass-Through Rate for such Class as set forth below:
Class Pass-Through Rate
----- -----------------
Class A-1 Class A-1 Pass-Through Rate
Class A-2 Class A-2 Pass-Through Rate
Class A-3 Class A-3 Pass-Through Rate
Class A-4 Class A-4 Pass-Through Rate
Class X Class X Pass-Through Rate
Class B Class B Pass-Through Rate
Class C Class C Pass-Through Rate
Class D Class D Pass-Through Rate
Class E Class E Pass-Through Rate
Class F Class F Pass-Through Rate
Class G Class G Pass-Through Rate
Class H Class H Pass-Through Rate
Class J Class J Pass-Through Rate
Class K Class K Pass-Through Rate
Class L Class L Pass-Through Rate
Class M-1 Class M-1 Pass-Through Rate
Class M-2 Class M-2 Pass-Through Rate
"Paying Agent": The paying agent appointed pursuant to
Section 5.04.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Certificate (except the Class R and Class
LR Certificates), the percentage interest is equal to the initial denomination
of such Certificate divided by the initial Certificate Balance or Class X
Notional Balance, as applicable, of such Class of Certificates. With respect to
any Class R or Class LR Certificate, the percentage interest is set forth on the
face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities payable on demand or having a scheduled maturity on or
before the Business Day preceding the date upon which such funds are required to
be drawn, regardless of whether issued by the Depositor, the Servicer, the
Trustee or any of their respective Affiliates and having at all times the
required ratings, if any, provided for in this definition, unless each Rating
Agency shall have confirmed in writing to the Servicer that a lower rating would
not, in and of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates:
(i) obligations of, or obligations fully guaranteed as
to 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 of America
including, without limitation, obligations of: the
U.S. Treasury (all direct or fully guaranteed
obligations), the Farmers Home Administration
(certificates of beneficial ownership), the General
Services Administration (participation
certificates), the U.S. Maritime Administration
(guaranteed Title XI financing), the Small Business
Administration (guaranteed participation
certificates and guaranteed pool certificates), the
U.S. Department of Housing and Urban Development
(local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed
transit bonds); provided, however, that the
investments described in this clause must (A) have
a predetermined fixed dollar of principal due at
maturity that cannot vary or change, (B) if such
investments have a variable rate of interest, such
interest rate must be tied to a single interest
rate index plus a fixed spread (if any) and must
move proportionately with that index, and (C) such
investments must not be subject to liquidation
prior to their maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States
government sponsored agencies: Federal Home Loan
Mortgage Corp. (debt obligations), the Farm Credit
System (consolidated systemwide bonds and notes),
the Federal Home Loan Banks (consolidated debt
obligations), the Federal National Mortgage
Association (debt obligations), the Student Loan
Marketing Association (debt obligations), the
Financing Corp. (debt obligations), and the
Resolution Funding Corp. (debt obligations);
provided, however, that the investments described
in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot
vary or change, (B) if such investments have a
variable rate of interest, such interest rate must
be tied to a single interest rate index plus a
fixed spread (if any) and must move proportionately
with that index, and (C) such investments must not
be subject to liquidation prior to their maturity;
(iv) federal funds, unsecured certificates of deposit,
time or similar deposits, bankers' acceptances and
repurchase agreements, with maturities of not more
than 365 days, of any bank, the short term
obligations of which are rated in the highest short
term rating category by each Rating Agency (or, if
not rated by Xxxxx'x or S&P, otherwise acceptable
to Xxxxx'x or S&P, respectively, as confirmed in
writing that such investment would not, in and of
itself, result in a downgrade, qualification or
withdrawal of the then-current ratings assigned to
the Certificates); provided, however, that the
investments described in this clause must (A) have
a predetermined fixed dollar of principal due at
maturity that cannot vary or change, (B) if such
investments have a variable rate of interest, such
interest rate must be tied to a single interest
rate index plus a fixed spread (if any) and must
move proportionately with that index, and (C) such
investments must not be subject to liquidation
prior to their maturity;
(v) insured deposits in, or certificates of deposit of,
or bankers' acceptances issued by, any bank or
trust company, savings and loan association or
savings bank, the short term obligations of which
are rated in the highest short term rating category
by each Rating Agency (or, if not rated by Xxxxx'x
or S&P, otherwise acceptable to Xxxxx'x or S&P,
respectively, as confirmed in writing that such
investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates);
provided, however, that the investments described
in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot
vary or change, (B) if such investments have a
variable rate of interest, such interest rate must
be tied to a single interest rate index plus a
fixed spread (if any) and must move proportionately
with that index, and (C) such investments must not
be subject to liquidation prior to their maturity;
(vi) debt obligations with maturities of not more than
365 days rated by each Rating Agency (or, if not
rated by Xxxxx'x or S&P, otherwise acceptable to
Xxxxx'x or S&P, respectively, as confirmed in
writing that such investment would not, in and of
itself, result in a downgrade, qualification or
withdrawal of the then-current ratings assigned to
the Certificates) in its highest long-term
unsecured rating category; provided, however, that
the investments described in this clause must (A)
have a predetermined fixed dollar of principal due
at maturity that cannot vary or change, (B) if such
investments have a variable rate of interest, such
interest rate must be tied to a single interest
rate index plus a fixed spread (if any) and must
move proportionately with that index, and (C) such
investments must not be subject to liquidation
prior to their maturity;
(vii) commercial paper (including both
non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or
on a specified date not more than one year after
the date of issuance thereof) with maturities of
not more than 365 days and that is rated by each
Rating Agency (or, if not rated by Xxxxx'x or S&P,
otherwise acceptable to Xxxxx'x or S&P,
respectively, as confirmed in writing that such
investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates)
in its highest short-term unsecured debt rating;
provided, however, that the investments described
in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot
vary or change, (B) if such investments have a
variable rate of interest, such interest rate must
be tied to a single interest rate index plus a
fixed spread (if any) and must move proportionately
with that index, and (C) such investments must not
be subject to liquidation prior to their maturity;
(viii) the Federated Prime Obligation Money Market Fund
(the "Fund") so long as the Fund is rated by each
Rating Agency in its highest short-term unsecured
debt ratings category (or, if not rated by Xxxxx'x
or S&P, otherwise acceptable to Xxxxx'x or S&P,
respectively, as confirmed in writing that such
investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates);
and
(ix) any other demand, money market or time deposit,
demand obligation or any other obligation, security
or investment, provided that each Rating Agency has
confirmed in writing to the Servicer, Special
Servicer or Trustee, as applicable, that such
investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates;
provided, however, that, with respect to clause (ix) above, in the judgment of
the Servicer, such instrument qualifies as a "cash flow investment" pursuant to
Code Section 860G(a)(6) earning a passive return in the nature of interest and
provided, further that no instrument or security shall be a Permitted Investment
if (i) such instrument or security evidences a right to receive only interest
payments or (ii) the right to receive principal and interest payments derived
from the underlying investment provides a yield to maturity in excess of 120% of
the yield to maturity at par of such underlying investment.
"Permitted Transferee": With respect to a Residual Interest,
any Person or agent thereof other than (a) a Disqualified Organization, (b) any
other Person so designated by the Certificate Registrar based upon an Opinion of
Counsel (prepared at the expense of such Person or the Person requesting the
Transfer) to the effect that the Transfer of an Ownership Interest in any
Residual Interest to such Person may cause the Upper-Tier REMIC, Lower-Tier
REMIC, or any Loan REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding, (c) a Person that is a Disqualified Non-U.S.
Person and (d) a Plan or any Person investing the assets of a Plan.
"Person": Any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Placement Agents": Any placement agents retained by the
Depositor with respect to a proposed private sale of the Private Certificates.
"Plan": As defined in Section 5.02(k).
"Premium": With respect to each Premium Loan, the amount by
which the face of the related Note is less than the amount advanced to the
Borrower.
"Premium Loan Report": A report substantially in the form of
Exhibit M-13 attached hereto, setting forth certain information, on a monthly
basis, on the Premium Loans.
"Premium Loans": The Mortgage Loans identified as Premium
Loans on the Mortgage Loan Schedule.
"Prepayment Assumption": The assumption that each ARD Loan
prepays on its Anticipated Repayment Date and that each other Mortgage Loan does
not prepay prior to its respective Maturity Date.
"Prepayment Interest Excess": With respect to any Distribution
Date and any Mortgage Loan that was subject to a Principal Prepayment during the
related Collection Period, which Principal Prepayment was applied to such
Mortgage Loan following the Due Date in such Collection Period, the amount of
interest accrued on the amount of such Principal Prepayment during the period
from and after such Due Date, to the extent collected from the related Borrower.
"Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount of any shortfall in collections of interest
(adjusted to the applicable Net Mortgage Pass-Through Rate plus the Trustee Fee
Rate) resulting from a Principal Prepayment on such Mortgage Loan during the
related Collection Period and prior to the related Due Date.
"Prepayment Premium": Payments received on a Mortgage Loan as
the result of a Principal Prepayment thereon, not otherwise due thereon in
respect of principal or interest, including any Return of Premium Amount but
excluding any Repurchase Return of Premium Amount.
"Prepayment Premium Discount Rate": As defined in Section
4.01(c)(i)(I).
"Principal Allocation Fraction": As defined in Section
4.01(c)(i)(I).
"Principal Distribution Amount": For any Distribution Date
will be equal to the sum of:
(i) the principal component of all scheduled Monthly
Payments (other than Balloon Payments) due on the
Mortgage Loans on or (to the extent not previously
advanced) before the related Due Date and are
either received during the relevant Collection
Period (or received as late payments after the end
of such Collection Period, but prior to the close
of business on the Business Day prior to the
related Servicer Remittance Date) or advanced for
such Distribution Date;
(ii) the principal component of all Assumed Scheduled
Payments, which are due or deemed due, as the case
may be, on or (to the extent not previously advanced)
before the related Due Date and are either received
during the relevant Collection Period or advanced for
such Distribution Date;
(iii) the Stated Principal Balance of each Mortgage Loan
that was, during the related Collection Period,
repurchased from the Trust Fund in connection with
the breach of a representation or warranty pursuant
to Section 2.03 or purchased from the Trust Fund
pursuant to Section 9.01;
(iv) the portion of Unscheduled Payments allocable to
principal of any Mortgage Loan that was liquidated
during the related Collection Period;
(v) the principal component of all Balloon Payments and,
to the extent not included in the preceding clauses,
any other principal payment on any Mortgage Loan
received on or after the Maturity Date thereof, to
the extent received during the related Collection
Period;
(vi) to the extent not included in the preceding clauses
(iv) or (v), all other Principal Prepayments received
in the related Collection Period; and
(vii) to the extent not included in the preceding clauses,
any other full or partial recoveries in respect of
principal, including Net Insurance Proceeds, Net
Liquidation Proceeds and Net REO Proceeds received in
the related Collection Period;
provided that, the amounts described in clauses (i) through (vi) shall be net of
any reimbursement for related outstanding P&I Advances allocable to principal.
The principal component of the amounts set forth above shall be determined in
accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by the
Borrower on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing the full
amount of scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment other than any amount paid in connection
with the release of the related Mortgaged Property through defeasance.
"Private Certificates": The Class X, Class F, Class G, Class
H, Class J, Class K, Class L, Class M-1, Class M-2, Class R and Class LR
Certificates.
"Private Global Certificate": The Rule 144A Global
Certificates with respect to the Class F, Class G, Class H, Class J, Class K,
Class L, Class M-1 and Class X Certificates if and so long as such class of
Certificates is registered in the name of a nominee of the Depository.
"Property Advance": As to any Mortgage Loan, any advance made
by the Servicer (or, with respect to the Co-Lender Split Notes, the Other
Servicer), Special Servicer, the Trustee or the Fiscal Agent in respect of
Property Protection Expenses (including any reimbursements to any Other Servicer
on account of the Trust Fund's pro rata portion of any Property Advance made by
such Other Servicer on account of a Split Note) or any expenses incurred to
protect, preserve and enforce the security for a Mortgage Loan or taxes and
assessments or insurance premiums or as a result of expenses incurred relating
to a breach of a representation, warranty or covenant, pursuant to Section
2.03(d), 2.03(e), 3.04 or Section 3.24, as applicable, or any other expense
specified as a Property Advance herein. Each reference to the payment or
reimbursement of a Property Advance shall be deemed to include, whether or not
specifically referred to, payment or reimbursement of any unpaid interest
thereon at the Advance Rate from and including the date of the making of such
Advance through and including the date of payment or reimbursement.
"Property Protection Expenses": All customary, reasonable and
necessary "out of pocket" costs and expenses incurred by or on behalf of the
Servicer or Special Servicer in connection with the servicing of a Mortgage Loan
which are "unanticipated," within the meaning of Treasury Regulations Section
1.860G-1(b)(iii), or any such costs and expenses incurred in connection with the
administration of any REO Property, including, but not limited to, the cost of
(a) the preservation, insurance, restoration, protection and management of a
Mortgaged Property, including the cost of any "forced placed" insurance policy
purchased by the Servicer to the extent such cost is allocable to a particular
Mortgaged Property that the Servicer, or the Special Servicer is required to
cause to be insured pursuant to Section 3.08, (b) obtaining any Insurance
Proceeds or any Liquidation Proceeds, (c) any enforcement or judicial
proceedings with respect to a Mortgaged Property or Mortgage Loan, including,
without limitation, foreclosures, (d) any Updated Appraisal or other appraisal
and (e) the operation, management, maintenance and liquidation of any REO
Property, including, without limitation, appraisals. Notwithstanding anything to
the contrary, "Property Protection Expenses" shall not include allocable
overhead of the Servicer or the Special Servicer, such as costs for office
space, office equipment, supplies and related expenses, employee salaries and
related expenses and similar internal costs and expenses.
"Prospectus": The Depositor's Prospectus Supplement dated
March 19, 1999 relating to the Public Certificates.
"Public Certificates": The Class A-1, Class A-2, Class A-3,
Class A-4, Class B, Class C, Class D and Class E Certificates.
"Qualified Institutional Buyer": A qualified institutional
buyer within the meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance
company or security or bonding company qualified to write the related insurance
policy in the relevant jurisdiction which shall have a claims paying ability of
"AA" or better by S&P and an insurance financial strength rating of "A2" or
better by Xxxxx'x, (ii) in the case of public liability insurance policies
required to be maintained with respect to REO Properties in accordance with
Section 3.08(a), shall have a claims paying ability of "A" or better by S&P and
an insurance financial strength rating of "A2" or better by Xxxxx'x and (iii) in
the case of the fidelity bond and the errors and omissions insurance required to
be maintained pursuant to Section 3.08(c), shall have a claims paying ability
rated by each Rating Agency no lower than two ratings categories (without regard
to pluses or minuses or numeric qualifications) lower than the highest rating of
any outstanding Class of Certificates from time to time, but in no event lower
than "BBB" by S&P and an insurance financial strength rating of "A2" by Xxxxx'x,
unless in any such case each of the Rating Agencies has confirmed in writing
that obtaining the related insurance from an insurance company that is not rated
by each of the Rating Agencies (subject to the foregoing exceptions) or that has
a lower claims-paying ability than such requirements shall not result, in and of
itself, in a downgrade, qualification or withdrawal of the then-current ratings
by such Rating Agency to any Class of Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified
mortgage" within the meaning of Code Section 860G(a)(3) of the Code (but without
regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage), or any substantially similar
successor provision.
"Rated Final Distribution Date": January 17, 2032, the first
Distribution Date occurring at least two years after the latest Maturity Date of
any of the Mortgage Loans.
"Rating Agency": Either of S&P or Xxxxx'x. References herein
to the highest long-term unsecured debt rating category of a Rating Agency shall
mean "AAA" with respect to S&P and "Aaa" with respect to Xxxxx'x and in the case
of any other rating agency shall mean such highest rating category or better
without regard to any plus or minus or numerical qualification.
"Real Property": Land or improvements thereon such as
buildings or other inherently permanent structures thereon (including items that
are structural components of the buildings or structures), in each such case as
such terms are used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date shall
mean the amount, if any, by which the aggregate Certificate Balance of the
Certificates after giving effect to distributions made on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans that will
be outstanding immediately following such Distribution Date.
"Reassignment of Assignment of Leases, Rents and Profits":
As defined in Section 2.01(a)(viii).
"Record Date": With respect to each Distribution Date, the
close of business on the tenth day of the month in which such Distribution Date
occurs or, if such day is not a Business Day, the preceding Business Day. For
all purposes other than Section 4.01 hereof, the Record Date with respect to the
Distribution Date occurring on April 19, 1999 shall be the Closing Date.
"Reference Pass-Through Rate": As defined in Section
4.01(c)(i)(II).
"Regular Certificates": The Class A-1, Class A-2, Class A-3,
Class A-4, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M-1 and Class M-2 Certificates.
"Regulation D": Regulation D under the Act.
"Related Certificate" and "Related Lower-Tier Regular
Interest": For any Class or Classes of Lower-Tier Regular Interests, the related
Class of Certificates set forth below and for any Class of Certificates (other
than the Class X, Class R and Class LR), the related Class of Lower-Tier Regular
Interest set forth below:
Related Lower-Tier
Related Certificate Regular Interest
------------------- ----------------
Class A-1 Class A-1-L Interest
Class A-2 Class A-2-L Interest
Class A-3 Class A-3-L Interest
Class A-4 Class A-4-L Interest
Class B Class X-X Interest
Class C Class C-L Interest
Class D Class D-L Interest
Class E Class E-L Interest
Class F Class F-L Interest
Class G Class G-L Interest
Class H Class H-L Interest
Class J Class X-X Interest
Class K Class K-L Interest
Class L Class L-L Interest
Class M-1 Class M-1-L Interest
Class M-2 Class M-2-L Interest
"REMIC": A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations (including any applicable proposed regulations) and
rulings 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, which
income, subject to the terms and conditions of that Section of the Code in its
present form, does not include:
(i) except as provided in Section 856(d)(4) or (6) of
the Code, any amount received or accrued, directly
or indirectly, with respect to such REO Property,
if the determination of such amount depends in
whole or in part on the income or profits derived
by any Person from such property (unless such
amount is a fixed percentage or percentages of
receipts or sales and otherwise constitutes Rents
from Real Property);
(ii) any amount received or accrued, directly or
indirectly, from any Person if the Trust Fund owns
directly or indirectly (including by attribution) a
ten percent or greater interest in such Person
determined in accordance with Sections 856(d)(2)(B)
and (d)(5) of the Code;
(iii) any amount received or accrued, directly or
indirectly, with respect to such REO Property if any
Person Directly Operates such REO Property;
(iv) any amount charged for services that are not
customarily furnished in connection with the rental
of property to tenants in buildings of a similar
class in the same geographic market as such REO
Property within the meaning of Treasury Regulations
Section 1.856-4(b)(1) (whether or not such charges
are separately stated); and
(v) rent attributable to personal property unless such
personal property is leased under, or in connection
with, the lease of such REO Property and, for any
taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or
accrued under, or in connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Mortgage Loan": Any Mortgage Loan as to which the
related Mortgaged Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the
related REO Mortgage Loan, all revenues received by the Special Servicer with
respect to such REO Property or REO Mortgage Loan which do not constitute
Liquidation Proceeds (including, with respect to any Co-Lender Split Note as to
which the Lead Lender thereof has foreclosed upon the related Mortgaged
Property, any amount remitted by the Lead Lender pursuant to the related
Co-Lender Agreement constituting revenues received with respect to such
foreclosed Mortgaged Property, which do not constitute Liquidation Proceeds).
"REO Property": A Mortgaged Property title to which has been
acquired by the Special Servicer on behalf of the Trust Fund through
foreclosure, deed in lieu of foreclosure or otherwise.
"REO Status Report": A report substantially containing the
content described in Exhibit M-5 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 Due 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 any 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 date of determination (including any prepared internally by the Special
Servicer).
"Repurchase Price": With respect to any Mortgage Loan to be
repurchased pursuant to Section 2.03(d), 2.03(e) or 9.01, or any Specially
Serviced Mortgage Loan or any REO Mortgage Loan to be sold or repurchased
pursuant to Section 3.18, an amount, calculated by the Servicer, equal to:
(i) the outstanding principal balance of such Mortgage
Loan as of the Due Date as to which a payment was
last made by the Borrower (less any outstanding P&I
Advances previously made on account of principal);
plus
(ii) accrued interest up to the Due Date in the month
following the month in which such repurchase occurs
(less any outstanding P&I Advances previously made on
account of interest); plus
(iii) the amount of any unreimbursed Advances (with
interest thereon) and any unreimbursed Servicing
Compensation (with interest thereon) and Special
Servicing Compensation relating to such Mortgage Loan
(with interest thereon); plus
(iv) in the event that the Mortgage Loan is required to
be repurchased pursuant to Sections 2.03(d) or
2.03(e), any expenses reasonably incurred or to be
incurred by the Servicer, the Special Servicer or
the Trustee in respect of the breach or defect
giving rise to the repurchase obligation, including
any expenses arising out of the enforcement of the
repurchase obligation; plus
----
(v) with respect to each Mortgage Loan that is a Premium
Loan, any unearned Premium or other amount that would
have been due from the related Borrower if such
Premium Loan were prepaid.
"Repurchase Price Return of Premium Distribution Account": The
trust account or accounts created and maintained as a separate trust account or
accounts by the Trustee pursuant to Section 3.05(e), which shall be entitled
"LaSalle National Bank, as Trustee, in trust for Holders of Commercial Mortgage
Asset Trust, Commercial Mortgage Pass-Through Certificates, Series 0000-X0,
Xxxxxxxxxx Price Return of Premium Distribution Account" and which must be an
Eligible Account. The Repurchase Price Return of Premium Distribution Account
shall not be an asset of the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier
REMIC formed hereunder.
"Repurchase Return of Premium Amount": With respect to any
Mortgage Loan required to be repurchased pursuant to Section 2.03(d), 2.03(e),
3.18(a) or 9.01, the Return of Premium Amount described in clause (v) of the
definition of Repurchase Price.
"Request for Release": A request for a release signed by a
Servicing Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan, reserve
accounts, if any, established pursuant to the Mortgage or the Loan Agreement and
any Escrow Account. Any Reserve Account may be a sub-account of a related Cash
Collateral Account. Any Reserve Account shall be beneficially owned for federal
income tax purposes by the Person who is entitled to receive the reinvestment
income or gain thereon in accordance with the terms and provisions of the
related Mortgage Loan and Section 3.07, which Person shall be taxed on all
reinvestment income or gain thereon. The Servicer shall be permitted to make
withdrawals therefrom for deposit into the related Cash Collateral Account, if
applicable, or the Collection Account or for the purposes set forth under the
related Mortgage Loan.
"Residual Interest": Any Class R or Class LR Certificate
or any Loan REMIC Residual Interest.
"Residual Value Policy": With respect to the credit leases
related to each of the Credit Lease Loans, the related insurance policy insuring
against the diminution in value of the related Mortgaged Properties.
"Responsible Officer": Any officer of the Asset-Backed
Securities Trust Services Group of the Trustee or the Fiscal Agent (and, in the
event that the Trustee is the Certificate Registrar or the Paying Agent, of the
Certificate Registrar or the Paying Agent, as applicable) assigned to the
Corporate Trust Office with direct responsibility for the administration of this
Agreement and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject, and, in the case of any certification
required to be signed by a Responsible Officer, such an officer whose name and
specimen signature appears on a list of corporate trust officers furnished to
the Servicer by the Trustee and the Fiscal Agent, as such list may from time to
time be amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Return of Premium Amount": In the event of a prepayment or
repurchase of a Premium Loan, any amount paid that is (or would have been had
the Mortgage Loan been repaid rather than repurchased) applied by the Servicer
(in accordance with Section 3.28(d) hereof) to the unamortized portion of the
Premium, which will constitute the Repurchase Return of Premium Amount.
"Revised Mortgage Rate": With respect to the ARD Loans, the
increased interest rate after the Anticipated Repayment Date (in the absence of
a default) for each ARD Loan, as calculated and as set forth in the related ARD
Loan and the Mortgage Loan Schedule.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificate": Each of the Class F, Class G,
Class H, Class J, Class K, Class L, Class M-1, Class M-2 and Class X
Certificates issued as such on or subsequent to the Closing Date.
"S&P": Standard & Poor's Rating Services, a Division of the
XxXxxx-Xxxx Companies, or its successor in interest.
"Securities Legend": With respect to each Residual Certificate
or any Individual Certificate, the legend set forth in, and substantially in the
form of, Exhibit G hereto.
"Sequential Certificates": The Classes of Certificates other
than the Class X, Class R and Class LR Certificates.
"Servicer": First Union National Bank, a national banking
association, or any successor Servicer appointed as herein provided.
"Servicer Event of Default": As defined in Section 7.01(a).
"Servicer Fee Amount": With respect to each sub-servicer and
any date of determination, the aggregate of the products of, for each Mortgage
Loan serviced by such sub-servicer, (a) the principal balance of such Mortgage
Loan serviced as of the end of the immediately preceding Collection Period
multiplied by (b) the sub-servicing fee rate specified in the related
sub-servicing agreement for such Mortgage Loan. With respect to the Servicer and
any date of determination, the aggregate of the products of, for each Mortgage
Loan, (a) the principal balance of such Mortgage Loan as of the end of the
immediately preceding Collection Period multiplied by (b) the difference between
the Servicing Fee Rate for such Mortgage Loan and the sub-servicing fee rate (if
any) applicable to such Mortgage Loan as specified in the related sub-servicing
agreement related to such Mortgage Loan.
"Servicer Prepayment Interest Shortfall": With respect to any
Distribution Date, the aggregate amount of Prepayment Interest Shortfalls
incurred as a result of Principal Prepayments on the Mortgage Loans (other than
Mortgage Loans with terms that permit prepayments on a date other than a Due
Date and other than Specially Serviced Mortgage Loans) less any Prepayment
Interest Excesses during the related Collection Period; provided, however, that
the aggregate amount of the Servicer Prepayment Interest Shortfall with respect
to any Collection Period shall not exceed the aggregate amount of Servicing Fees
attributable to all the Mortgage Loans for such Collection Period and the
investment income accruing on the related Principal Prepayments with respect to
such Collection Period.
"Servicer Remittance Date": With respect to any
Distribution Date, the Business Day preceding such Distribution Date.
"Servicer Remittance Report": A report prepared by the
Servicer and/or the Special Servicer in such media as may be agreed upon by the
Servicer, the Special Servicer and the Trustee containing such information
regarding the Mortgage Loans as will permit the Trustee to calculate the amounts
to be distributed pursuant to Section 4.01 and to furnish statements to
Certificateholders pursuant to Section 4.02, including information on the
outstanding principal balances of each Mortgage Loan specified therein, and
containing such additional information as the Servicer, the Special Servicer and
the Trustee may from time to time agree.
"Servicing Compensation": With respect to any Distribution
Date, the related Servicing Fee and any other fees, charges or other amounts
payable to the Servicer on such Distribution Date.
"Servicing Fee": With respect to each Mortgage Loan and for
any Distribution Date, an amount equal to the product of (i) one-twelfth of the
Servicing Fee Rate and (ii) the Stated Principal Balance of such Mortgage Loan
(which amount does not include any balance on any Other Mortgage Loans) as of
the day immediately preceding such Distribution Date. The Servicing Fee shall be
a portion of the Administrative Fee.
"Servicing Fee Rate": A rate equal to 0.050% per annum.
"Servicing Officer": Any officer or employee of the Servicer,
or the Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Mortgage Loans or this Agreement and also,
with respect to a particular matter, any other officer or employee to whom such
matter is referred because of such officer's or employee's knowledge of and
familiarity with the particular subject, and, in the case of any certification
required to be signed by a Servicing Officer, such an officer or employee whose
name and specimen signature appears on a list of servicing officers furnished to
the Trustee by the Servicer, or the Special Servicer, as applicable, as such
list may from time to time be amended.
"Servicing Standard": With respect to the Servicer or the
Special Servicer shall mean the servicing of the Mortgage Loans and, if
applicable, administering any REO Property by the Servicer or the Special
Servicer, subject to the servicing by Other Servicers and Other Special
Servicers of Other Mortgage Loans, solely in the best interests of and for the
benefit of all of the Certificateholders and, in the case of each Lead Lender
Split Note, in the best interests of and for the benefit of the holder of the
Other Note or Other Notes as well (as determined by the Servicer or the Special
Servicer in the exercise of its reasonable judgment), and in accordance with
applicable law, the specific terms of the respective Mortgage Loans, this
Agreement, to the extent expressly applicable, and, in the case of each Split
Note, the related Co-Lender Agreement, and to the extent not inconsistent with
the foregoing, in the same manner in which, and with the same care, skill,
prudence and diligence with which, it (i) services and administers similar
mortgage loans comparable to the Mortgage Loans (and, in the case of the Special
Servicer, real properties comparable to the REO Properties) and held for other
similar third-party portfolios, giving due consideration to customary and usual
standards and practices of prudent institutional commercial mortgage lenders
servicing their own loans and to the maximization of the recovery on such
Mortgage Loans (and, if applicable, REO Properties) on a net present value basis
or (ii) administers mortgage loans (and, in the case of the Special Servicer,
real properties comparable to the REO Properties) for its own account, whichever
standard is higher, but without regard to:
(i) any known relationship that the Servicer, the Special
Servicer, or any Affiliate of the Servicer or the
Special Servicer may have with any Borrower or any
other parties to this Agreement;
(ii) the ownership of any Certificate by the Servicer, the
Special Servicer or any Affiliate of the Servicer or
the Special Servicer, as applicable;
(iii) the Servicer's obligation to make Advances, or to
incur servicing expenses with respect to the
Mortgage Loans;
(iv) the Servicer's or the Special Servicer's right to
receive compensation for its services hereunder or
with respect to any particular transaction; or
(v) the ownership, or servicing or management for others,
by the Servicer or the Special Servicer, of any other
mortgage loans or properties (other than the Other
Mortgage Loans).
"Similar Law": As defined in Section 5.02(k) hereof.
"Special Servicer": Lennar Partners, Inc., a Florida
corporation, or its successor in interest, or any successor Special Servicer
appointed as provided in Section 3.25. In the event that at any time the
Servicer is also the Special Servicer hereunder, and the Servicer is terminated
or resigns as the Servicer hereunder, the Servicer shall be terminated as the
Special Servicer hereunder.
"Special Servicer Event of Default": As defined in Section
7.01(b).
"Special Servicer's Appraisal Reduction Amount Estimate":
As defined in the definition of Appraisal Reduction Amount.
"Special Servicing Compensation": With respect to any Mortgage
Loan, any of (i) the Special Servicing Fee, (ii) the Work Out Fee, (iii) the
Liquidation Fee and (iv) all other amounts due to the Special Servicer pursuant
to Section 3.12(a) and Section 3.12(b)(iii).
"Special Servicing Fee": With respect to each Specially
Serviced Mortgage Loan (other than a Mortgage Loan represented by a Co-Lender
Split Note) and REO Mortgage Loan (other than a Mortgage Loan represented by a
Co-Lender Split Note) and any Distribution Date, an amount equal to the product
of (i) one-twelfth of the Special Servicing Fee Rate and (ii) the Stated
Principal Balance of such Specially Serviced Mortgage Loan or, if such Mortgage
Loan is evidenced by a Lead Lender Split Note, the sum of the Stated Principal
Balance of such Mortgage Loan and the stated principal balance of the related
Other Mortgage Loan, in each case as of the day immediately prior to such
Distribution Date provided, however that if a Mortgage Loan is a Specially
Serviced Mortgage Loan or an REO Mortgage Loan for a portion, but not all, of
the related Interest Accrual Period with respect to such Distribution Date, then
the Special Servicing Fee shall be equal to (i) the product of (A) the actual
number of days in such Interest Accrual Period during which such Mortgage Loan
is a Specially Serviced Mortgage Loan or an REO Mortgage Loan, as the case may
be, (B) the Special Servicing Fee Rate and the (C) the Stated Principal Balance
of such Mortgage Loan or, if such Mortgage Loan is evidenced by a Lead Lender
Split Note, the sum of the Stated Principal Balance of such Mortgage Loan and
the stated principal balance of the related Other Mortgage Loan, in each case
immediately prior to the related Distribution Date, divided by (ii) 360. The
Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or
REO Mortgage Loan which is evidenced by a Lead Lender Split Note shall be paid
from the Collection Account and the Special Servicing Fee with respect to any
related Other Mortgage Loan shall be payable under the related Co-Lender
Agreement (which amount may be netted against amounts payable to the holder of
the Other Note).
"Special Servicing Fee Rate": A rate equal to 0.25% per
annum.
"Specially Serviced Mortgage Loan": Subject to Section
3.26, any Mortgage Loan with respect to which:
(i) the related Borrower has not made two consecutive
Monthly Payments (and has not cured at least one such
delinquency by the next Due Date);
(ii) the related Borrower has expressed to the Servicer an
inability to pay or a hardship in paying the Mortgage
Loan in accordance with its terms;
(iii) the Servicer has received notice that the Borrower
has become the subject of any bankruptcy, insolvency
or similar proceeding, admitted in writing the
inability to pay its debts as they come due or made
an assignment for the benefit of creditors;
(iv) the Servicer has received notice of a foreclosure or
threatened foreclosure of any lien on the Mortgaged
Property securing the Mortgage Loan;
(v) a default (A) of which the Servicer has notice
(other than a failure by the Borrower to pay
principal or interest) and (B) which materially and
adversely affects the interests of the
Certificateholders has occurred and remained
unremedied for the applicable grace period
specified in the Mortgage Loan (or, if no grace
period is specified, 60 days);
(vi) the Special Servicer proposes to commence foreclosure
or other work out arrangements; or
(vii) the related Borrower has failed to make a Balloon
Payment as and when due, unless the Servicer
reasonably believes (consistent with the Servicing
Standard) that the Balloon Payment will be paid
within 60 days of its Due Date;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(a) with respect to the circumstances described in clause
(i) above, when the Borrower thereunder has brought
the Mortgage Loan current and thereafter made three
consecutive full and timely Monthly Payments
(including pursuant to any work out of the Mortgage
Loan);
(b) with respect to the circumstances described in
clauses (ii), (iii), (iv) and (vi) above, when such
circumstances cease to exist in the good faith
judgment of the Servicer; or
(c) with respect to the circumstances described in clause
(v) and (vii) above, when such default is cured;
provided further, however, that at that time no circumstance identified in
clauses (i) through (vii) above exists that would cause the Mortgage Loan to
continue to be characterized as a Specially Serviced Mortgage Loan.
"Split Loans": The ACCOR Credit Lease Loan and the other
Mortgage Loans identified as Split Loans on the Mortgage Loan Schedule (Loan
Numbers 2, 4, 5, 6, 19, 39, 41, 42, 102, 121, 122, and 123) on the Mortgage Loan
Schedule, as to which each such Mortgage Loan is actually a portion of a
mortgage loan which is represented by two or more separate notes, the Split Note
and the Other Note or Other Notes.
"Split Note": With respect to each Split Loan, the Note
included in the Trust Fund.
"Startup Day": The day designated as such pursuant to
Section 2.06(a) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan,
at any date of determination, an amount equal to (a) the principal balance as of
the Cut-off Date of such Mortgage Loan (after application of all payments of
principal due in respect thereof on or before the Cut-off Date, whether or not
received), reduced (to not less than zero) by (b) the sum of (i) the principal
portion of each Monthly Payment due and Assumed Scheduled Payment deemed due on
such Mortgage Loan after the Cut-off Date to the extent received from the
Borrower or advanced by the Servicer, Trustee or Fiscal Agent and distributed to
Certificateholders or applied to any other payments (other than the
reimbursement of the principal portion of P&I Advances) required under this
Agreement on or prior to such date of determination, (ii) all voluntary and
involuntary principal prepayments, the principal component of a Balloon Payment
and also other unscheduled collections of principal received with respect to
such Mortgage Loan to the extent received from the Borrower or otherwise
collected and distributed to Certificateholders or applied to any other payments
(other than the reimbursement of the principal portion of P&I Advances) required
under this Agreement on or prior to such date of determination and (iii) any
principal forgiven by the Special Servicer and other principal losses realized
with respect to such Mortgage Loan as of the end of the Collection Period for
the most recent Distribution Date coinciding with or preceding such date of
determination. The Stated Principal Balance of any REO Mortgage Loan as of any
date of determination is equal to the Stated Principal Balance thereof
outstanding on the date on which such title is acquired, reduced (to not less
than zero) by the sum of (i) the principal portion of any P&I Advances made in
respect of such REO Mortgage Loan and distributed to Certificateholders on or
before such date and (ii) any Net REO Proceeds received and allocated to
principal on such REO Mortgage Loan to the extent distributed to
Certificateholders or applied to any other payments (other than the
reimbursement of the principal portion of P&I Advances) required under this
Agreement on or prior to such date of determination. The Stated Principal
Balance of a Specially Serviced Mortgage Loan or REO Mortgage Loan with respect
to which the Servicer or Special Servicer has made a Final Recovery
Determination during any Collection Period is zero commencing as of the
Distribution Date that corresponds to such Collection Period.
"Tax Returns": The federal income tax returns on IRS 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
separately on behalf of each Loan REMIC, the Upper-Tier REMIC and Lower-Tier
REMIC under the REMIC Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the
Certificateholders or filed with the IRS or any other governmental taxing
authority under any applicable provisions of federal, state or local tax laws.
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the
Trust Fund is terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of
assignment of any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date (other than interest accrued
prior to the Cut-off Date); (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's, the Special Servicer's and
the Trustee's rights under the insurance policies with respect to the Mortgage
Loans required to be maintained pursuant to this Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans; (viii) all assets deposited in the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Repurchase Price Return of Premium Distribution
Account and the Interest Reserve Account including reinvestment income; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase and Sale Agreements and the
Bloomfield Purchase Agreement; and (xi) the proceeds of any of the foregoing.
"Trust-Indemnified Party": As defined in Section 8.05(d).
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier
REMIC.
"Trustee": LaSalle National Bank, a nationally chartered bank,
in its capacity as trustee, or its successor in interest, or any successor
trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Trustee Fee Rate and (ii) the Stated Principal Balance of such Mortgage Loan as
of the day immediately prior to the related Distribution Date.
"Trustee Fee Rate": A rate equal to 0.002% per annum, which
constitutes part of the Administrative Fee Rate.
"Underwriters": Xxxxxxx, Xxxxx & Co., Xxxxxx Brothers Inc.,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and Nomura Securities
International, Inc.
"Unscheduled Payments": With respect to a Mortgage Loan and a
Collection Period, all Net Liquidation Proceeds and Net Insurance Proceeds
payable under such Mortgage Loan, the Repurchase Price of any Mortgage Loan that
is repurchased or purchased pursuant to Sections 2.03(d), 2.03(e) or 9.01, and
any other payments under or with respect to such Mortgage Loan not scheduled to
be made, including Principal Prepayments received by the Servicer, but excluding
Prepayment Premiums, during such Collection Period.
"Updated Appraisal": An appraisal of a Mortgaged Property or
REO Property, as the case may be, conducted subsequent to any appraisal
performed on or prior to the Cut-off Date by an appraiser selected by the
Special Servicer (or, the Servicer, with respect to appraisals performed in
connection with processing an assumption or making its determination of a
Nonrecoverable Advance) and who is an MAI, the costs of which shall be paid as a
Property Advance by the Servicer.
"Upper-Tier Distribution Account": The trust account or
accounts (i) created and maintained as a separate trust account or accounts by
the Trustee pursuant to Section 3.05(c), which shall be entitled "LaSalle
National Bank, as Trustee, in trust for Holders of Commercial Mortgage Asset
Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C1, Upper-Tier
Distribution Account" and which must be an Eligible Account or (ii) maintained
as a subaccount of the Distribution Account pursuant to Section 3.06(c).
"Upper-Tier REMIC": A segregated asset pool within the Trust
Fund consisting of the Lower-Tier Regular Interests and amounts held from time
to time in the Upper-Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations), created or organized in or under the laws of the United States,
any state or the District of Columbia, including any entity treated as a
corporation or partnership for federal income tax purposes, an estate whose
income is subject to United States federal income tax regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust, and one or more such U.S.
Persons have the authority to control all substantial decisions of such trust
(or, to the extent provided in applicable Treasury Regulations, certain trusts
in existence on August 20, 1996 which are eligible to elect to be treated as
U.S. Persons).
"Value City Credit Lease Loan": The Mortgage Loan secured by,
among other things, a Mortgaged Property subject to a Credit Lease having Value
City Department Stores, Inc., as credit tenant, and identified as Loan Number 60
on the Mortgage Loan Schedule.
"Voting Rights": The portion of the voting rights of all of
the Certificates that is allocated to any Certificate or Class of Certificates.
At all times during the term of this Agreement, the percentage of the Voting
Rights assigned to each Class shall be (a) 0%, in the case of the Class R and
Class LR Certificates, (b) 1% in the case of the Class X Certificates; (c) in
the case of any of the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M-1 and Class M-2 Certificates, a percentage equal to the product of (i)
99% multiplied by (ii) a fraction, the numerator of which is equal to the
aggregate outstanding Certificate Balance of any such Class and the denominator
of which is equal to the aggregate outstanding Certificate Balances of all
Classes of Certificates. The Voting Rights of any Class of Certificates shall be
allocated among Holders of Certificates of such Class in proportion to their
respective Percentage Interests, except that any Certificate beneficially owned
by the Depositor, the Servicer, the Special Servicer, any Borrower, the Trustee,
a Manager, or any of their respective Affiliates will be deemed not to be
outstanding for voting purposes; provided, however, that for purposes of
obtaining the consent of Certificateholders to an amendment to this Agreement,
any Certificate beneficially owned by the Servicer or Special Servicer or an
Affiliate thereof will be deemed to be outstanding, provided that such amendment
does not relate to compensation of the Servicer, Special Servicer or otherwise
benefit such entity or an Affiliate (other than solely in its capacity as
Certificateholder); and provided, further, that for purposes of obtaining the
consent of Certificateholders to any action proposed to be taken by the Special
Servicer with respect to a Specially Serviced Mortgage Loan, any Certificate
beneficially owned by the Servicer or an Affiliate will be deemed not to be
outstanding. The Certificates beneficially owned by the Special Servicer or an
Affiliate thereof shall be deemed outstanding for purposes of identifying the
Directing Holders. The Voting Rights of each Class of Certificates will be
deemed to be reduced on any day on which an Appraisal Reduction Amount is
allocated to such Class pursuant to Section 4.01(h). The Fixed Voting Rights
Percentage of the Class X Certificates shall be proportionally reduced upon the
allocation of Appraisal Reduction Amounts with respect to any component of such
Classes based on the amount of such reduction.
"Watch List": A report substantially containing the content
described in Exhibit M-6 attached hereto, setting forth, among other things, any
Mortgage Loan that is in jeopardy of becoming a Specially Serviced Mortgage
Loan.
"Weighted Average Net Mortgage Pass-Through Rate": With
respect to any Distribution Date, a per annum rate equal to the fraction
(expressed as a percentage), the numerator of which is the sum of the products
obtained by multiplying for each Mortgage Loan, (i) the Net Mortgage
Pass-Through Rate for such Mortgage Loan and (ii) the Stated Principal Balance
of such Mortgage Loan as of the day immediately preceding such Distribution
Date, and the denominator of which is the sum of the Stated Principal Balances
of all such Mortgage Loans immediately preceding such Distribution Date.
"Weighted Average Pass-Through Rate": With respect to any
Distribution Date, a fraction (expressed as a percentage), the numerator of
which is the sum of the products obtained by multiplying, with respect to each
Class of Sequential Certificates, (i) the Pass-Through Rate for such Class and
(ii) the Certificate Balance of such Class as of the first day of the related
Interest Accrual Period, and the denominator of which is the sum of the
Certificate Balances of the Classes of Sequential Certificates as of the first
day of such Interest Accrual Period (provided, in each case, any reductions in
Certificate Balance as a result of distributions or allocations of Realized
Losses to such Class occurring in an Interest Accrual Period shall be deemed to
have been made on the first day of such Interest Accrual Period).
"Withheld Amounts": As defined in Section 3.27(a).
"Work Out Fee": As defined in Section 3.12(b)(i).
SECTION 1.02. Certain Calculations
Unless otherwise specified herein, the following provisions
shall apply:
(a) All calculations of interest with respect to the
Mortgage Loans (other than the Actual/360 Mortgage Loans) and of Advances (other
than with respect to Actual/360 Mortgage Loans) provided for herein shall be
made on the basis of a 360-day year consisting of twelve 30-day months. All
calculations of interest and of Advances, in each case, with respect to the
Actual/360 Mortgage Loans, provided for herein shall be made as set forth in
such Mortgage Loans with respect to the calculation of the related Mortgage
Rate.
(b) Any Mortgage Loan payment is deemed to be received on
the date such payment is actually received by the Servicer or the Trustee;
provided, however, that for purposes of calculating distributions on the
Certificates, Principal Prepayments with respect to any Mortgage Loan are deemed
to be received on the date they are applied in accordance with Section 3.01(b)
to reduce the outstanding principal balance of such Mortgage Loan on which
interest accrues.
(c) Any amounts received in respect of a Mortgage Loan as
to which a default has occurred and is continuing in excess of Monthly Payments
shall be applied to Default Interest and other amounts due on such Mortgage Loan
prior to the application to late fees.
SECTION 1.03. Certain Constructions.
For purposes of Sections 3.25 and 3.29, references to the most
or next most subordinate Class of Certificates (or Lower-Tier Regular Interests)
outstanding at any time shall mean the most or next most subordinate Class of
Certificates (or Lower-Tier Regular Interests) then outstanding as among the
Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M-1 and Class M-2
Certificates (and the Classes of Related Lower-Tier Regular Interests). For such
purposes, the Class M-1 and Class M-2 Certificates (and the Classes of Related
Lower-Tier Regular Interests) together shall be considered to be one Class and
the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates (and the Classes
of Related Lower-Tier Regular Interests) collectively shall be considered to be
one Class. For purposes of this Agreement, (i) each Class of Sequential
Certificates shall be deemed to be outstanding only to the extent its respective
Certificate Balance has not been reduced to zero (or, in the case of the Class
A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M-1 and M-2 Certificates, if longer,
shall be deemed outstanding so long as there are any Notes outstanding that
provide for the payment of Excess Interest), (ii) the Class R and Class LR
Certificates shall be deemed to be outstanding so long as the Trust Fund has not
been terminated pursuant to Section 9.01 and (iii) the Class X Certificates
shall be deemed to be outstanding until the Class X Notional Balance has been
reduced to zero.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans and Loan REMIC
Regular Interests; Assignment of Mortgage
Loan Purchase and Sale Agreements.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby sell, transfer, assign, set over and otherwise
convey to the Trustee without recourse (except to the extent herein provided)
all the right, title and interest of the Depositor in and to the Mortgage Loans,
including all rights to payment in respect thereof, except as set forth below,
and any security interest thereunder (whether in real or personal property and
whether tangible or intangible) in favor of the Depositor, and all Reserve
Accounts, Lock-Box Accounts, Cash Collateral Accounts and all other assets
included or to be included in the Trust Fund for the benefit of the
Certificateholders. Such transfer and assignment includes all interest and
principal due on or with respect to the Mortgage Loans after the Cut-off Date.
In connection with such transfer and assignment, the Depositor shall make a cash
deposit to the Collection Account in an amount equal to the Cash Deposit. The
Depositor, concurrently with execution and delivery hereof, does also hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse
(except to the extent provided herein) all the right, title and interest of the
Depositor in, to and under the Mortgage Loan Purchase and Sale Agreements and,
in, to and under the Bloomfield Purchase Agreement as assignee of CCA's rights
thereunder to the extent related to any Mortgage Loan. Each of the Servicer, the
Special Servicer and the Trustee shall notify the responsible Mortgage Loan
Seller and the Depositor upon such party's becoming aware of any breach of the
representations and warranties contained in this Agreement or the Mortgage Loan
Purchase and Sale Agreement that gives rise to a cure or repurchase obligation;
provided, that the failure of the Servicer, the Special Servicer or Trustee to
give such notification shall not constitute a waiver of any cure or repurchase
obligation. The Depositor shall cause the Reserve Accounts, Cash Collateral
Accounts and Lock-Box Accounts to be transferred to and held in the name of the
Servicer , on behalf of the Trustee as successor to the Mortgage Loan Sellers
and the Originators.
In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with, the Custodian (on behalf of the
Trustee), with copies to the Servicer (and the Servicer will provide copies to
Special Servicer (in a mutually agreed upon format) upon request, at the expense
of the Depositor, and, if not paid by the Depositor within 30 days of request,
such expense shall constitute a Property Advance hereunder), the following
documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original of the Note, endorsed without recourse
to the order of the Trustee in the following form:
"Pay to the order of LaSalle National Bank, as
Trustee, without recourse," or in blank, which Note
and all endorsements thereon shall, unless the
Mortgage Loan was originated by the Mortgage Loan
Seller (as indicated on the Mortgage Loan
Schedule), show a complete chain of endorsement
from the Originator to the Trustee;
(ii) the original recorded Mortgage or counterpart thereof
showing the Originator as mortgagee or, if any such
original Mortgage has not been returned from the
applicable public recording office, a copy thereof
certified to be a true and complete copy of the
original thereof submitted for recording;
(iii) an executed Assignment of Mortgage in suitable form
for recordation in the jurisdiction in which the
Mortgaged Property is located to "LaSalle National
Bank, as Trustee, without recourse" and any
intervening assignments, if necessary, showing an
unbroken chain of assignments from the Originator to
the Trustee or in blank;
(iv) if the related security agreement is separate from
the Mortgage, the original executed version or
counterpart thereof of such security agreement and
the assignment thereof to Trustee and any intervening
assignments, if necessary, showing an unbroken chain
of assignments from the Originator to the Trustee or
in blank;
(v) a copy of the UCC-1 financing statement, together
with an original executed UCC-2 or UCC-3 financing
statement, in a form suitable for filing, disclosing
the assignment to the Trustee of the security
interest in the personal property (if any)
constituting security for repayment of the Mortgage
Loan;
(vi) the original of the Loan Agreement or counterpart
thereof relating to such Mortgage Loan, if any;
(vii) the original lender's title insurance policy (or the
original pro forma title insurance policy), together
with any endorsements thereto, or marked commitments
to insure;
(viii) if any related Assignment of Leases, Rents and
Profits is separate from the Mortgage, the original
executed version or counterpart thereof, together
with an executed reassignment of such instrument to
the Trustee (a "Reassignment of Assignment of
Leases, Rents and Profits") in suitable form for
recordation in the jurisdiction in which the
Mortgaged Property is located (which reassignment,
however, may be included in the Assignment of
Mortgage and need not be a separate instrument) and
any intervening assignments, if necessary, showing
an unbroken chain of assignments from the
Originator to the Trustee or in blank;
(ix) copies of the original engineering reports and
Environmental Reports of the Mortgaged Properties
made in connection with origination of the Mortgage
Loans, if any;
(x) copies of the original Management Agreements, if
any, for the Mortgaged Property;
(xi) a copy of the related ground lease, as amended, for
the Mortgaged Property, if any;
(xii) if the related assignment of contracts is separate
from the Mortgage, the original executed version of
such assignment of contracts and the assignment
thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash
Collateral Agreement is separate from the Mortgage
or Loan Agreement, a copy thereof; with respect to
the Reserve Accounts, Cash Collateral Accounts and
Lock-Box Accounts, if any, a copy of the UCC-1
financing statements, if any, submitted for filing
with respect to the Mortgage Loan Seller's security
interest in the Reserve Accounts, Cash Collateral
Accounts and Lock-Box Accounts and all funds
contained therein (and UCC-3 financing statements
assigning such security interest to the Trustee on
behalf of the Certificateholders) along with any
intervening UCC-3 assignments showing an unbroken
chain of assignments from the Originator to the
Trustee;
(xiv) any and all amendments, modifications and
supplements to, and waivers related to, any of the
foregoing;
(xv) with respect to the Split Loans, the related
Co-Lender Agreement;
(xvi) with respect to the Credit Lease Loans, the original
of any Residual Value Policy, the related credit
tenant lease and tenant estoppels, and any guaranty
of the credit lease; and
(xvii) any other written agreements related to the Mortgage
Loan.
With respect to any Split Loans for which the Trustee is the
Co-Lender, the preceding document delivery requirements will be met by the
delivery of copies of any mortgage loan documents required to be delivered to
the Lead Lender.
On or promptly following the Closing Date, the Trustee shall,
to the extent possession of recorded copies of each Mortgage and the documents
described in Sections 2.01(a)(iv), (v), (viii), (xii), (xiii) and (xiv) have
been delivered to it, at the expense of the Depositor, (1) prepare and record
(a) each Assignment of Mortgage referred to in Section 2.01(a)(iii) which has
not yet been submitted for recording and (b) each Reassignment of Assignment of
Leases, Rents and Profits referred to in Section 2.01(a)(viii) (if not otherwise
included in the related Assignment of Mortgage) which has not yet been submitted
for recordation; and (2) prepare and file each UCC-2 or UCC-3 financing
statement referred to in Section 2.01(a)(v) or (xiii) which has not yet been
submitted for filing. The Trustee shall upon delivery promptly prepare and
submit (and in no event later than 30 Business Days following the receipt of the
related documents in the case of clause 1(a) above and 60 days following the
receipt of the applicable documents in the case of clauses 1(b) and 2 above) for
recording or filing, as the case may be, in the appropriate public recording
office, each such document. In the event that any such document is lost or
returned unrecorded because of a defect therein, the Trustee, at the expense of
the Depositor, shall use its best efforts to promptly prepare a substitute
document for signature by the Depositor or the related Mortgage Loan Seller, as
applicable, and thereafter the Trustee shall cause each such document to be duly
recorded. The Trustee shall promptly upon receipt of the original recorded copy
(and in no event later than five Business Days following such receipt) deliver
such original to the Custodian. Notwithstanding anything to the contrary
contained in this Section 2.01, in those instances where the public recording
office retains the original Mortgage, Assignment of Mortgage or Reassignment of
Assignment of Leases, Rents and Profits, if applicable, after any has been
recorded, the obligations hereunder of the Depositor shall be deemed to have
been satisfied upon delivery to the Custodian of a copy of such Mortgage,
Assignment of Mortgage or Reassignment of Assignment of Leases, Rents and
Profits, if applicable, certified by the public recording office to be a true
and complete copy of the recorded original thereof. If a pro forma title
insurance policy has been delivered to the Custodian in lieu of an original
title insurance policy, the Depositor will promptly deliver to the Custodian the
related original title insurance policy upon receipt thereof. The Depositor
shall promptly cause the UCC-1's referred to in Section 2.01(a)(v) to be filed
in the applicable public recording office and upon filing will promptly deliver
to the Custodian the related UCC-1, with evidence of filing thereon. The
Depositor shall reimburse the Trustee for all out-of-pocket expenses incurred
and filing fees paid by the Trustee in connection with its obligations under
this paragraph. Copies of recorded or filed Assignments, Reassignments, UCC-1's
and UCC-3's shall be delivered to the Trustee by the Depositor or Servicer, as
applicable.
All original documents relating to the Mortgage Loans which
are not delivered to the Custodian are and shall be held by the Depositor, the
Trustee or the Servicer, as the case may be, in trust for the benefit of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian.
(b) Each of the Split Loans is secured by a Mortgaged
Property which serves as security for the Split Note and the related Other Note.
The Other Note or Other Notes are included in trust funds (the "Other Trust
Funds") created in connection with issuance of separate series of commercial
mortgage pass-through certificates. Each Split Note is a pari passu note with
the related Other Note, and each is entitled to payments made by the respective
Borrower and other amounts received in respect of the related Mortgaged Property
pro rata on the basis of amounts owing under the Split Note and the Other Note.
(c) The Depositor, concurrently with the execution and
delivery hereof, does hereby sell, transfer, assign, set over and otherwise
convey to the Trustee without recourse (except to the extent herein provided)
all the right, title and interest of the Depositor in, to and under the Loan
REMIC Regular Interests and the Loan REMIC Declarations. The Trustee shall
administer each of the Loan REMICs in accordance with Section 4.04(b) hereof.
SECTION 2.02. Acceptance by Custodian and the Trustee.
If the Depositor cannot deliver any original or certified
recorded document described in Section 2.01 on the Closing Date, the Depositor
shall use its best efforts, promptly upon receipt thereof and in any case not
later than 45 days from the Closing Date, to deliver such original or certified
recorded documents to the Custodian (unless the Depositor is delayed in making
such delivery by reason of the fact that such documents shall not have been
returned by the appropriate recording office in which case it shall notify the
Custodian and the Trustee in writing of such delay and shall deliver such
documents to the Custodian promptly upon the Depositor's receipt thereof). By
its execution and delivery of this Agreement, the Trustee acknowledges the
assignment to it of the Mortgage Loans in good faith without notice of adverse
claims and declares that the Custodian holds and will hold such documents and
all others delivered to it constituting the Mortgage File (to the extent the
documents constituting the Mortgage File are actually delivered to the
Custodian) for any Mortgage Loan assigned to the Trustee hereunder in trust,
upon the conditions herein set forth, for the use and benefit of all present and
future Certificateholders. With the exception of any Notes listed by the Trustee
on an exception report and delivered to the Depositor on the Closing Date, the
Trustee hereby acknowledges the receipt of the Notes. The Trustee agrees to
review each Mortgage File within 60 days after the later of (a) the Trustee's
receipt of such Mortgage File or (b) execution and delivery of this Agreement,
to ascertain that all documents (other than documents referred to in clause (ix)
of Section 2.01(a) which shall be delivered to the Servicer) referred to in
Section 2.01 above (in the case of the documents referred to in Section
2.01(a)(iv), (v), (vi), (vii) (in the case of any endorsement thereto), (viii),
(x) through (xiv), (xvi) and (xvii), as identified to it in writing by the
Depositor) and any original recorded documents referred to in the first sentence
of this Section included in the delivery of a Mortgage File have been received,
have been executed, appear to be what they purport to be, purport to be recorded
or filed (as applicable) and have not been torn, mutilated or otherwise defaced,
and that such documents relate to the Mortgage Loans identified in the Mortgage
Loan Schedule. In so doing, the Trustee may rely on the purported due execution
and genuineness of any such document and on the purported genuineness of any
signature thereon. If at the conclusion of such review any document or documents
constituting a part of a Mortgage File have not been executed or received, have
not been recorded or filed (if required), are unrelated to the Mortgage Loans
identified in the Mortgage Loan Schedule, appear not to be what they purport to
be or have been torn, mutilated or otherwise defaced, the Trustee shall promptly
so notify the Depositor and the related Mortgage Loan Seller by providing a
written report, setting forth for each affected Mortgage Loan, with
particularity, the nature of the defective or missing document. The Depositor
shall, or shall cause the applicable Mortgage Loan Seller to, deliver an
executed, recorded or undamaged document, as applicable, or, if the failure to
deliver such document in such form has a material adverse effect on the security
provided by the related Mortgaged Property, the Depositor shall, or shall cause
the responsible Mortgage Loan Seller, or, in the event CCA shall fail to act,
shall cause NHA to repurchase the related Mortgage Loan in the manner provided
in Section 2.03. None of the Servicer, the Special Servicer and the Trustee
shall be responsible for any loss, cost, damage or expense to the Trust Fund
resulting from any failure to receive any document constituting a portion of a
Mortgage File noted on such a report or for any failure by the Depositor to use
its best efforts to deliver any such document.
In reviewing any Mortgage File pursuant to the preceding
paragraph or Section 2.01, the Servicer shall have no responsibility to cause
the Trustee to, and the Trustee will have no responsibility to, determine
whether any document or opinion is legal, valid, binding or enforceable, whether
the text of any assignment or endorsement is in proper or recordable form
(except, if applicable, for the Trustee to determine if the Trustee is the
assignee or endorsee), whether any document has been recorded in accordance with
the requirements of any applicable jurisdiction, whether a blanket assignment is
permitted in any applicable jurisdiction, or whether any Person executing any
document or rendering any opinion is authorized to do so or whether any
signature thereon is genuine.
The Trustee shall hold that portion of the Trust Fund
delivered to the Trustee consisting of "instruments" (as such term is defined in
Section 9-105(i) of the Uniform Commercial Code as in effect in Illinois on the
date hereof) in Illinois and, except as otherwise specifically provided in this
Agreement, shall not remove such instruments from Illinois, as applicable,
unless it receives an Opinion of Counsel (obtained and delivered at the expense
of the Person requesting the removal of such instruments from Illinois) that in
the event the transfer of the Mortgage Loans to the Trustee is deemed not to be
a sale, after such removal, the Trustee will possess a first priority perfected
security interest in such instruments.
SECTION 2.03. Representations, Warranties and Covenants
of the Depositor.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized,
validly existing and in good standing under the laws
of the State of Delaware;
(ii) The Depositor has taken all necessary action to
authorize the execution, delivery and performance
of this Agreement by it, and has the power and
authority to execute, deliver and perform this
Agreement and all the transactions contemplated
hereby, including, but not limited to, the power
and authority to sell, assign and transfer the
Mortgage Loans in accordance with this Agreement;
(iii) This Agreement has been duly and validly
authorized, executed and delivered by the Depositor
and assuming the due authorization, execution and
delivery of this Agreement by each other party
hereto, this Agreement and all of the obligations
of the Depositor hereunder are the legal, valid and
binding obligations of the Depositor, enforceable
in accordance with the terms of this Agreement,
except as such enforcement may be limited by
bankruptcy, insolvency, reorganization,
liquidation, receivership, moratorium or other
similar laws relating to or affecting creditors'
rights generally, or by general principles of
equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and
the performance of its obligations hereunder by the
Depositor will not conflict with any provision of
its certificate of incorporation or bylaws, or any
law or regulation to which the Depositor is
subject, or conflict with, result in a breach of or
constitute a default under (or an event which with
notice or lapse of time or both would constitute a
default under) any of the terms, conditions or
provisions of any agreement or instrument to which
the Depositor is a party or by which it is bound,
or any order or decree applicable to the Depositor,
or result in the creation or imposition of any lien
on any of the Depositor's assets or property, which
would materially and adversely affect the ability
of the Depositor to carry out the transactions
contemplated by this Agreement. The Depositor has
obtained any consent, approval, authorization or
order of any court or governmental agency or body
required for the execution, delivery and
performance by the Depositor of this Agreement;
(v) The certificate of incorporation of the Depositor
provides that the Depositor is permitted to engage in
only the following activities:
(A) to acquire, own, hold, sell, transfer,
assign, pledge, finance, refinance and
otherwise deal with (I) loans secured by
first or second mortgages, deeds of trust
or similar liens on residential, including
single-family and multi-family, commercial
or mixed commercial and residential
properties, shares issued by private
non-profit housing corporations, or
manufactured housing contracts, (II) any
participation interest in, security (in
bond or pass-through form) or funding
agreement based on, backed or
collateralized by, directly or indirectly,
any of the foregoing (the loans described
in clause (A)(I) and the participation
interests, securities and funding
agreements described in clause (A)(II),
collectively, "Mortgage Loans"), (III)
receivables and loan obligations, whether
secured or unsecured, including, but not
limited to, retail automotive, truck or
manufactured housing installment sale
contracts or loans or automotive, truck or
manufactured housing leases, consumer or
commercial loans or leases, credit card
accounts, accounts receivable, corporate
receivables, trade receivables, trade
bills, boat and recreational vehicle
loans, computer or other equipment loans
or leases, mobile home loans and pads,
construction equipment, dealer and floor
plan financing notes, insurance policy
loans, medical and health care
receivables, municipal and other
governmental leases, short-term notes
secured by a lien on a small business or
all or part of its assets, and loans to
lesser-developed countries, (IV) any
participation interest in, security (in
bond or pass-through form) or funding
agreement based on, backed or
collateralized by, directly or indirectly,
any of the foregoing (the receivables and
loans described in clause (A)(III) and the
participation interests, securities and
funding agreements described in clause
(A)(IV), collectively, "Receivables");
(B) to authorize and issue one or more series
(each, a "Pass-Through Series") of
pass-through securities ("Certificates")
pursuant to pooling and servicing
agreements (each, a "Pooling and Servicing
Agreement"), each of which Pass-Through
Series (I) represents an ownership
interest in Mortgage Loans or Receivables,
related property and/or collections in
respect thereof and (II) may be structured
to contain one or more classes of
Certificates, each class having the
characteristics specified in the related
Pooling and Servicing Agreement, and to
acquire, own, hold, sell, transfer,
assign, pledge, finance or refinance one
or more Certificates or classes of
Certificates of any Pass-Through Series;
(C) to establish one or more trusts ("Trusts")
to issue, acquire, own, and hold one or
more series (each, a "Bond Series") of
debt obligations ("Bonds"), each issued
pursuant to an indenture ("Indenture"),
each of which bond series (I) is
collateralized by Mortgage Loans,
receivables and any supplemental
collateral (the "Supplemental Collateral";
Mortgage Loans, Receivables and
Supplemental Collateral, collectively, the
"Collateral") and/or related property
and/or collections in respect thereof and
(II) may be structured to contain one or
more classes of Bonds, each class having
the characteristics specified in the
related Indenture, and to acquire, own,
hold, sell, transfer, assign, pledge,
finance or refinance one or more Bonds or
classes of Bonds of any Bond Series;
provided, however, that the Bonds of any
Bond Series have been rated in one of the
two highest rating categories by one or
more nationally recognized statistical
rating agencies and, provided further,
that the Bonds of any Bond Series other
than the initial Bond Series issued by a
Trust have been rated in the same or a
higher rating category by the nationally
recognized statistical rating agency or
agencies that rated the initial Bond
Series issued by such Trust;
(D) to issue, acquire, assume, own, hold,
sell, transfer, assign, pledge and finance
indebtedness that (I) is subordinated to
the Bonds; (II) is nonrecourse to the
Depositor and the related Trust other than
to cash flow on the Collateral securing a
Bond Series issued by the related Trust in
excess of amounts necessary to pay holders
of Bonds ("Bondholders") of such Bond
Series; (III) does not constitute a claim
against the Depositor to the extent that
funds are insufficient to pay such
indebtedness; and (IV) does not result in
a reduction, withdrawal or qualifying of
the rating or ratings then assigned to the
Bonds of any Bond Series issued by the
Trust issuing such subordinated
indebtedness, as confirmed in writing by
the nationally recognized statistical
rating agency or agencies rating such Bond
Series;
(E) (I) to establish one or more Trusts to
engage in any one or more of the
activities described in (A) and (D) above,
each of which Trusts and any Trust formed
to engage in one or more of the activities
described in (C) above may deliver to the
Depositor Certificates ("Trust
Certificates") representing the ownership
interest in the assets of such Trust, (II)
to acquire, own, hold, sell, transfer,
assign, pledge, finance, and otherwise
deal with any or all of the Trust
Certificates in any Trust that it
establishes and (III) to act as settlor or
depositor of such Trusts and to invest in
or sell Trust Certificates; and
(F) to engage in any other acts and activities
and to exercise any powers permitted to
corporations under the laws of the State of
Delaware which are incidental to, or
connected with, the foregoing, and
necessary, suitable or convenient to
accomplish any of the foregoing;
(vi) The certificate of incorporation further provides
that the Depositor:
(A) will (1) maintain and prepare financial
reports, financial statements, books and
records and bank accounts separate from
those of its affiliates and any other
person or entity and (2) will not permit
any affiliate or any other person or
entity independent access to its bank
accounts;
(B) will not commingle the funds and other
assets of the Depositor with those of any
affiliate, any guarantor of any of the
obligations of the Depositor (each, a
"Guarantor"), or any affiliate of any
Guarantor, or any other person or entity;
(C) shall conduct its own business and hold all
of its assets in its own name;
(D) shall remain solvent and pay its debts and
liabilities (including employment and
overhead expenses) from its assets as the
same shall become due;
(E) shall do all things necessary to observe
corporate and other organizational
formalities and preserve its existence as
a single-purpose, bankruptcy-remote entity
in accordance with the standards of the
statistical rating organizations providing
ratings on any Certificates, as such
standards are in effect on the date of
issuance of such Certificates;
(F) shall enter into transactions with
affiliates only if each such transaction
is commercially reasonable and on
substantially similar terms as a
transaction that would be entered into on
an arm's length basis with a person or
entity other than an affiliate of the
Depositor;
(G) shall compensate each of its consultants and
agents from its own funds for services
provided to it;
(H) shall not guarantee, become obligated for,
or hold itself or its credit out to be
responsible for, or available to satisfy,
the debts or obligations of any other person
or entity or the decisions or actions
respecting the daily business or affairs of
any other person or entity;
(I) shall not (1) acquire obligations or
securities of any affiliate or any of the
stockholders of the Depositor or (2) buy
or hold any evidence of indebtedness
issued by any other person or entity,
other than cash, investment-grade
securities, Receivables and notes
evidencing the indebtedness of a borrower
under the related Loan;
(J) will allocate fairly and reasonably and
pay from its own funds the cost of (1) any
overhead expenses (including the cost of
any office space) shared with any
affiliate of the Depositor and (2) any
services (such as asset management, legal
and accounting) that are provided jointly
to the Depositor and one or more of its
affiliates;
(K) will maintain and utilize separate
stationery and invoices bearing its own
name and allocate separate office space
(which may be a separately identified area
in office space shared with one or more
affiliates) and maintain a separate sign
in the office directory of the building in
which the Depositor maintains its
principal place of business;
(L) shall not make any loans or advances to, or
pledge its assets for the benefit of, any
other person or entity, including, without
limitation, any affiliate, Guarantor or any
affiliate of any Guarantor;
(M) will be, and at times will hold itself out
to the public as, a legal entity separate
and distinct from any other person or
entity;
(N) shall not identify itself or any of its
affiliates as a division or part of any
other person or entity;
(O) will maintain adequate capital for the
normal obligations reasonably foreseeable in
a business of its size and character and in
light of its contemplated business
operations;
(P) shall maintain its assets in such a manner
that it will not be costly or difficult to
segregate, ascertain or identify its
individual assets from those of any
affiliate, any Guarantor, or any affiliate
of any Guarantor, or any other person or
entity;
(Q) shall not incur any indebtedness, other
than indebtedness incurred in the ordinary
course of the Depositor's business, or
grant a security interest of any nature
whatsoever in the Depositor's assets,
other than pursuant to, or as set forth
in, any documents relating to the issuance
of the Certificates or Bonds; and
(R) shall not (1) transfer, lease or sell, in
one transaction or any combination of
transactions, all or substantially all of
the properties or assets of the Depositor
other than the transfer of Mortgage Loans
or Receivables to a trust in connection
with the issuance of Certificates or Bonds
or in connection with a sale of
Receivables, Mortgage Loans or other
securities in the ordinary course of the
Depositor's business, (2) merge or
consolidate with or into any other
business entity, (3) dissolve, wind up or
liquidate or take any act or omission as a
result of which the Depositor would be
dissolved, wound up or liquidated, in
whole or in part, (4) engage in any
business activity not described in Article
III hereof, or (5) amend, modify,
terminate or waive the Certificate of
Incorporation or by-laws of the Depositor
unless, with respect to the foregoing
clauses (1) through (5), the Depositor
shall have received written confirmation
from each of the statistical rating
organizations providing ratings on any
Certificates or Bonds on the date of
issuance of such Certificates or Bonds
that such action, in and of itself, will
not cause such statistical rating
organization to qualify, downgrade or
withdraw any of its then-current rating
for any Certificate or Bond.
Capitalized terms defined in clauses (v) and (vi) shall apply
only to clauses (v) and (vi).
(vii) There is no action, suit or proceeding pending
against the Depositor in any court or by or before
any other governmental agency or instrumentality
which would materially and adversely affect the
ability of the Depositor to carry out its obligations
under this Agreement; and
(viii) The Trustee, if not the owner of the related Mortgage
Loan, will have a valid and perfected security
interest of first priority in each of the Mortgage
Loans and any proceeds thereof.
(b) The Depositor hereby represents and warrants with
respect to each Mortgage Loan that:
(i) Immediately prior to the transfer and assignment to
the Trustee: (a) the Note and the Mortgage were
not subject to an assignment or pledge, and (b) the
Depositor had good title to, and was the sole owner
of, the Mortgage Loan and had full right to
transfer and sell the Mortgage Loan to the Trustee
free and clear of any encumbrance, equity, lien,
pledge, charge, claim or security interest;
(ii) The Depositor is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges or
security interests of any nature encumbering such
Mortgage Loan;
(iii) The related Assignment of Mortgage constitutes the
legal, valid and binding assignment of such Mortgage
from the Depositor to the Trustee, and any related
Reassignment of Assignment of Leases, Rents and
Profits constitutes the legal, valid and binding
assignment from the Depositor to the Trustee;
(iv) No claims have been made by the Depositor under the
lender's title insurance policy, and the Depositor
has not done, by act or omission, anything which
would impair the coverage of such lender's title
insurance policy;
(v) All of the representations and warranties of the
Mortgage Loan Sellers contained in the Mortgage Loan
Purchase and Sale Agreements are true and correct as
of the Cut-off Date;
(vi) (1) Such Mortgage Loan is directly secured by a
Mortgage on Real Property, and (2) either (i)
substantially all of the proceeds of such Mortgage
Loan were used to acquire or improve or protect an
interest in Real Property that, at the origination
date, was the only security for the Mortgage Loan
(in the case of a Mortgage Loan that has not been
modified in a manner that constituted a deemed
exchange under Section 1001 of the Code at a time
when the Mortgage Loan was not in default or
default with respect thereto was not reasonably
foreseeable) or (ii) the fair market value of such
Real Property was at least equal to 80% of the
principal amount of the Mortgage Loan (a) at
origination (or, if the Mortgage Loan has been
modified in a manner that constituted a deemed
exchange under Section 1001 of the Code at a time
when the Mortgage Loan was not in default or
default with respect thereto was not reasonably
foreseeable, the date of the last such
modification) or (b) at the Closing Date; provided
that for purposes of this clause (ii) the fair
market value of the Real Property interest must
first be reduced by (A) the amount of any lien on
the Real Property interest that is senior to the
Mortgage Loan (unless such senior lien also secures
a Mortgage Loan, in which event the computation
described in (a) and (b) of this clause (ii) shall
be made on an aggregate basis) and (B) a
proportionate amount of any lien that is in parity
with the Mortgage Loan (unless such other lien
secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in
which event the computation described in (a) and
(b) of this clause (ii) shall be made on an
aggregate basis);
(vii) The information set forth with respect to such
Mortgage Loan on the Mortgage Loan Schedule is true
and correct in all material respects as of the dates
respecting which such information is given, or if no
date is specified, as of the Cut-off Date; and
(viii) The acquisition of any Other Note by an Other Trust
Fund will not result in a qualification, withdrawal
or downgrade of any rating assigned to the
Certificates.
(ix) With respect to each Other Mortgage Loan, the Other
Servicer and Other Special Servicer are parties to
pooling and servicing agreements, copies of which
have previously been delivered to the Servicer.
(c) It is understood and agreed that the representations
and warranties set forth in this Section 2.03 shall survive delivery of the
respective Mortgage Files to the Trustee until the termination of this
Agreement, and shall inure to the benefit of the Certificateholders, the Special
Servicer and the Servicer.
(d) Upon discovery by the Custodian, the Servicer, the
Special Servicer or the Trustee of a breach of the representation and warranty
set forth in Section 2.03(b)(vi) or that any Mortgage Loan otherwise fails to
constitute a Qualified Mortgage, such Person shall give prompt notice thereof to
the related Mortgage Loan Seller, the Special Servicer and the Depositor, as
soon as practical after its receipt of such notice, and the Depositor shall
correct such condition or repurchase or cause (i) the responsible Mortgage Loan
Seller or (ii) in the event CCA, as Mortgage Loan Seller shall fail to act, NHA,
to repurchase such Mortgage Loan at the Repurchase Price within 90 days of
discovery of such failure; it being understood and agreed that none of such
Persons has an obligation to conduct any investigation with respect to such
matters. It is understood and agreed that the obligations of the Depositor set
forth in this Section 2.03(d) to cure or repurchase a Mortgage Loan which fails
to constitute a Qualified Mortgage shall be the sole remedies available to the
Trustee against the Depositor respecting a breach of a representation or
warranty set forth in Section 2.03(b)(vi).
(e) Upon discovery by the Custodian, the Servicer, the
Special Servicer or the Trustee of a breach of any representation or warranty of
the Mortgage Loan Sellers in the Mortgage Loan Purchase and Sale Agreements with
respect to any Mortgage Loan, or that any document required to be included in
the Mortgage File does not conform to the requirements of Section 2.01, such
Person shall give prompt notice thereof to the appropriate Mortgage Loan Seller,
the Depositor and the Special Servicer, and such Mortgage Loan Seller shall, to
the extent such Mortgage Loan Seller is obligated to cure or repurchase the
related Mortgage Loan under the terms of the related Mortgage Loan Purchase and
Sale Agreement, either cure such breach or repurchase said Mortgage Loan at the
Repurchase Price within 90 days of the receipt of notice of the breach as
provided in the related Mortgage Loan Purchase and Sale Agreement; it being
understood and agreed that none of the Custodian, the Servicer, the Special
Servicer, and the Trustee has an obligation to conduct any investigation with
respect to such matters (except, in the case of the Mortgage Files, to the
extent provided in Section 2.01); provided, however, that in the event that such
breach is capable of being cured as determined by the Servicer, or the Special
Servicer, as applicable, but not within such 90 day period and the appropriate
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such breach within such 90 day period (other than a breach that is also a breach
of Section 2.03(b)(vi) or 2.03(d)), the appropriate Mortgage Loan Seller shall
have an additional 90 days to complete such cure; provided, further, that with
respect to such additional 90 day period the appropriate Mortgage Loan Seller
shall have delivered an officer's certificate to the Trustee, the Servicer and
the Special Servicer setting forth the reason such breach is not capable of
being cured within the initial 90 day period and what actions the Mortgage Loan
Seller is pursuing in connection with the cure thereof and stating that the
Mortgage Loan Seller anticipates that such breach will be cured within the
additional 90 day period; and, provided, further, the Repurchase Price shall
include interest on any Advances made in respect of the related Mortgage Loan.
Any out-of-pocket expenses incurred by the Servicer or Special Servicer pursuant
to this Section 2.03(e), and which have not been previously reimbursed, and
which in the good faith business judgment of the Servicer or Special Servicer
would not be ultimately recoverable under clause (iv) of the definition of
Repurchase Price shall otherwise be payable by the Mortgage Loan Seller (and if
not paid by the Mortgage Loan Seller within 30 days of the request for payment
by the Servicer, the cost thereof shall constitute a Property Advance).
(f) Upon receipt by the Servicer from the Depositor or
appropriate Mortgage Loan Seller of the Repurchase Price for the repurchased
Mortgage Loan, the Servicer shall deposit such amount in the Collection Account,
and the Trustee, pursuant to Section 3.11, shall, upon receipt of a certificate
of a Servicing Officer certifying as to the receipt by the Servicer of the
Repurchase Price and the deposit of the Repurchase Price into the Collection
Account pursuant to this Section 2.03(f), release or cause to be released to the
Depositor or the appropriate Mortgage Loan Seller the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as shall be prepared by the
Servicer to vest in the Depositor or the appropriate Mortgage Loan Seller any
Mortgage Loan released pursuant hereto, and any rights of the Depositor in, to
and under the Mortgage Loan Purchase and Sale Agreement as it related to such
Mortgage Loan that was initially transferred to the Trust Fund under Section
2.01, and if applicable any rights of CCA or Depositor in, to and under the
related Bloomfield Purchase Agreement as it related to such Mortgage Loan that
were initially transferred to the Trust Fund under Section 2.01, and the Trustee
and the Servicer shall have no further responsibility with regard to such
Mortgage File. Any out-of-pocket expenses incurred by the Servicer pursuant to
this Section 2.03(f), and which have not been previously reimbursed, and which
in the good faith business judgment of the Servicer would not be ultimately
recoverable under clause (iv) of the definition of Repurchase Price shall
otherwise be payable by the Mortgage Loan Seller (and if not paid by the
Mortgage Loan Seller within 30 days of the request for payment by the Servicer,
the cost thereof shall constitute a Property Advance).
(g) In the event that any Mortgage Loan Seller incurs any
expense in connection with curing a breach of a representation or warranty
pursuant to Section 2.03(e) which also constitutes a default under the related
Mortgage Loan, such Mortgage Loan Seller shall have a right, subrogated to that
of the Trustee, as successor to the mortgagee, to recover the amount of such
expenses from the related Borrower. The Servicer shall use reasonable efforts in
recovering, or assisting such Mortgage Loan Seller in recovering, from the
related Borrower the amount of any such expenses. Any out-of-pocket expenses
incurred by the Servicer pursuant to this Section 2.03(g), and which have not
been previously reimbursed, and which in the good faith business judgment of the
Servicer would not be ultimately recoverable under clause (iv) of the definition
of Repurchase Price shall otherwise be payable by the Mortgage Loan Seller (and
if not paid by the Mortgage Loan Seller within 30 days of the request for
payment by the Servicer, the cost thereof shall constitute a Property Advance).
(h) In the event that any litigation is commenced which
alleges facts which, in the judgment of the Depositor, could constitute a breach
of any of the Depositor's representations and warranties relating to the
Mortgage Loans, the Depositor hereby reserves the right to conduct the defense
of such litigation at its expense.
(i) If for any reason any Mortgage Loan Seller or the
Depositor fails to fulfill its obligations under this Section 2.03 with respect
to any Mortgage Loan, the Servicer or Special Servicer, as applicable, shall use
reasonable efforts in enforcing any obligation of the applicable Mortgage Loan
Seller (or NHA on behalf of CCA, as Mortgage Loan Seller) to cure or repurchase
such Mortgage Loan under the terms of the related Mortgage Loan Purchase and
Sale Agreement. Any out-of-pocket expenses incurred by the Servicer pursuant to
this Section 2.03(i), and which have not been previously reimbursed, and which
in the good faith business judgment of the Servicer would not be ultimately
recoverable under clause (iv) of the definition of Repurchase Price shall
constitute a Property Advance hereunder.
(j) The Depositor additionally represents, warrants and
covenants that:
(i) The Depositor will at all times maintain its valid
corporate existence in good standing under the laws
of the state of its incorporation. The Depositor
has otherwise complied and will comply in all
respects with the laws of the state of its
incorporation, and with all other laws, federal,
state, or otherwise, insofar as they are related to
its separate corporate existence, and it will
observe all requisite corporate formalities.
(ii) Although all directors and officers of the
Depositor, except any director who is Independent,
are directors, officers, or employees of CCA and/or
Nomura Securities International, Inc. ("NSI"), such
---
persons have not directly received, and will not
directly receive, any remuneration from the
Depositor for serving as directors or officers of
the Depositor. The Depositor is charged and pays a
fair estimate, adjusted every six months, of
payroll and related expenses for work and services
performed by the directors, officers, and employees
of CCA or NSI for services performed as directors
or officers of the Depositor. The officers and
directors of the Depositor, when acting in such
capacity, act in the best interests of the
Depositor, consistent with their fiduciary duties
as directors and officers of such corporation. The
Depositor is not obligated to pay or distribute to
CCA or any of its Affiliates, by dividend or
otherwise, any portion of any of its profits or its
other assets. The Depositor's profits, if any,
may, at the discretion of the Depositor's Board of
Directors and subject to applicable law, be
transferred by dividend to the Depositor's
shareholder(s), which is presently CCA.
(iii) The Depositor maintains its business in separately
allocated and identifiable office space within the
offices of its Affiliates in New York City. The
Depositor's presence at such offices is noted in
the building directory and on other signs. As set
forth above in connection with payroll expenses,
the Depositor is charged and pays rent in an amount
corresponding to the portion of the office space
allocated to the Depositor.
(iv) The Depositor has a telephone number different from
any telephone numbers of CCA and NSI or any of their
Affiliates. The Depositor uses its own stationery
that indicates its separate telephone number and
identifies it as a separate corporate entity.
(v) The Depositor shall not fail to correct any known
misunderstanding regarding the separate identity of
the Depositor, or purport to operate as an
integrated, single economic unit with any of its
Affiliates in dealing with any unaffiliated
entity. Neither the Mortgage Loan Sellers nor NSI
finance the Depositor's operations or guarantees
the Depositor's obligations (other than with
respect to NHA's obligations under the Underwriting
Agreement, dated March 19, 1999 among the
Depositor, NHA, CCA and the Underwriters), and the
Depositor does not finance the operations or
guarantee the obligations of the Mortgage Loan
Sellers or NSI; provided, however, that CCA has
made capital contributions to the Depositor, and
may make additional capital contributions from time
to time in connection with the expansion of the
Depositor's business or to enable the Depositor to
invest in privately-offered Certificates. However,
CCA does not pay or subsidize any of the
Depositor's normal operating expenses. The
Depositor will pay from its own funds its operating
expenses and liabilities, including legal fees and
expenses, or will reimburse the Mortgage Loan
Sellers or NSI for any such expenses or liabilities
paid by the Mortgage Loan Sellers or NSI on the
Depositor's behalf. To facilitate the registration
process, CCA and/or NSI has advanced and may
advance certain expenses of the Depositor
associated with the registration process. The
Depositor has repaid or will repay to CCA and/or
NSI these expenses on an allocable basis out of the
proceeds of mortgage pass-through transactions.
Neither the Mortgage Loan Sellers nor NSI have
funded or will fund the Depositor's operating
expenses. The assets or creditworthiness of the
Mortgage Loan Sellers, NSI or any of their
Affiliates are not held out by the Depositor as
being available for the payment of the Depositor's
liabilities or obligations, and the assets or
creditworthiness of the Depositor are not held out
by the Depositor as being available for the payment
of the liabilities of the Mortgage Loan Sellers,
NSI or any of their Affiliates other than the
Depositor. The assets or creditworthiness of the
Depositor are not held out by the Mortgage Loan
Sellers or NSI, to the knowledge of the Depositor,
and the Depositor will not permit that its assets
or creditworthiness will be held out by the
Mortgage Loan Sellers or NSI, as being available
for the payment of the liabilities or obligations
of the Mortgage Loan Sellers, NSI or any of their
Affiliates. The assets or creditworthiness of the
Mortgage Loan Sellers, NSI or any of their
Affiliates are not held out by the Mortgage Loan
Sellers or NSI, to the knowledge of the Depositor,
and the Depositor will not permit that the assets
or creditworthiness of the Mortgage Loan Sellers or
NSI will be held out by the Mortgage Loan Sellers
or NSI, as being available for the payment of the
liabilities of the Depositor. The Depositor's
assets are now, and are expected in the future to
be, sufficient to pay the Depositor's ongoing
expenses as they are incurred and to discharge all
of the Depositor's liabilities in the event that
the business of the Depositor is required to be
liquidated.
(vi) The separate corporate existence of the Depositor
is not used by either the Depositor, or, to the
knowledge of the Depositor, by the Mortgage Loan
Sellers or NSI, and the Depositor will not permit
that its separate corporate existence will be used
by the Mortgage Loan Sellers or NSI, to abuse
creditors or to perpetrate a fraud, injury, or
injustice on creditors.
(vii) The Depositor's existence is not dependent on it
being a subsidiary of CCA or an Affiliate of NSI
and it is expected that the Depositor would be able
to maintain its business and affairs even if it
were not a subsidiary of CCA or an Affiliate of
NSI. To the knowledge of the Depositor, CCA's
existence is not dependent on the Depositor being
its subsidiary and it is expected that CCA would be
able to maintain its business and affairs even if
the Depositor were not its subsidiary. To the
knowledge of the Depositor, the Mortgage Loan
Sellers' existence is not dependent on the
Depositor being their Affiliate and it is expected
that NSI would be able to maintain its business and
affairs even if the Depositor were not its
Affiliate. The Depositor conducts its business
separate and apart from the business conducted by
any other person or entity.
(viii) The Depositor maintains corporate records distinct
and separately identifiable from the corporate
records of the Mortgage Loan Sellers, NSI and any
other person or entity. The Depositor prepares
monthly financial records distinct and separately
identifiable from the financial records of the
Mortgage Loan Sellers, NSI or any of their
Affiliates. These statements and reports are
prepared and maintained in accordance with
generally accepted accounting principles,
susceptible to audit and audited, at least
annually, in connection with the audit of the
Depositor and its Affiliates on a consolidated
basis by independent public accountants in
accordance with generally accepted auditing
standards. Such consolidated financial statements
will henceforth indicate that the assets of the
Depositor are not available to satisfy the
creditors of any entity other than the Depositor.
The Depositor keeps its funds separate and apart
from the funds of the Mortgage Loan Sellers, NSI
and any of their Affiliates, and its other assets
are separately identifiable and distinguishable
from the assets of the Mortgage Loan Sellers, NSI
and any of their Affiliates.
(ix) The Depositor acts solely in its own corporate name
and solely through its duly authorized officers or
agents. The Depositor complies with the provisions
of its Certificate of Incorporation and its By-Laws
and complies in all material respects, in
connection with its separate existence, with the
laws of the state in which it is incorporated. In
addition, the sole shareholder and the Board of
Directors of the Depositor hold all such meetings
or execute consents necessary to authorize
corporate action by the Depositor, and the
Depositor maintains appropriate minutes of such
meetings or records of its written consents. The
Depositor observes all requisite corporate
formalities.
(x) All transactions between the Mortgage Loan Sellers
or NSI (or any of their Affiliates), on the one
hand, and the Depositor, on the other, are, and
will be, duly authorized and documented, and
recorded accurately in the appropriate books and
records of the Depositor, and to the knowledge of
the Depositor, in the appropriate books and records
of the Mortgage Loan Sellers or NSI, if the
Mortgage Loan Sellers or NSI is a party to such
transaction. All such transactions are fair to
each party, constitute exchanges for fair
consideration and for reasonably equivalent value,
and are made in good faith and without any actual
intent to hinder, delay, or defraud creditors. The
Depositor will not take any action, and will not
engage in transactions with the Mortgage Loan
Sellers, NSI or any of their Affiliates unless the
respective Boards of Directors or officers, as
applicable, of the Depositor and the Mortgage Loan
Sellers or NSI, if the Mortgage Loan Sellers or
NSI, respectively, is a party to such transaction,
determine in a reasonable fashion that such actions
or transactions are in their respective companies'
best interests.
(xi) The Depositor intends the transfer of the Mortgage
Loans from the Mortgage Loan Sellers to the
Depositor pursuant to the Mortgage Loan Purchase
and Sale Agreements to be a sale of the Mortgage
Loans. The Depositor intends the transfer of the
Mortgage Loans from the Depositor to the Trustee
pursuant to this Agreement, and the transfer of
certain of the Certificates to NSI (all
Certificates so transferred, the "NSI
Certificates"), to be sales from the Depositor to
the Trustee (the "Depositor/Trustee Transfer") and
from the Depositor to NSI (the "Depositor/NSI
Transfer"), respectively. The Depositor will treat
the transfer of the Mortgage Loans, the
Depositor/Trustee Transfer and the Depositor/NSI
Transfer as sales for accounting and tax purposes.
The purchase prices for the Mortgage Loans and the
NSI Certificates reflect the good faith
determinations of the Depositor of the fair market
value of the Mortgage Loans and the NSI
Certificates, respectively, and are equal to the
prices that the Depositor believes would be paid in
sales of the Mortgage Loans or the NSI Certificates
between non-affiliated entities. No provision
exists whereby such consideration may be modified
subsequent to closing, and the Depositor has no
obligation to repay such consideration, or interest
thereon, to the Trustee or NSI, as applicable. The
Depositor will receive the consideration for the
NSI Certificates.
(xii) The Depositor irrevocably transfers and
relinquishes all rights with respect to the
Mortgage Loans and, specifically, has no right to
sell, pledge or otherwise dispose of the Mortgage
Loans. Subject to the terms of this Agreement, the
Trustee is free to deal with the Mortgage Loans as
trustee of trust property on behalf of the
Certificateholders. The Depositor transfers the
Mortgage Loans without recourse and has no
obligation to deliver other property to the Trustee
either in substitution for or in addition to the
Mortgage Loans in the event of a credit loss or
decline in value of the Mortgage Loans. The
Depositor has no right to transfer the Mortgage
Loans back to the Mortgage Loan Sellers.
(xiii) The Depositor has not transferred the Mortgage Loans
in contemplation of insolvency or with a design to
prefer one or more creditors to the exclusion in
whole or in part of others or with an actual intent
to hinder, delay or defraud any of its creditors.
(xiv) The assets of the Depositor are now, and are expected
in the future to be, sufficient to pay the ongoing
business expenses of the Depositor as they are
incurred and to discharge all of its liabilities in
the event that the business of the Depositor is
required to be liquidated.
(xv) The property remaining in the hands of the Depositor
after giving effect to the Transfers is not an
unreasonably small amount of capital for the business
in which the Depositor is engaged.
SECTION 2.04. Representations, Warranties and Covenants
of the Servicer, Special Servicer and Trustee.
(a) The Servicer, as Servicer, hereby
represents, warrants and covenants that as of the Closing Date or as of
such date specifically provided herein:
(i) The Servicer is a national banking association,
duly organized, validly existing and in good
standing and has all material licenses necessary to
carry on its business as now being conducted or is
in compliance with the laws of each state (within
the United States of America) in which any
Mortgaged Property is located to the extent
necessary to comply with its duties and
responsibilities hereunder with respect to each
Mortgage Loan in accordance with the terms of this
Agreement;
(ii) The Servicer has the power, authority and legal
right to execute and deliver this Agreement and to
perform in accordance herewith; the execution and
delivery of this Agreement by the Servicer and its
performance and compliance with the terms of this
Agreement will not violate the Servicer's articles
of association, 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 contract, agreement or
other instrument to which the Servicer is a party
or which may be applicable to the Servicer or any
of its assets;
(iii) This Agreement has been duly and validly
authorized, executed and delivered by the Servicer
and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of the
Servicer, enforceable against it in accordance with
the terms of this Agreement, except as such
enforcement may be limited by bankruptcy,
insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to
or affecting creditors' rights generally, or by
general principles of equity (regardless of whether
such enforceability is considered in a proceeding
in equity or at law), and all requisite action has
been taken by the Servicer to make this Agreement
and all agreements contemplated hereby valid and
binding upon the Servicer in accordance with their
terms;
(iv) The Servicer is not in violation of, and the
execution and delivery of this Agreement by the
Servicer and its performance and compliance with
the terms of this Agreement will not constitute a
violation with respect to, any order or decree of
any court binding on the Servicer or any order or
regulation of any federal, state, municipal or
governmental agency having jurisdiction, or result
in the creation or imposition of any lien, charge
or encumbrance which, in any such event, would have
consequences that would materially and adversely
affect the condition (financial or otherwise) or
operation of the Servicer or its properties or
impair the ability of the Trust Fund to realize on
the Mortgage Loans;
(v) There is no action, suit, proceeding or
investigation pending or, to the best of the
Servicer's knowledge, threatened against the
Servicer which, either in any one instance or in
the aggregate, would result in any material adverse
change in the business, operations, financial
condition, properties or assets of the Servicer, or
result in any material impairment of the right, or
would, if adversely determined, materially impair
the ability of the Servicer, to carry on its
business substantially as now conducted, or in any
material liability on the part of the Servicer, or
which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action
taken or to be taken in connection with the
obligations of the Servicer contemplated herein, or
which would be likely to impair materially the
ability of the Servicer to perform under the terms
of this Agreement; and
(vi) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court
or governmental agency or body, is required for the
execution, delivery and performance by the Servicer
of or compliance by the Servicer with this Agreement,
or if required, such approval has been obtained prior
to the Cut-off Date.
(b) The Special Servicer hereby represents, warrants and
covenants that as of the Closing Date or as of such date specifically provided
herein:
(i) The Special Servicer is a corporation duly
organized, validly existing and in good standing,
under the laws of Florida and has all licenses
necessary to carry on its business as now being
conducted or will be in compliance with the laws of
each state (within the United States of America) in
which any Mortgaged Property is located to the
extent necessary to comply with its duties and
responsibilities hereunder with respect to each
Mortgage Loan in accordance with the terms of this
Agreement;
(ii) The Special Servicer has the full power, authority
and legal right to execute and deliver this
Agreement and to perform in accordance herewith;
the execution and delivery of this Agreement by the
Special Servicer and its performance and compliance
with the terms of this Agreement will not violate
the Special Servicer's articles of incorporation or
by-laws 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 contract, agreement or
other instrument to which the Special Servicer is a
party or which may be applicable to the Special
Servicer or any of its assets;
(iii) This Agreement has been duly and validly
authorized, executed and delivered by the Special
Servicer and, assuming due authorization, execution
and delivery by the other parties hereto,
constitutes a legal, valid and binding obligation
of the Special Servicer, enforceable against it in
accordance with the terms of this Agreement, except
as such enforcement may be limited by bankruptcy,
insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to
or affecting creditors' rights generally, or by
general principles of equity (regardless of whether
such enforceability is considered in a proceeding
in equity or at law), and all requisite corporate
action, has been taken by the Special Servicer to
make this Agreement and all agreements contemplated
hereby valid and binding upon the Special Servicer
in accordance with their terms;
(iv) The Special Servicer is not in violation of, and
the execution and delivery of this Agreement by the
Special Servicer and its performance and compliance
with the terms of this Agreement will not
constitute a violation with respect to, any order
or decree of any court binding on the Special
Servicer or any order or regulation of any federal,
state, municipal or governmental agency having
jurisdiction, or result in the creation or
imposition of any lien, charge or encumbrance
which, in any such event, would have consequences
that would materially and adversely affect the
condition (financial or otherwise) or operation of
the Special Servicer or its properties or impair
the ability of the Trust Fund to realize on the
Mortgage Loans;
(v) There is no action, suit, proceeding or
investigation pending or threatened against the
Special Servicer which, either in any one instance
or in the aggregate, would result in any material
adverse change in the business, operations,
financial condition, properties or assets of the
Special Servicer, or result in any material
impairment of the right, or would, if adversely
determined, materially impair the ability of the
Special Servicer to carry on its business
substantially as now conducted, or in any material
liability on the part of the Special Servicer, or
which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action
taken or to be taken in connection with the
obligations of the Special Servicer contemplated
herein, or which would be likely to impair
materially the ability of the Special Servicer to
perform under the terms of this Agreement; and
(vi) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court
or governmental agency or body, is required for the
execution, delivery and performance by the Special
Servicer of or compliance by the Special Servicer
with this Agreement, or if required, such approval
has been obtained prior to the Cut-off Date.
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive delivery of the respective
Mortgage Files to the Trustee or the Custodian on behalf of the Trustee until
the termination of this Agreement, and shall inure to the benefit of the
Certificateholders, the Trustee, the Depositor and the Servicer or Special
Servicer, as the case may be. Upon discovery by the Depositor, the Servicer, the
Special Servicer or a Responsible Officer of the Trustee (or upon written notice
thereof from any Certificateholder) of a breach of any of the representations
and warranties set forth in this Section which materially and adversely affects
the interests of the Certificateholders, the Servicer, the Special Servicer or
the Trustee in any Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties hereto and the Mortgage Loan Sellers.
(d) The Trustee hereby represents and warrants that as of the
Closing Date:
(i) The Trustee is a nationally chartered bank duly
organized, validly existing, and in good standing
under the laws of the United States and has full
power, authority and legal right to own its
properties and conduct its business as presently
conducted and to execute, deliver and perform the
terms of this Agreement.
(ii) This Agreement has been duly authorized, executed
and delivered by the Trustee and, assuming due
authorization, execution and delivery by the other
parties hereto, constitutes a legal, valid and
binding instrument enforceable against the Trustee
in accordance with its terms, except as such
enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in
general and by general equity principles
(regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) Neither the execution and delivery of this
Agreement by the Trustee nor the consummation by
the Trustee of the transactions herein contemplated
to be performed by the Trustee, nor compliance by
the Trustee with the provisions hereof, will
conflict with or result in a breach of, or
constitute a default under, any of the provisions
of any applicable law (subject to the appointment
in accordance with such applicable law of any
co-trustee or separate trustee required pursuant to
this Agreement), governmental rule, regulation,
judgment, decree or order binding on the Trustee or
its properties or the organizational documents of
the Trustee or the terms of any material agreement,
instrument or indenture to which the Trustee is a
party or by which it is bound.
(iv) There is no action, suit, proceeding or
investigation pending or, to the best knowledge of
the Trustee, threatened against the Trustee which,
either in any one instance or in the aggregate,
would result in any material adverse change in the
business, operations, financial condition,
properties or assets of the Trustee, or in any
material impairment of the right, or would, if
adversely determined, materially impair the ability
of the Trustee to carry on its business
substantially as now conducted, or result in any
material liability on the part of the Trustee, or
which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action
taken or to be taken in connection with the
obligations of the Trustee contemplated herein, or
which would be likely to impair materially the
ability of the Trustee to perform under the terms
of this Agreement; and
(v) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court
or governmental agency or body, is required for the
execution, delivery and performance by the Trustee of
or compliance by the Trustee with this Agreement, or
if required, such approval has been obtained prior to
the Cut-off Date.
SECTION 2.05. Execution and Delivery of Certificates;
Issuance of Lower-Tier Regular Interests.
The Trustee acknowledges the assignment to it of the Mortgage
Loans and the delivery of the Mortgage Files to the Custodian (to the extent the
documents constituting the Mortgage Files are actually delivered to the
Custodian), subject to the provisions of Section 2.01 and Section 2.02 and,
concurrently with such delivery, (i) acknowledges the issuance of and hereby
declares that it holds the Loan REMIC Regular Interests on behalf of the
Lower-Tier REMIC and the Holders of the Certificates; (ii) acknowledges the
issuance of and hereby declares that it holds the Lower-Tier Regular Interests
on behalf of the Upper-Tier REMIC and the Holders of the Regular Certificates
and the Class R Certificates and (iii) has caused to be executed and caused to
be authenticated and delivered to or upon the order of the Depositor, or as
directed by the terms of this Agreement, Class A-1, Class A-2, Class A-3, Class
A-4, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M-1, Class M-2, Class R and Class LR
Certificates in authorized denominations, in each case registered in the names
set forth in such order or so directed in this Agreement and duly authenticated
by the Authenticating Agent, which Certificates (described in the preceding
clause (iii)), Lower-Tier Regular Interests and Loan REMIC Regular Interests
evidence ownership of the entire Trust Fund.
SECTION 2.06. Miscellaneous REMIC and
Grantor Trust Provisions.
(a) The Class A-1-L, Class A-2-L, Class A-3-L, Class A-4-L,
Class X-X, Class C-L, Class D-L, Class E-L, Class F-L, Class G-L, Class H-L,
Class X-X, Class K-L, Class L-L, Class M-1-L and Class M-2-L Interests are
hereby designated as "regular interests" in the Lower-Tier REMIC within the
meaning of Section 860G(a)(1) of the Code, and the Class LR Certificates are
hereby designated as the sole Class of "residual interests" in the Lower-Tier
REMIC within the meaning of Section 860G(a)(2) of the Code. The Class A-1, Class
A-2, Class A-3, Class A-4, Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M-1 and Class M-2
Certificates represent undivided beneficial interests in "regular interests" in
the Upper-Tier REMIC within the meaning of Section 860G(a)(1) of the Code and
the Class R Certificates are hereby designated as the sole Class of "residual
interests" in the Upper-Tier REMIC within the meaning of Section 860G(a)(2) of
the Code. The Class X Certificates represent a "specified portion" of the
interest payments on the Class A-1-L, Class A-2-L, Class A-3-L, Class A-4-L,
Class X-X, Class C-L, Class D-L, Class E-L, Class F-L, Class G-l, Class H-L,
Class X-X, Class K-L, Class L-L, Class M-1-L and Class M-2-L Interests, within
the meaning of Treasury Regulations Section 1.860G-1(a)(2). The Closing Date is
hereby designated as the "Startup Day" of the Lower-Tier REMIC and the
Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the Code. The
"latest possible maturity date" of the Lower-Tier Regular Interests and the
Regular Certificates for purposes of Section 860G(a)(1) of the Code is the Rated
Final Distribution Date. The initial Certificate Balance of each Class of the
Lower-Tier Regular Interests is equal to the Certificate Balance of the Related
Certificates. The interest rate for each Class of Lower-Tier Regular Interests
is a per annum rate equal to the Weighted Average Net Mortgage Pass-Through
Rate.
(b) The Class X Certificates represent an undivided beneficial
interest in the right to receive the Repurchase Return of Premium Amount. The
Class A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M-1 and Class M-2
Certificates represent pro rata undivided beneficial interests in the Excess
Interest, in each case, equal to a fraction of which the numerator is the
initial Certificate Balance of such Class and the denominator is the aggregate
of the initial Certificate Balances of all such Classes.
(c) None of the Depositor, the Trustee, the Servicer, the
Fiscal Agent or the Special Servicer shall enter into any arrangement by which
the Trust Fund will receive a fee or other compensation for services other than
as specifically contemplated herein.
SECTION 2.07. Year 2000 Readiness.
Each of the Servicer and the Special Servicer shall take all
action reasonably necessary to ensure that its computer-based systems are able
to operate and effectively process data including dates on and after January 1,
2000. At the request of either of such parties, the other party shall provide
the requesting party with reasonable assurance of such other party's year 2000
readiness. The Trustee shall take such action as is reasonably necessary to cure
any deficiencies with regard to the processing or calculation of dates beyond
December 31, 1999 in the internally maintained computer software systems
maintained by the Trustee in the conduct of its trust business which would
materially and adversely affect its abilities to perform its obligations under
this Agreement. Without limiting any rights or remedies of the Trust Fund, the
Certificateholders or any other party hereto for a breach under any other
Section of this Agreement that may arise out of the failure of the Servicer, the
Special Servicer or the Trustee to be year 2000 ready before January 1, 2000,
the sole remedy of the Trust Fund, the Certificateholders and any other party
hereto with respect to a breach on the part of the Servicer, the Special
Servicer or the Trustee to comply with this Section 2.07 shall be to terminate
appointment of the defaulting party in accordance with the applicable provisions
of Article VII or Article VIII hereof, as applicable.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Special
Servicer to Act as Special Servicer;
Administration of the Mortgage Loans
(a) Subject to the servicing by Other Servicers and Other
Special Servicers of Split Loans with respect to which the Trustee is Co-Lender,
the Servicer and the Special Servicer, each as an independent contractor
servicer, shall service and administer (i) in the case of the Servicer, the
Mortgage Loans that are not Specially Serviced Mortgage Loans and (ii) in the
case of the Special Servicer, the Specially Serviced Mortgage Loans, each on
behalf of the Trust Fund and the Trustee (as trustee for Certificateholders) in
accordance with any and all applicable laws, the terms of this Agreement, the
terms of the respective Mortgage Loan and, to the extent consistent with the
foregoing, the Servicing Standard.
The Servicer's or Special Servicer's liability for actions and
omissions in its capacity as Servicer or Special Servicer, as the case may be,
hereunder is limited as provided herein (including, without limitation, pursuant
to Section 6.03 hereof). To the extent consistent with the foregoing and subject
to any express limitations set forth in this Agreement, the Servicer and Special
Servicer shall seek to maximize the timely and complete recovery of principal
and interest on the Notes; provided, however, that nothing herein contained
shall be construed as an express or implied guarantee by the Servicer or Special
Servicer of the collectability of the Mortgage Loans. Subject only to the
Servicing Standard, the Servicer and Special Servicer shall have full power and
authority, acting alone or through sub-servicers (subject to paragraph (c) of
this Section 3.01 and to Section 3.02), to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
consistent with the Servicing Standard and, in its reasonable judgment, in the
best interests of the Certificateholders, including, without limitation, with
respect to each Mortgage Loan, to prepare, 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 on each Mortgaged Property and related collateral; (ii)
subject to Sections 3.09, 3.10 and 3.29, any modifications, waivers, consents or
amendments 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, with
respect to the Mortgage Loans and the Mortgaged Properties. The Servicer and
Special Servicer shall provide to the Borrowers any reports required to be
provided to them pursuant to the Mortgage Loans. Subject to Section 3.11, the
Trustee shall, upon the receipt of a written request of a Servicing Officer,
execute and deliver to the Servicer and Special Servicer any powers of attorney
and other documents prepared by the Servicer and Special Servicer and necessary
or appropriate (as certified in such written request) to enable the Servicer and
Special Servicer to carry out their servicing and administrative duties
hereunder.
(b) To the extent permitted by the related Note, the Servicer,
as applicable, shall apply any partial Principal Prepayment received on a
Mortgage Loan on a date other than a Due Date to the principal balance of such
Mortgage Loan as of the Due Date immediately following the date of receipt of
such partial Principal Prepayment. To the extent allowed by the related Note,
the Servicer shall apply any amounts received on U.S. Treasury obligations
(which shall not be redeemed by the Servicer prior to the maturity thereof) in
respect of a Mortgage Loan that has been defeased pursuant to its terms to the
principal balance of and interest on such Mortgage Loan as of the Due Date
immediately following the receipt of such amounts.
(c) Each of the Servicer and the Special Servicer may enter
into sub-servicing agreements with third parties with respect to any of its
respective obligations hereunder, provided, that (i) any such agreement shall be
consistent with the provisions of this Agreement, (ii) no sub-servicer retained
by the Servicer or the Special Servicer, as applicable, shall grant any
modification, waiver or amendment to any Mortgage Loan without the approval of
the Servicer or the Special Servicer, as applicable, which approval shall be
given or withheld in accordance with the procedures set forth in Sections 3.09,
3.10, 3.28 or 3.29, and (iii) such agreement shall be consistent with the
Servicing Standard (to the extent consistent with this Agreement). Any such
sub-servicing agreement may permit the sub-servicer to delegate its duties to
agents or subcontractors so long as the related agreements or arrangements with
such agents or subcontractors are consistent with the provisions of this Section
3.01(c).
Any sub-servicing agreement entered into by the Servicer or
the Special Servicer, as applicable, shall provide that it may be assumed or
terminated by the Trustee or the Servicer, respectively, if the Trustee or the
Servicer, respectively, has assumed the duties of the Servicer or the Special
Servicer, respectively, or any successor Servicer or Special Servicer, as
applicable, without cost or obligation to the assuming or terminating party or
the Trust Fund, upon the assumption by such party of the obligations of the
Servicer or the Special Servicer, as applicable, pursuant to Section 7.02.
Any sub-servicing agreement entered into by the Servicer shall
provide that, with respect to any Mortgage Loan in which an Affiliate of the
sub-servicer holds any subordinate debt, preferred equity investment or
mezzanine debt of a related Borrower or its Affiliate, such sub-servicer may
sub-service such Mortgage Loan; provided, however, that the Servicer shall make
all decisions with respect to the administration of any such Mortgage Loan
including, without limitation, lease approvals, modifications, waivers and
amendments of the terms thereof, releases of collateral and transfers to special
servicing.
Any sub-servicing agreement, and any other transactions or
services relating to the Mortgage Loans involving a sub-servicer, shall be
deemed to be between the Servicer or the Special Servicer, as applicable, and
such sub-servicer alone, and the Trustee, the Trust Fund and the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the sub-servicer,
except as set forth in Section 3.01(d) and no provision herein may be construed
so as to require the Trust Fund to indemnify any such sub-servicer.
(d) If the Trustee or any successor Servicer assumes the
obligations of the Servicer, respectively, or if the Servicer or any successor
Special Servicer assumes the obligations of the Special Servicer, in each case
in accordance with Section 7.02, the Trustee, the Servicer or such successor, as
applicable, to the extent necessary to permit the Trustee, the Servicer or such
successor, as applicable, to carry out the provisions of Section 7.02, shall,
without act or deed on the part of the Trustee, the Servicer or such successor,
as applicable, succeed to all of the rights and obligations of the Servicer or
the Special Servicer, as applicable, under any sub-servicing agreement entered
into by the Servicer or the Special Servicer, as applicable, pursuant to Section
3.01(c), subject to the right of termination by the Trustee or Servicer, as
applicable, set forth in Section 3.01(c). In such event, the Trustee, the
Servicer or the successor Servicer or Special Servicer, as applicable, shall be
deemed to have assumed all of the Servicer's or Special Servicer's interest, as
applicable, therein (but not any liabilities or obligations in respect of acts
or omissions of the Servicer or the Special Servicer, as applicable, prior to
such deemed assumption) and to have replaced the Servicer or the Special
Servicer, as applicable, as a party to such sub-servicing agreement to the same
extent as if such sub-servicing agreement had been assigned to the Trustee, the
Servicer or such successor Servicer or successor Special Servicer, as
applicable, except that the Servicer or the Special Servicer, as applicable,
shall not thereby be relieved of any liability or obligations under such
sub-servicing agreement that accrued prior to the succession of the Trustee, the
Servicer or the successor Servicer or successor Special Servicer, as applicable.
In the event that the Trustee, the Servicer or any successor
Servicer or Special Servicer, as applicable, assumes the servicing obligations
of the Servicer or the Special Servicer, as applicable, upon request of the
Trustee, the Servicer or such successor Servicer or Special Servicer, as
applicable, the Servicer or Special Servicer shall at its own expense deliver to
the Trustee, the Servicer or such successor Servicer or Special Servicer, as
applicable, all documents and records relating to any sub-servicing agreement
and the Mortgage Loans then being serviced thereunder and an accounting of
amounts collected and held by it, if any, and will otherwise use its best
efforts to effect the orderly and efficient transfer of any sub-servicing
agreement to the Trustee, the Servicer or the successor Servicer or Special
Servicer, as applicable.
SECTION 3.02. Liability of the Servicer
and Special Servicer.
Notwithstanding any sub-servicing agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Servicer or Special Servicer and any Person acting as sub-servicer (or its
agents or subcontractors) or any reference to actions taken through any Person
acting as sub-servicer or otherwise, the Servicer or Special Servicer, as
applicable, shall remain obligated and primarily liable to the Trustee and
Certificateholders for the servicing and administering of the Mortgage Loans in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such sub-servicing agreements or
arrangements or by virtue of indemnification from the Depositor or any other
Person acting as sub-servicer (or its agents or subcontractors) to the same
extent and under the same terms and conditions as if the Servicer or Special
Servicer, as applicable, alone were servicing and administering the Mortgage
Loans. Each of the Servicer and the Special Servicer shall be entitled to enter
into an agreement with any sub-servicer providing for indemnification of the
Servicer or Special Servicer, as applicable, by such sub-servicer, and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification, but no such agreement for indemnification shall be deemed to
limit or modify this Agreement.
SECTION 3.03. Collection of Certain
Mortgage Loan Payments.
(a) The Servicer or the Special Servicer, as applicable, shall
use reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder, and shall
follow the Servicing Standard with respect to such collection procedures. With
respect to each Specially Serviced Mortgage Loan, the Special Servicer (and,
with respect to other Mortgage Loans, the Servicer) shall use its reasonable
efforts to collect income statements and rent rolls from Borrowers as required
by the Loan Documents and the terms hereof and each of the Servicer and Special
Servicer shall provide copies thereof to the other party as provided herein. The
Servicer shall provide at least six months' notice to the Borrowers of Balloon
Payments and Anticipated Repayment Dates coming due. Consistent with the
foregoing, the Servicer or Special Servicer, as applicable, may in its
discretion waive any late payment charge and/or Default Interest in connection
with any delinquent Monthly Payment or Balloon Payment with respect to any
Mortgage Loan. In addition, the Servicer shall be entitled to take such actions
with respect to the collection of payments on the Mortgage Loans as are
permitted or required under Section 3.28 hereof.
(b) In the event that the Servicer or Special Servicer
receives, or receives notice from the related Borrower that it will be
receiving, Excess Interest in any Collection Period, the Servicer or Special
Servicer, as applicable, will promptly notify the Trustee.
SECTION 3.04. Collection of Taxes, Assessments and Similar
Items; Escrow Accounts.
(a) With respect to each Mortgage Loan (other than any REO
Mortgage Loan), the Servicer shall maintain accurate records with respect to
each related Mortgaged Property reflecting the status of taxes, assessments and
other similar items that are or may become a lien on the related Mortgaged
Property and the status of insurance premiums payable with respect thereto. From
time to time, the Servicer shall (i) obtain all bills for the payment of such
items (including renewal premiums), and (ii) effect payment of all such bills
with respect to such Mortgaged Properties prior to the applicable penalty or
termination date, in each case employing for such purpose Escrow Payments as
allowed under the terms of the related Mortgage Loan. If a Borrower fails to
make any such payment on a timely basis or collections from the Borrower are
insufficient to pay any such item before the applicable penalty or termination
date (or, with respect to Mortgage Loans with no Escrow Accounts for such
purpose, upon determining (using efforts consistent with the Servicing Standard)
that the Borrower has not made such payment), the Servicer shall advance the
amount of any shortfall as a Property Advance unless the Servicer determines in
its good faith business judgment that such Advance would be a Nonrecoverable
Advance. The Servicer shall be entitled to reimbursement of Advances, with
interest thereon at the Advance Rate, that it makes pursuant to the preceding
sentence from amounts received on or in respect of the related Mortgage Loan
respecting which such Advance was made or if such Advance has become a
Nonrecoverable Advance, to the extent permitted by Section 3.06 of this
Agreement. No costs incurred by the Servicer in effecting the payment of taxes
and assessments on the Mortgaged Properties shall, for the purpose of
calculating distributions to Certificateholders, be added to the amount owing
under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
The Special Servicer shall give the Servicer and the Trustee
not less than five Business Days' notice with respect to Property Advances to be
made on any Specially Serviced Mortgage Loan, before the date on which the
Servicer is required to make any Property Advance with respect to a given
Mortgage Loan or REO Property; provided, however, that only two Business Days'
notice shall be required in respect of Property Advances required to be made on
an urgent or emergency basis (which may include, without limitation, Property
Advances required to make tax or insurance payments). In addition, the Special
Servicer shall provide the Servicer and the Trustee with such information in its
possession as the Servicer or the Trustee, as applicable, may reasonably request
to enable the Servicer or the Trustee, as applicable, to determine whether a
requested Advance would constitute a Nonrecoverable Advance. Any request by the
Special Servicer that the Servicer make a Property Advance shall be deemed to be
a determination by the Special Servicer that such requested Property Advance is
not a Nonrecoverable Advance, and the Servicer shall be entitled to conclusively
rely on such determination; provided, however, that the Special Servicer shall
not be liable to the Trust Fund or the Servicer if such Advance shall be
non-recoverable. On the fourth Business Day before each Distribution Date, the
Special Servicer shall report to the Servicer the Special Servicer's
determination as to whether any Property Advance previously made with respect to
a Specially Serviced Mortgage Loan or REO Mortgage Loan is a Nonrecoverable
Advance. The Servicer shall be entitled to conclusively rely on such a
determination; provided, however, that the Special Servicer shall not be liable
to the Trust Fund or the Servicer if such Advance shall be non-recoverable.
(b) The Servicer shall segregate and hold all funds collected
and received pursuant to any Mortgage Loan constituting Escrow Payments separate
and apart from any of its own funds and general assets, and shall establish and
maintain one or more segregated custodial accounts (each, an "Escrow Account")
into which all Escrow Payments shall be deposited within one (1) Business Day
after receipt by the Servicer. The Servicer shall also deposit into each Escrow
Account any amounts representing losses on Permitted Investments pursuant to
Section 3.07(b) and any Insurance Proceeds or Liquidation Proceeds which are
required to be applied to the restoration or repair of any Mortgaged Property
pursuant to the related Mortgage Loan. Escrow Accounts shall be Eligible
Accounts (except to the extent the related Mortgage Loan requires it to be held
in an account that is not an Eligible Account) and shall be entitled "First
Union National Bank, as Servicer, in trust for LaSalle National Bank, as Trustee
in trust for Holders of Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, and Various Borrowers." Withdrawals
from an Escrow Account may be made by the Servicer, as applicable, only:
(i) to effect timely payments of items with respect to
which Escrow Payments for the related Mortgage were
collected;
(ii) to transfer funds to the Collection Account to
reimburse the Servicer, the Trustee or the Fiscal
Agent, as applicable, for any Advance (with
interest thereon at the Advance Rate) relating to
Escrow Payments, but only from amounts received
with respect to the related Mortgage Loan which
represent late collections of Escrow Payments
thereunder;
(iii) for application to the restoration or repair of the
related Mortgaged Property in accordance with the
related Mortgage Loan and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement;
(v) to pay from time to time to the related Borrower any
interest or investment income earned on funds
deposited in the Escrow Account if such income is
required to be paid to the related Borrower under law
or by the terms of the Mortgage Loan, or otherwise to
the Servicer; and
(vi) to remove any funds deposited in an Escrow Account
that were not required to be deposited therein.
SECTION 3.05. Collection Account, Distribution Account,
Upper-Tier Distribution Account, Excess
Interest Distribution Account and
Repurchase Price Return of Premium
Distribution Account.
(a) The Servicer shall establish and maintain a Collection
Account in the Trustee's name, for the benefit of the Certificateholders and the
Trustee as the Holder of the Lower-Tier Regular Interests and the Loan REMIC
Regular Interests. The Collection Account shall be established and maintained as
an Eligible Account. The Servicer shall deposit or cause to be deposited in the
Collection Account within one Business Day following receipt the following
payments and collections received or made by it on or with respect to the
Mortgage Loans:
(i) all payments on account of principal on the
Mortgage Loans, including the principal component
of Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage
Loans and the interest portion of all Unscheduled
Payments and all Prepayment Premiums;
(iii) any amounts required to be deposited pursuant to
Section 3.07(b), in connection with net losses
realized on Permitted Investments with respect to
funds held in the Collection Account;
(iv) all Net REO Proceeds withdrawn from an REO Account
pursuant to Section 3.17(b) and all Net Insurance
Proceeds and Net Liquidation Proceeds;
(v) any amounts received from Borrowers which represent
recoveries of Property Protection Expenses, to the
extent not permitted to be retained by the Servicer
as provided herein;
(vi) any other amounts required by the provisions of this
Agreement to be deposited into the Collection Account
by the Servicer or Special Servicer, including,
without limitation, proceeds of any repurchase of a
Mortgage Loan pursuant to Sections 2.03(d) and (e)
hereof; and
(vii) any Servicer Prepayment Interest Shortfalls.
The foregoing requirements for deposits in the Collection
Account shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments in the nature of late payment
charges, Default Interest, Assumption Fees, loan modification fees, loan service
transaction fees, extension fees, demand fees, beneficiary statement charges and
similar fees need not be deposited in the Collection Account by the Servicer
and, to the extent permitted by applicable law, the Servicer or the Special
Servicer, as applicable in accordance with Section 3.12 hereof, shall be
entitled to retain any such charges and fees received with respect to the
Mortgage Loans. Payments in the nature of Escrow Payments and amount to be
deposited to Reserve Accounts need not be deposited in the Collection Account by
the Servicer. In the event that the Servicer deposits in the Collection Account
any amount not required to be deposited therein, the Servicer may at any time
withdraw such amount from the Collection Account.
(b) The Trustee shall establish and maintain the Distribution
Account in the name of the Trustee, in trust for the benefit of the
Certificateholders and the Trustee as the Holder of the Loan REMIC Regular
Interests and the Lower-Tier Regular Interests. The Distribution Account shall
be established and maintained as an Eligible Account. The Distribution Account
shall be established and maintained as an Eligible Account. With respect to each
Distribution Date, the Servicer will deposit in the Distribution Account, to the
extent of funds on deposit in the Collection Account, on the Servicer Remittance
Date an aggregate amount of immediately available funds equal to the sum of
Available Funds, Prepayment Premiums and the Trustee's Fee pursuant to the terms
of Section 4.06(b). The Servicer will deposit all P&I Advances into the
Distribution Account on the related Servicer Remittance Date pursuant to the
terms of Section 4.06(b). To the extent the Servicer fails to do so, the Trustee
or the Fiscal Agent will deposit all P&I Advances into the Distribution Account.
All such amounts deposited in respect of the Atlanta Marriott Loan, the DDRA
Loan and the Overland MHP Loan shall be deemed to be distributed in respect of
the related Loan REMIC Regular Interests.
(c) The Trustee shall establish and maintain the Upper-Tier
Distribution Account in the name of the Trustee, in trust for the benefit of the
Certificateholders (other than the Class LR Certificateholders). The Upper-Tier
Distribution Account shall be established and maintained as an Eligible Account.
With respect to each Distribution Date, the Trustee shall withdraw from the
Distribution Account and deposit in the Upper-Tier Distribution Account on or
before such date the amount of Available Funds (including P&I Advances) and
Prepayment Premiums to be distributed in respect of the Lower-Tier Regular
Interests pursuant to Section 4.01(a)(i), Section 4.01(a)(ii) and Section
4.01(a)(iii) hereof on such date. Notwithstanding anything herein to the
contrary, the Upper-Tier Distribution Account may be maintained as a subaccount
of the Distribution Account; provided, that accounts shall be maintained in a
manner sufficient to identify the deposits thereto and withdrawals therefrom.
(d) Prior to the Servicer Remittance Date relating to any
Collection Period in which Excess Interest is received, the Trustee shall
establish and maintain the Excess Interest Distribution Account in the name of
the Trustee in trust for the benefit of the Holders of the Class A-2, Class A-3,
Class A-4, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M-1 and Class M-2 Certificates. The Excess Interest
Distribution Account shall be established and maintained as an Eligible Account.
On or before the Servicer Remittance Date related to the applicable Distribution
Date (in accordance with the allocation priorities set forth in Section 3.28(d)
to the extent applicable), the Servicer shall remit to the Trustee for deposit
in the Excess Interest Distribution Account an amount equal to the Excess
Interest received during the applicable Collection Period. Following the
distribution of Excess Interest to Certificateholders on the first Distribution
Date after which there are no longer any Mortgage Loans outstanding which
pursuant to their terms could pay Excess Interest, the Trustee shall terminate
the Excess Interest Distribution Account.
(e) Prior to the Servicer Remittance Date relating to any
Collection Period in which any Repurchase Return of Premium Amount is received,
the Trustee shall establish and maintain the Repurchase Price Return of Premium
Distribution Account in the name of the Trustee in trust for the benefit of the
Holders of the Class X Certificates. The Repurchase Price Return of Premium
Distribution Account shall be established and maintained as an Eligible Account.
On or before the Servicer Remittance Date related to the applicable Distribution
Date (in accordance with the allocation priorities set forth in Section 3.28(d)
to the extent applicable), the Servicer shall remit to the Trustee for deposit
in the Repurchase Price Return of Premium Distribution Account an amount equal
to the Repurchase Return of Premium Amount received during the applicable
Collection Period. Following the distribution of such amount to
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Return of Premium Amount, the Trustee shall terminate the Repurchase Price
Return of Premium Distribution Account.
(f) Funds in the Collection Account, the Distribution Account,
the Upper-Tier Distribution Account, the Excess Interest Distribution Account
and the Repurchase Price Return of Premium Distribution Account may be invested
in Permitted Investments in accordance with the provisions of Section 3.07. The
Servicer shall give written notice to the Trustee of the location and account
number of the Collection Account and shall notify the Trustee in writing prior
to any subsequent change thereof.
SECTION 3.06. Permitted Withdrawals from the Collection
Account.
The Servicer may make withdrawals from the Collection Account
only as described below (the order set forth below not constituting an order of
priority for such withdrawals):
(i) to remit to the Trustee for deposit in the
Distribution Account, the Interest Reserve Account,
Excess Interest Distribution Account and the
Repurchase Price Return of Premium Distribution
Account, the amounts required to be deposited in
the Distribution Account, the Interest Reserve
Account, the Excess Interest Distribution Account
and the Repurchase Price Return of Premium
Distribution Account pursuant to Sections 4.06,
3.27(a), 3.05(b), 3.05(d) and 3.05(e);
(ii) to pay or reimburse the Trustee, the Fiscal Agent,
the Servicer and, with respect to Co-Lender Split
Notes, the Other Servicer or Other Special Servicer
in accordance with Section 3.31 hereof for Advances
(provided, that the Trustee and the Fiscal Agent
shall have priority with respect to such payment or
reimbursement), the Servicer's right to reimburse
any such Person pursuant to this clause (ii) being
limited to (x) any collections on or in respect of
the particular Mortgage Loan or REO Property with
respect to which such Advance was made, or (y) any
other amounts in the Collection Account in the
event that such Advances, and any Property Advances
made by the Lead Lender with respect to the Other
Note required to be, but not reimbursed by the
Other Trust Fund as provided in Section 3.31, or
any Advance Interest Amount have been deemed to be
Nonrecoverable Advances or are not reimbursed from
recoveries in respect of the related Mortgage Loan
or REO Property after a Final Recovery
Determination;
(iii) (A) to pay to the Servicer, the Trustee or the
Fiscal Agent the Advance Interest Amount relating
to P&I Advances and (B) to pay to the Servicer,
Trustee or Fiscal Agent any Advance Interest
Amounts not relating to any P&I Advances, in each
case, first, out of any Default Interest collected
in the related Collection Period and, otherwise,
out of general collections on the Mortgage Loans
and any REO Properties (provided that in the case
of both (A) and (B), the Trustee and the Fiscal
Agent shall have priority with respect to such
payments);
(iv) to pay on or before each Servicer Remittance Date
to the Servicer and the Special Servicer, as
applicable, as compensation, the aggregate unpaid
Servicing Compensation and Special Servicing
Compensation (if any) and any other servicing or
special servicing compensation, as applicable, in
respect of the related Collection Period, to be
paid, in the case of the Servicing Fee, from
amounts received or advanced on the related
Mortgage Loan (or if not so received or advanced,
from other funds on deposit in the Collection
Account), and to pay from time to time to the
Servicer in accordance with Section 3.07(b) any
interest or investment income earned on funds
deposited in the Collection Account (the Servicer
may rely on a certification of the Special Servicer
as to amounts of Special Servicing Compensation to
be withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal
to the Trustee Fee in respect of the immediately
preceding month to be paid from interest received on
the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the
Depositor, the appropriate Mortgage Loan Seller or
other Originator, as the case may be, with respect
to each Mortgage Loan or REO Property that has
previously been purchased or repurchased by it
pursuant to Section 2.03(d), Section 2.03(e),
Section 3.18 or Section 9.01, all amounts received
thereon during the related Collection Period and
subsequent to the date as of which the amount
required to effect such purchase or repurchase was
determined;
(vii) to the extent not reimbursed or paid pursuant to
any other clause of this Section 3.06, to reimburse
or pay the Servicer, the Trustee, the Special
Servicer, the Depositor or the Fiscal Agent, as
applicable, for unpaid Servicing Fees, Trustee
Fees, Special Servicing Compensation and other
unpaid items incurred by such Person pursuant to
the second sentence of Section 3.07(c), Section
3.08(a) and (b), Section 3.10, Section 3.12(c),
Section 3.17(a), (b) and (c), Section 3.31(d),
Section 6.03, Section 7.04, Section 8.01(c)(v),
Section 8.05(d) or Section 10.07, or any other
provision of this Agreement pursuant to which such
Person is entitled to reimbursement or payment from
the Trust Fund, in each case only to the extent
reimbursable under such Section, it being
acknowledged that this clause (vii) shall not be
deemed to modify the substance of any such Section,
including the provisions of such Section that set
forth the extent to which one of the foregoing
Persons is or is not entitled to payment or
reimbursement;
(viii) to transfer to the Trustee for deposit in one or
more separate, non-interest bearing accounts any
amount reasonably determined by the Trustee to be
necessary to pay any applicable federal, state or
local taxes imposed on the Upper-Tier REMIC, the
Lower-Tier REMIC or any Loan REMIC under the
circumstances and to the extent described in
Section 4.05;
(ix) to withdraw any amount deposited into the Collection
Account that was not required to be deposited
therein; and
(x) to clear and terminate the Collection Account
pursuant to Section 9.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to subclauses (i)-(vii) above.
The Servicer shall pay to the Trustee, the Fiscal Agent or the
Special Servicer from the Collection Account (to the extent permitted by clauses
(i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent
or the Special Servicer therefrom, promptly upon receipt of a certificate of a
Responsible Officer of the Trustee or the Fiscal Agent or a certificate of a
Servicing Officer, as applicable, describing the item and amount to which such
Person is entitled. The Servicer may rely conclusively on any such certificate
and shall have no duty to recalculate the amounts stated therein.
The Trustee, the Fiscal Agent, the Special Servicer and the
Servicer shall in all cases have a right prior to the Certificateholders to any
funds on deposit in the Collection Account from time to time for the
reimbursement or payment of the Servicing Compensation (including investment
income), or Trustee Fees, Special Servicing Compensation, Advances, Advance
Interest Amounts, their respective expenses hereunder to the extent such fees
and expenses are to be reimbursed or paid from amounts on deposit in the
Collection Account pursuant to this Agreement (and to have such amounts paid
directly to third party contractors for any invoices approved by the Trustee,
the Servicer or the Special Servicer, as applicable) and any federal, state or
local taxes imposed on either the Upper-Tier REMIC, the Lower-Tier REMIC or any
Loan REMIC.
SECTION 3.07. Investment of Funds in the Collection
Account and Borrower Accounts.
(a) The Servicer (or with respect to any REO Account, the
Special Servicer) may direct any depository institution maintaining the
Collection Account, the REO Account and any Borrower Accounts (subject to the
second succeeding sentence) (each, for purposes of this Section 3.07, an
"Investment Account"), to invest the funds in such Investment Account in one or
more Permitted Investments that bear interest or are sold at a discount, and
that mature, unless payable on demand, no later than the Business Day preceding
the date on which such funds are required to be withdrawn from such Investment
Account pursuant to this Agreement. Any direction by the Servicer or the Special
Servicer to invest funds on deposit in an Investment Account shall be in writing
and shall certify that the requested investment is a Permitted Investment which
matures at or prior to the time required hereby or is payable on demand. In the
case of any Escrow Account, Lock-Box Account, Cash Collateral Account or Reserve
Account (the "Borrower Accounts"), the Servicer shall act upon the written
request of the related Borrower or Manager to the extent the Servicer is
required to do so under the terms of the respective Mortgage Loan or related
documents, provided that in the absence of appropriate written instructions from
the related Borrower or Manager meeting the requirements of this Section 3.07,
the Servicer shall have no obligation to, but will be entitled to, direct the
investment of funds in such accounts in Permitted Investments. 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) or in the name of a nominee of the Trustee.
The Trustee shall have sole control (except with respect to investment direction
which shall be in the control of the Servicer (or the Special Servicer, with
respect to any REO Accounts), as an independent contractor to the Trust Fund)
over each such investment and any certificate or other instrument evidencing any
such investment shall be delivered directly to the Trustee or its agent (which
shall initially be the Servicer), together with any document of transfer, if
any, necessary to transfer title to such investment to the Trustee or its
nominee. The Trustee shall have no responsibility or liability with respect to
the investment directions of the Servicer, the Special Servicer, any Borrower or
Manager or any losses resulting therefrom, whether from Permitted Investments or
otherwise. Neither the Special Servicer nor the Servicer shall have any
responsibility or liability with respect to the investment directions of any
Borrower or Manager or each other or any losses resulting therefrom, whether
from Permitted Investments or otherwise. In the event amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable on
demand, the Servicer (or the Special Servicer, as applicable), 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 (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 Servicer (or the Special Servicer, as
applicable) that such Permitted Investment
would not constitute a Permitted
Investment in respect of funds thereafter
on deposit in the related Investment
Account.
(b) All income and gain realized from investment of funds
deposited in any Investment Account shall be for the benefit of the Servicer
(except with respect to the investment of funds deposited in (i) any Borrower
Account, which shall be for the benefit of the related Borrower to the extent
required under the Mortgage Loan or applicable laws, or (ii) any REO Account,
which shall be for the benefit of the Special Servicer) and, if held in the
Collection Account or REO Account shall be subject to withdrawal by the Servicer
or the Special Servicer, as applicable, in accordance with Section 3.06 or
Section 3.17(b), as applicable. The Servicer (or with respect to any REO
Account, the Special Servicer) shall deposit from its own funds into the
applicable Investment Account the amount of any loss incurred in respect of any
such Permitted Investment immediately upon realization of such loss; provided
that neither the Servicer nor the Special Servicer shall be required to deposit
any loss on an investment of funds in an Investment Account if such loss is
incurred solely as a result of the insolvency of the federal or state chartered
depository institution or trust company that holds such Investment Account, so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made, and provided, further, however, that the Servicer or
Special Servicer, as applicable, may reduce the amount of such payment to the
extent it forgoes any investment income in such Investment Account otherwise
payable to it. Subject to the provisos in the immediately preceding sentence,
the Servicer shall also deposit from its own funds in any Borrower Account the
amount of any loss incurred in respect of Permitted Investments immediately upon
the realization of such loss, except to the extent that amounts are invested for
the benefit of the Borrower under the terms of 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, the Trustee or, if the Servicer maintains the account in
which such Permitted Investment is held, the Servicer in the name of the Trustee
may, and upon the request of Holders of Certificates representing greater than
50% of the Percentage Interests of any Class shall, take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. In the event the Trustee takes any
such action, the Trust Fund shall pay or reimburse the Trustee for all
reasonable out-of-pocket expenses, disbursements and advances incurred or made
by the Trustee in connection therewith. In the event that the Trustee does not
take any such action, the Servicer may take such action at its own cost and
expense, except with respect to any Borrower Account as to which the related
Borrower directs investments, which shall be at the expense of the Trust Fund.
SECTION 3.08. Maintenance of Insurance Policies and
Errors and Omissions and Fidelity
Coverage.
(a) The Servicer, on behalf of the Trustee, as mortgagee,
shall cause the related Borrower to maintain, to the extent required by each
Mortgage Loan (other than REO Mortgage Loans), and if the Borrower does not so
maintain, shall itself maintain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) to the extent the Trustee as mortgagee has
an insurable interest and to the extent available at commercially reasonable
rates, (i) fire and hazard insurance with extended coverage on the related
Mortgaged Property in an amount which is at least equal to the lesser of (A) one
hundred percent (100%) of the then "full replacement cost" of the improvements
and equipment (excluding foundations, footings and excavation costs), without
deduction for physical depreciation, and (B) the outstanding principal balance
of the related Mortgage Loan, or such greater amount as is necessary to prevent
any reduction in such policy by reason of the application of co-insurance and to
prevent the Trustee thereunder from being deemed a co-insurer and provided such
policy shall include a "replacement cost" rider, (ii) insurance providing
coverage against 18 months of rent interruptions or such longer period or with
such extended period endorsement as provided in the related Mortgage or other
loan document and (iii) such other insurance as is required in the related
Mortgage Loan. All insurance referred to above for Mortgaged Properties shall be
from a Qualified Insurer. The Special Servicer shall maintain fire and hazard
insurance with extended coverage on each REO Property (subject to the provisions
of this Agreement concerning Nonrecoverable Advances) in an amount which is at
least equal to one hundred percent (100%) of the then "full replacement cost" of
the improvements and equipment (excluding foundations, footings and excavation
costs), without deduction for physical depreciation. If the Special Servicer
does not maintain the insurance described in the preceding sentence or the
required flood insurance described below, the Servicer shall, as soon as
practicable after receipt of notice of such failure, maintain such insurance,
and if the Servicer does not maintain such insurance, the insurance required in
the first sentence of this Section 3.08(a) or the required flood insurance
described below (if the related Borrower fails to maintain such insurance), the
Trustee shall, as soon as practicable after receipt of notice of such failure,
maintain such insurance and if the Trustee does not maintain such insurance, the
Fiscal Agent shall do so, provided that, in each such case, such obligation will
be subject to the provisions of this Agreement concerning Nonrecoverable
Advances. The Special Servicer shall maintain, with respect to each REO Property
(i) public liability insurance providing such coverage against such risks as the
Special Servicer determines, consistent with the related Mortgage and the
Servicing Standard, to be in the best interests of the Trust Fund, (ii)
insurance providing coverage against 24 months of rent interruptions and (iii)
such other insurance as was required pursuant to the terms of the related
Mortgage Loan. All insurance for an REO Property shall be from a Qualified
Insurer. Any amounts collected by the Servicer or the Special Servicer under any
such policies (other than amounts required to be applied to the restoration or
repair of the related Mortgaged Property or amounts to be released to the
Borrower in accordance with the terms of the related Mortgage or Note or other
document in the Mortgage File or in accordance with the Servicing Standard)
shall be deposited into the Collection Account pursuant to Section 3.05, subject
to withdrawal pursuant to Section 3.06. Any cost incurred by the Servicer,
Special Servicer, Trustee or Fiscal Agent in maintaining any such insurance
shall not, for the purpose of calculating distributions to Certificateholders,
be added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. It is understood
and agreed that no other additional insurance other than flood insurance or
earthquake insurance subject to the conditions set forth below is to be required
of any Borrower or to be maintained by the Servicer other than pursuant to the
terms of the related Mortgage and pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. If the Mortgaged Property (other than an REO Property) is
located in a federally designated special flood hazard area, and the Servicer,
in performing its obligations hereunder in accordance with the Servicing
Standard, is aware of such location, the Servicer shall use its reasonable best
efforts to cause the related Borrower to maintain, to the extent required by
each Mortgage Loan, and if the related Borrower does not so maintain, will
itself obtain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances), to the extent available at commercially reasonable
rates, flood insurance in respect thereof. Such flood insurance shall be in an
amount equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan and (ii) the maximum amount of such insurance required by the
terms of the related Mortgage and as is available for the related property under
the national flood insurance program (assuming that the area in which such
property is located is participating in such program). If an REO Property (i) is
located in a federally designated special flood hazard area or (ii) is related
to a Mortgage Loan pursuant to which earthquake insurance was in place at the
time of origination and continues to be available at commercially reasonable
rates, the Special Servicer will obtain (and direct the Servicer to advance
amounts in order to obtain, subject to the provisions of this Agreement
concerning Nonrecoverable Advances and the second paragraph of Section 3.04(a))
flood insurance and/or earthquake insurance in respect thereof providing
substantially the same coverage as described in the preceding sentences or, with
respect to earthquake insurance, in the amount required by the Mortgage Loan or,
if not specified, in-place at origination. If at any time during the term of
this Agreement a recovery under a flood or fire and hazard or earthquake
insurance policy in respect of an REO Property is not available but would have
been available if such insurance were maintained thereon in accordance with the
standards applied to Mortgaged Properties described herein, the Special Servicer
shall (subject to the provisions of this Agreement concerning Nonrecoverable
Advances) either (i) immediately deposit into the Collection Account from its
own funds the amount that would have been recovered or (ii) apply to the
restoration and repair of the property from its own funds the amount that would
have been recovered, if such application would be consistent with the Servicing
Standard; provided, however, that the Special Servicer shall not be responsible
for any shortfall in insurance proceeds resulting from an insurer's refusal or
inability to pay a claim. In the case of any insurance otherwise required to be
maintained pursuant to this Section that is not being so maintained because the
Servicer or the Special Servicer, as applicable, has determined that it is not
available at commercially reasonable rates, the Servicer or the Special
Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee
and each Rating Agency which details the steps that were taken in seeking such
insurance and the factors which led to the determination that such insurance was
not so available. Costs to the Servicer or Special Servicer of maintaining
insurance policies pursuant to this Section 3.08 and any costs of obtaining a
confirmation from S&P and Xxxxx'x as contemplated below shall be paid by the
Servicer as a Property Advance and shall be reimbursable to the Servicer with
interest at the Advance Rate, which reimbursement may be effected under Section
3.06(ii) or (vii).
The Special Servicer agrees that it will notify the Servicer
of any change of any insurer of any Mortgaged Property or any other change with
respect to the insurance coverage of any Mortgaged Property, to the extent it
becomes aware of such change.
Each of the Servicer (or the Special Servicer, with respect to
the Specially Serviced Mortgage Loans and REO Properties), agrees to prepare and
present, on behalf of itself, the Trustee and the Certificateholders, claims
under each related insurance policy maintained pursuant to this Section 3.08(a)
in a timely fashion in accordance with the terms of such policy and to take such
reasonable steps as are necessary to receive payment or to permit recovery
thereunder.
All insurance policies required hereunder shall name (i) the
Trustee or (ii) the Servicer or the Special Servicer, on behalf of the Trustee
as the mortgagee, as loss payee.
Any determination made by the Servicer or the Special Servicer
that insurance is not commercially reasonably available shall be subject to
confirmation by S&P and Xxxxx'x that such determination not to purchase such
insurance will not result in a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates rated by S&P and Xxxxx'x,
provided that the Servicer and the Special Servicer shall not be required to
maintain such insurance while S&P and Xxxxx'x consider such determination.
(b) (I) If the Servicer or the Special Servicer, as
applicable, obtains and maintains a blanket insurance policy insuring against
fire and hazard losses on all of the Mortgaged Properties (other than REO
Properties) as to which the related Borrower has not maintained insurance
required by the related Mortgage Loan or on all of the REO Properties, as the
case may be, it shall conclusively be deemed to have satisfied its respective
obligations concerning the maintenance of insurance coverage set forth in
Section 3.08(a). Any such blanket insurance policy shall be maintained with a
Qualified Insurer. A blanket insurance policy may contain a deductible clause,
in which case the Servicer or the Special Servicer, as applicable, shall, in the
event that (i) there shall not have been maintained on the related Mortgaged
Property a policy otherwise complying with the provisions of Section 3.08(a),
and (ii) there shall have been one or more losses which would have been covered
by such a policy had it been maintained, immediately deposit into the Collection
Account from its own funds the amount not otherwise payable under the 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 any such deductible limitation, the deductible limitation
which is consistent with the Servicing Standard. In connection with its
activities as Servicer or Special Servicer hereunder, as applicable, the
Servicer or the Special Servicer, respectively, agrees to prepare and present,
on behalf of itself, the Trustee and Certificateholders, claims under any such
blanket policy which it maintains in a timely fashion in accordance with the
terms of such policy and to take such reasonable steps as are necessary to
receive payment or permit recovery thereunder.
(II) If the Servicer or Special Servicer, as
applicable, causes any Mortgaged Property or REO Property to be covered by a
master force placed insurance policy, such policy shall be issued by a Qualified
Insurer and provide no less coverage in scope and amount for such Mortgaged
Property or REO Property than the insurance required to be maintained pursuant
to Section 3.08(a) in which case the Servicer or Special Servicer shall
conclusively be deemed to have satisfied its respective obligations to maintain
insurance pursuant to Section 3.08(a). Such policy may contain a deductible
clause, in which case the Servicer or the 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 3.08(a), and (ii) there shall have been one or more losses
which would have been covered by such a policy had it been maintained,
immediately deposit into the Collection Account from its own funds the amount
not otherwise payable under such policy because of such deductible to the extent
that any such deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard.
(c) The Servicer and the Special Servicer shall maintain a
fidelity bond in the form and amount that would meet the servicing requirements
of prudent institutional commercial mortgage lenders and loan servicers with the
Trustee named as loss payee. The Servicer and the Special Servicer each shall be
deemed to have complied with this provision if one of its respective Affiliates
has such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to the Servicer and the Special Servicer,
as applicable. In addition, the Servicer and the Special Servicer shall keep in
force during the term of this Agreement a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers and
employees in connection with its obligations to service the Mortgage Loans
hereunder in the form and amount that would meet the servicing requirements of
prudent institutional commercial mortgage lenders and loan servicers with the
Trustee named as loss payee. The Servicer or the Special Servicer shall cause
each and every sub-servicer for it to maintain, or cause to be maintained by any
agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer,
a fidelity bond and an errors and omissions insurance policy which satisfy the
requirements for the fidelity bond and the errors and omissions policy to be
maintained by the Servicer or the Special Servicer, as applicable, pursuant to
this Section 3.08(c). All fidelity bonds and policies of errors and omissions
insurance obtained under this Section 3.08(c) shall be issued by a Qualified
Insurer.
SECTION 3.09. Enforcement of Due-On-Sale Clauses;
Assumption Agreements; Defeasance Provisions.
(a) If any Mortgage Loan contains a provision in the nature of
a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the
sale or other transfer of an interest in the related
Mortgaged Property, or
(ii) provides that such Mortgage Loan may not be assumed
without the consent of the related mortgagee in
connection with any such sale or other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Servicer shall notify the Special Servicer of requests for waiver of or any
breach of any due-on-sale or due on encumbrance clause of which the Servicer has
actual knowledge and deliver copies of all related Mortgage Files (either in
electronic or hard copy form, as mutually agreed upon by the Servicer and the
Special Servicer) to the Special Servicer (and the Depositor will pay the
reasonable costs in obtaining such copies; provided, that if the Depositor does
not pay such costs within 30 days of the request thereof by the Servicer, such
costs shall constitute a Property Advance hereunder) and, except as provided in
the next sentence, the Servicer or the Special Servicer, as applicable, shall
enforce such due on sale clauses. With respect to non-Specially Serviced
Mortgage Loans, the Servicer, after consulting with the Special Servicer, and
(with respect to Specially Serviced Mortgaged Loans) the Special Servicer, on
behalf of the Trust Fund, shall not be required to enforce such due-on-sale
clause and in connection therewith shall not be required to (x) accelerate
payments thereon or (y) withhold its consent to such an assumption to the extent
permitted under the terms of the related Mortgage Loan if (A) such provision is
not exercisable under applicable law or such exercise is reasonably likely to
result in meritorious legal action by the Borrower or (B) the Servicer (after
consulting with the Special Servicer) or the Special Servicer, as applicable,
determines, in accordance with the Servicing Standard, that permitting such
assumption or granting such consent would be likely to result in an equal or
greater recovery, on a present value basis (discounting at the related Mortgage
Rate) than would enforcement of such clause. If the Servicer or the Special
Servicer, as applicable, determines that permitting such assumption or granting
of such consent would likely result in an equal or greater recovery or such
provision is not legally enforceable, the Servicer or the Special Servicer, as
applicable, is authorized to take or enter into an assumption agreement from or
with the Person to whom the related Mortgaged Property has been or is about to
be conveyed, and to release the original Borrower from liability upon the
Mortgage Loan and substitute the new Borrower as obligor thereon, provided, that
(a) the credit status of the prospective new Borrower is in compliance with the
Special Servicer's regular commercial mortgage origination or servicing
standards and criteria and the terms of the related Mortgage and (b) the
Servicer or the Special Servicer, as applicable, has received written
confirmation from each of S&P and Xxxxx'x that such assumption or substitution
would not, in and of itself, cause a downgrade, qualification or withdrawal of
the then-current ratings assigned to the Certificates; provided, however, that
if the Stated Principal Balance of such Mortgage Loan or group of
cross-collateralized Mortgage Loans or group of Mortgage Loans to affiliated
Borrowers, as the case may be, is less than the lesser of (x) 2% of the total
aggregate Stated Principal Balances of the Mortgage Loans as of the day
immediately prior to the date of determination and (y) $30,000,000, and is not,
at the time of determination, one of the ten largest Mortgage Loans in the Trust
Fund, such written confirmation shall not be required from any of the Rating
Agencies. In connection with each such assumption or substitution entered into
by the Servicer or the Special Servicer, as applicable, the Servicer shall give
prior notice thereof to the Special Servicer and the Special Servicer shall give
prior notice thereof to the Servicer. The Servicer or the Special Servicer, as
applicable, shall notify the Trustee that any such assumption or substitution
agreement has been completed by forwarding to the Trustee (with a copy to the
Servicer) the original copy of such agreement, which copies shall be added to
the related Mortgage File and shall, for all purposes, be considered a part of
such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. In connection with the requirement under this
Section 3.09(a) that the Servicer notify and consult the Special Servicer with
respect to any consent to an assumption, the Servicer shall provide five
Business Days' notice of such consultation and shall provide all information in
the possession of the Servicer reasonably requested by the Special Servicer. If
the Special Servicer is not reasonably available for such consultation within
five Business Days after notice and receipt by the Special Servicer of copies of
the related Mortgage File, the Servicer will be deemed to have fulfilled its
obligation to consult with the Special Servicer.
(b) If any Mortgage Loan contains a provision in the nature of
a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the
creation of any lien or other encumbrance on the
related Mortgaged Property, or
(ii) requires the consent of the related mortgagee to the
creation of any such lien or other encumbrance on the
related Mortgaged Property,
then, except as provided in the next sentence, the Special Servicer shall
enforce such due-on-encumbrance clause. The Special Servicer, on behalf of the
Trust Fund, shall not be required to enforce such due-on-encumbrance clause and
in connection therewith will not be required to (x) accelerate the payments on
the related Mortgage Loan or (y) withhold its consent to such lien or
encumbrance, if the Special Servicer (A) determines, in accordance with the
Servicing Standard, that such enforcement would not be in the best interests of
the Trust Fund or, with respect to a consent, that granting such consent would
be consistent with the Servicing Standard and (B) receives prior written
confirmation from each of S&P and Xxxxx'x that granting such consent would not,
in and of itself, cause a downgrade, qualification or withdrawal of any of the
then-current ratings assigned to the Certificates.
(c) Nothing in this Section 3.09 shall constitute a waiver of
the Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Mortgage Loan, any sale or other transfer of the related
Mortgaged Property or the creation of any lien or other encumbrance with respect
to such Mortgaged Property.
(d) In connection with the taking of, or the failure to take,
any action pursuant to this Section 3.09, the Special Servicer shall not agree
to modify, waive or amend, and no assumption or substitution agreement entered
into pursuant to Section 3.09(a) shall contain any terms that are different
from, any term of any Mortgage Loan or the related Note, other than pursuant to
Section 3.29.
(e) With respect to any Mortgage Loan which permits release of
Mortgaged Properties through defeasance:
(i) In the event such Mortgage Loan requires that the
Servicer, on behalf of the Trustee purchase the
required U.S. government obligations, the Servicer
shall purchase (upon receipt of sufficient funds
from the Borrower exercising such right of
defeasance) such obligations, at the Borrower's
expense, in accordance with the terms of such
Mortgage Loan; provided , that the Servicer shall
not accept the amounts paid by the related Borrower
to effect defeasance until acceptable U.S.
government obligations have been identified.
(ii) Except as provided in Section 3.09(a)(i) or (ii),
in the event that such Mortgage Loan permits the
assumption of the obligations of the related
Borrower by a successor mortgagor, prior to
permitting such assumption and to the extent not
inconsistent with such Mortgage Loan, the Servicer
shall obtain written confirmation from each Rating
Agency that such assumption would not, in and of
itself, cause a downgrade, qualification or
withdrawal of the then-current ratings assigned to
the Certificates (provided, that the requirement to
obtain such confirmation will be a precondition to
the assumption only if the Servicer is able,
pursuant to the terms of the related Mortgage File
documents and applicable law, to prevent the
defeasance if such confirmation is not obtained).
(iii) To the extent permitted by such Mortgage Loan, the
Servicer shall require an Opinion of Counsel to the
related Borrower (which shall be an expense of the
related Borrower) to the effect that the Trustee
has a first priority security interest in the
defeasance deposit and the U.S. government
obligations and the assignment thereof is valid and
enforceable; such opinion, together with any other
certificates or documents to be required in
connection with such defeasance shall be in form
and substance acceptable to each Rating Agency.
(iv) To the extent permitted by the Mortgage Loan, the
Servicer shall require a certificate at the related
Borrower's expense from an Independent certified
public accountant certifying that the U.S. government
obligations comply with the requirements of the
related Loan Agreement or Mortgage.
(v) Prior to permitting release of any Mortgaged
Properties through defeasance, to the extent not
inconsistent with the related Mortgage Loan, the
Servicer shall obtain written confirmation from
each Rating Agency that such defeasance would not,
in and of itself, result in a downgrade,
qualification or withdrawal of the then-current
ratings assigned to the Certificates.
(vi) Prior to permitting release of any Mortgaged
Property through defeasance, if the related
Mortgage Loan so requires and provides for the
related Borrower to pay the cost thereof, the
Servicer shall require an Opinion of Counsel of the
related Borrower to the effect that such release
will not cause the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Loan REMICs to fail to qualify
as a REMIC at any time that any Certificates are
outstanding or cause a tax to be imposed on the
Trust Fund under the REMIC Provisions.
(vii) In the event that the Borrower fails to pay for any
expense for which it is obligated as described in
this Section 3.09(e), then the Servicer shall not
purchase any U.S. obligations or consent to the
proposed defeasance; provided that if the Servicer
determines that (A) the Borrower is not obligated
under the Mortgage Loan documents to pay such
expense or (B) failure to permit such defeasance
will result in the Borrower defaulting under the
related Mortgage Loan and that such default would
result in a lesser net recovery with respect to the
related Mortgage Loan than would occur if the
Servicer were to permit such defeasance, in which
case any expenses incurred by the Servicer shall be
reimbursable as a Property Advance.
(f) Prior to the defeasance of any Mortgaged Property, the
Depositor shall establish a special purpose entity (the "New SPE") (or if the
Depositor does not establish such New SPE, the Servicer shall do so with the
cost thereof being an Advance hereunder), which shall assume any defeased
Mortgage Loans and whose organizational documents shall provide that its purpose
is limited to same. The Depositor shall also provide an Opinion of Counsel with
respect to nonconsolidation of the New SPE. The Servicer shall exercise its
right under the Loan Documents to require the Borrower to transfer to the New
SPE any defeased Mortgage Loans, which assignment shall be accepted by the New
SPE.
(g) In connection with any defeasance, to the extent not
inconsistent with the Loan Documents, on behalf of the Borrower, the Servicer
shall use the cash payment to (1) purchase noncallable obligations of the U.S.
Treasury that are sufficient to timely meet all scheduled mortgage payments
without reinvestment and (2) pay all related expenses. The Servicer shall
provide to the Rating Agencies trade confirmations or other appropriate evidence
that establishes that the projection of cash flows in the certificate referred
to in subsection (e)(iv) above are based upon the correct maturity dates and
interest rates of the securities actually purchased.
(h) The Servicer may release the related Mortgaged Property
for any Note that is fully defeased, provided it has confirmed that the
requirements set forth above have been satisfied.
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage
Loans.
(a) Contemporaneously with the earliest of (i) the effective
date of any (A) modification of a Mortgage Rate, principal balance or
amortization terms of any Mortgage Loan, (B) extension of the Maturity Date of a
Mortgage Loan as described below in Section 3.29(c), or (C) consent to the
release of any Mortgaged Property from the lien of the related Mortgage other
than pursuant to the terms of the related Mortgage Loan, (ii) the occurrence of
any Appraisal Reduction Event, (iii) 60 days after a default in the payment of a
Balloon Payment, or (iv) the date on which the Special Servicer, consistent with
the Servicing Standard, requests that an Updated Appraisal be obtained, the
Special Servicer shall obtain an Updated Appraisal (or a letter which updates an
existing appraisal which is less than two years old), the cost of which will
constitute a Property Advance.
(b) Upon the occurrence of a material default under a
Specially Serviced Mortgage Loan, except as otherwise specifically provided in
Section 3.09(a) and (b), the Special Servicer may, consistent with the Servicing
Standard, accelerate such Specially Serviced Mortgage Loan and commence a
foreclosure or other acquisition with respect to the related Mortgaged Property
or Properties, provided, that the Special Servicer determines that such
acceleration and foreclosure are more likely to produce a greater recovery to
Certificateholders on a present value basis (discounting at the related Mortgage
Rate) than would a waiver of such default or an extension or modification in
accordance with the provisions of Section 3.29 hereof. In connection with any
foreclosure or other acquisition, subject to the second paragraph of Section
3.04(a), the Servicer shall pay the costs and expenses in any such proceedings
as an Advance unless the Servicer determines, in its good faith judgment, that
such Advance would constitute a Nonrecoverable Advance. The Servicer shall be
entitled to reimbursement of Advances (with interest at the Advance Rate) made
pursuant to the preceding sentence to the extent permitted by Section 3.06(ii),
(iii) and (vii).
(c) If the Special Servicer elects to proceed with a
non-judicial foreclosure in accordance with the laws of the state or locality
where the Mortgaged Property is located, the Special Servicer shall not be
required to pursue a deficiency judgment against the related Borrower or any
other liable party if the laws of the state or locality do not permit such a
deficiency judgment after a non-judicial foreclosure or if the Special Servicer
determines, in its best judgment, that the likely recovery if a deficiency
judgment is obtained will not be sufficient to warrant the cost, time, expense
and/or exposure of pursuing the deficiency judgment and such determination is
evidenced by an Officers' Certificate delivered to the Trustee.
(d) In the event that title to any Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee (which
shall not include the Special Servicer) or a separate trustee or co-trustee on
behalf of the Holder of the related Loan REMIC Residual Interest and on behalf
of the Trustee as holder of the related Loan REMIC Regular Interest and the
Lower-Tier Regular Interests and Certificateholders. Notwithstanding any such
acquisition of title and cancellation of the related Mortgage Loan, such
Mortgage Loan shall (except for purposes of Section 9.01) be considered to be an
REO Mortgage Loan held in the Trust Fund until such time as the related REO
Property shall be sold by the Trust Fund and shall be reduced only by
collections net of expenses. Consistent with the foregoing, for purposes of all
calculations hereunder, so long as such Mortgage Loan shall be considered to be
an outstanding Mortgage Loan:
(i) it shall be assumed that, notwithstanding that the
indebtedness evidenced by the related Note shall have
been discharged, such Note and, for purposes of
determining the Stated Principal Balance thereof, the
related amortization schedule in effect at the time
of any such acquisition of title shall remain in
effect; and
(ii) Subject to Section 1.02(b), Net REO Proceeds
received in any month shall be applied to amounts
that would have been payable under the related Note
in accordance with the terms of such Note. In the
absence of such terms, Net REO Proceeds shall be
deemed to have been received first in payment of
the accrued interest (not including Excess
Interest) that remained unpaid on the date that the
related REO Property was acquired by the Trust
Fund; second in respect of the delinquent principal
installments that remained unpaid on such date; and
thereafter, Net REO Proceeds received in any month
shall be applied to the payment of installments of
principal and accrued interest on such Mortgage
Loan deemed to be due and payable in accordance
with the terms of such Note and such amortization
schedule until such principal has been paid in full
and then to Excess Interest and other amounts due
under such Mortgage Loan. If such Net REO Proceeds
exceed the Monthly Payment then payable, the excess
shall be treated as a Principal Prepayment received
in respect of such Mortgage Loan.
(e) Notwithstanding any provision herein to the contrary, the
Special Servicer shall not acquire for the benefit of the Trust Fund any
personal property pursuant to this Section 3.10 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 for the benefit
of the Trust Fund; or
(ii) the Special Servicer shall have requested and
received an Opinion of Counsel (which opinion shall
be an expense of the Lower-Tier REMIC or the
related Loan REMIC, as applicable) to the effect
that the holding of such personal property by the
respective REMIC will not cause the imposition of a
tax on the related Loan REMIC, the Lower-Tier REMIC
or the Upper-Tier REMIC under the REMIC Provisions
or cause the related Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC to fail to qualify as
a REMIC at any time that any Certificate is
outstanding.
(f) Notwithstanding any provision to the contrary in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to any direct or indirect partnership interest or other equity interest in
any Borrower pledged pursuant to any pledge agreement unless the Special
Servicer shall have requested and received an Opinion of Counsel (which opinion
shall be an expense of the Trust Fund) to the effect that the holding of such
partnership interest or other equity interest by the Trust Fund will not cause
the imposition of a tax on any Loan REMIC, the Lower-Tier REMIC or Upper-Tier
REMIC under the REMIC Provisions or cause any Loan REMIC, the Lower-Tier REMIC
or the Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(g) Notwithstanding any provision to the contrary contained in
this Agreement, the Special Servicer shall not, on behalf of the Trust Fund,
obtain title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership interest in any
Borrower pledged pursuant to a pledge agreement and thereby be the beneficial
owner of a Mortgaged Property, and shall not otherwise acquire possession of, or
take any other action with respect to, any Mortgaged Property if, as a result of
any such action, the Trustee, for the Trust Fund or the Certificateholders,
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of, such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Special
Servicer has previously determined in accordance with the Servicing Standard,
based on an environmental assessment report prepared by an Independent Person
who regularly conducts environmental audits, that:
(i) such Mortgaged Property is in compliance with
applicable environmental laws or, if not, after
consultation with an environmental consultant, that
it would be in the best economic interest of the
Trust Fund to take such actions as are necessary to
bring such Mortgaged Property in compliance
therewith, and
(ii) there are no circumstances present at such
Mortgaged Property relating to the use, management
or disposal of any Hazardous Materials for which
investigation, testing, monitoring, containment,
clean-up or remediation could be required under any
currently effective federal, state or local law or
regulation, or that, if any such Hazardous
Materials are present for which such action could
be required, after consultation with an
environmental consultant, it would be in the best
economic interest of the Trust Fund to take such
actions with respect to the affected Mortgaged
Property.
In the event that the environmental assessment first obtained
by the Special Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental laws
or that Hazardous Materials may be present but does not definitively establish
such fact, the Special Servicer shall cause such further environmental tests to
be conducted by an Independent Person who regularly conducts such tests as the
Special Servicer shall deem prudent to protect the interests of
Certificateholders. Any such tests shall be deemed part of the environmental
assessment obtained by the Special Servicer for purposes of this Section 3.10.
(h) The environmental assessment contemplated by Section
3.10(g) shall be prepared within three months of the determination that such
assessment is required by any Independent Person who regularly conducts
environmental audits for purchasers of commercial property where the Mortgaged
Property is located, as determined by the Special Servicer in a manner
consistent with the Servicing Standard. Subject to the second paragraph of
Section 3.04(a), the Servicer shall advance the cost of preparation of such
environmental assessments unless the Servicer determines, in its good faith
judgment, that such Advance would be a Nonrecoverable Advance. The Special
Servicer shall provide such information as reasonably requested by the Servicer
to determine whether such Advance, if made, would be a Nonrecoverable Advance.
The Servicer shall be entitled to reimbursement of Advances (with interest at
the Advance Rate) made pursuant to the preceding sentence in the manner set
forth in Section 3.06.
(i) If the Special Servicer determines pursuant to Section
3.10(g)(i) that a Mortgaged Property is not in compliance with applicable
environmental laws but that it is in the best economic interest of the Trust
Fund to take such actions as are necessary to bring such Mortgaged Property in
compliance therewith, or if the Special Servicer determines pursuant to Section
3.10(g)(ii) that the circumstances referred to therein relating to Hazardous
Materials are present but that it is in the best economic interest of the Trust
Fund to take such action with respect to the containment, clean-up or
remediation of Hazardous Materials affecting such Mortgaged Property as is
required by law or regulation, the Special Servicer shall take such action as it
deems to be in the best economic interest of the Trust Fund, but only if the
Trustee has mailed notice to the Holders of the Regular Certificates of such
proposed action, which notice shall be prepared by the Special Servicer, and
only if the Trustee does not receive, within 30 days of such notification,
instructions from the Holders of greater than 50% of the aggregate Voting Rights
of such Classes directing the Special Servicer not to take such action.
Notwithstanding the foregoing, if the Special Servicer reasonably determines
that it is likely that within such 30-day period irreparable environmental harm
to such Mortgaged Property would result from the presence of such Hazardous
Materials and provides a prior written statement to the Trustee setting forth
the basis for such determination, then the Special Servicer may take such action
to remedy such condition as may be consistent with the Servicing Standard. None
of the Trustee, the Servicer or the Special Servicer shall be obligated to take
any action or not take any action pursuant to this Section 3.10(i) at the
direction of the Certificateholders unless the Certificateholders agree to
indemnify the Trustee, the Servicer and the Special Servicer with respect to
such action or inaction. Subject to the second paragraph of Section 3.04(a), the
Servicer shall advance the cost of any such compliance, containment, clean-up or
remediation unless the Servicer determines, in its good faith judgment, that
such Advance would constitute a Nonrecoverable Advance.
(j) The Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed or
regarding any cancellation of indebtedness with respect to any Mortgage Loan.
The Special Servicer shall provide the Servicer with such information or reports
as the Servicer deems necessary to fulfill its obligations under this Section
3.10(j) promptly upon the Servicer's request therefor. The Servicer shall
deliver a copy of any such report to the Special Servicer and the Trustee.
(k) The costs of any Updated Appraisal obtained pursuant to
this Section 3.10 shall be paid by the Servicer as an Advance and shall be
reimbursable from the Collection Account (or from the Collateral Account to the
extent Advances are otherwise reimbursable therefrom pursuant to this Section
3.10).
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt
by the Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes, the Servicer shall promptly notify the
Trustee or the Custodian by a certification (which certification 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
Collection Account pursuant to Section 3.05 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Mortgage File. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Trust Fund.
From time to time upon request of the Servicer or Special
Servicer and delivery to the Trustee and the Custodian of a Request for Release,
the Trustee shall promptly cause the Custodian to release the Mortgage File (or
any portion thereof) designated in such Request for Release to the Servicer or
Special Servicer, as applicable. Upon return of the foregoing to the Custodian,
or in the event of a liquidation or conversion of the Mortgage Loan into an REO
Property, receipt by the Trustee of a certificate of a Servicing Officer stating
that such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation which are required to be deposited
into the Collection Account or Distribution Account have been so deposited, or
that such Mortgage Loan has become an REO Property, the Custodian shall deliver
a copy of the Request for Release to the Servicer or Special Servicer, as
applicable.
Upon written certification of a Servicing Officer, the Trustee
shall execute and deliver to the Special Servicer any court pleadings, requests
for trustee's sale or other documents prepared by the Special Servicer, its
agents or attorneys, necessary to the foreclosure or trustee's sale in respect
of a Mortgaged Property or to any legal action brought to obtain judgment
against any Borrower on the Note or Mortgage or to obtain a deficiency judgment,
or to enforce any other remedies or rights provided by the Note or Mortgage or
otherwise available at law or in equity. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement 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 3.12. Servicing Fees, Trustee Fees and Special
Servicing Compensation
(a) As compensation for its activities hereunder, the Servicer
shall be entitled to the Servicing Fee with respect to each Mortgage Loan, which
fee shall be payable from amounts on deposit in the Collection Account as set
forth in Section 3.06(iv). Late payment charges and Net Default Interest
actually collected on Specially Serviced Mortgage Loans accruing while such
Mortgage Loans are Specially Serviced Mortgage Loans shall be promptly paid to
the Special Servicer by the Servicer and shall not be required to be deposited
in the Collection Account. The Servicer's rights to the Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all or
part of the Servicer's responsibilities and obligations under this Agreement. In
addition, the Servicer shall be entitled to receive, as additional Servicing
Compensation, (i) any interest or other income earned on amounts on deposit in
the Collection Account maintained by the Servicer and investment income earned
on amounts on deposit in Borrower Accounts (to the extent consistent with the
related Mortgage Loan) with respect to the Mortgage Loans serviced by it (to the
extent such interest or other income is not required to be paid to the related
Borrower pursuant to the terms of the related Mortgage Loan or applicable law)
and (ii) to the extent permitted by applicable law and the related Mortgage
Loans (and not otherwise payable to the Special Servicer pursuant to Section
3.12(b)), any late payment charges, 50% of the Assumption Fees for non-Specially
Serviced Mortgage Loans, assumption processing fees on non-Specially Serviced
Mortgage Loans, loan modification fees for modifications done by the Servicer in
accordance with Section 3.29(c), extension fees, loan service transaction fees,
Net Default Interest, Prepayment Interest Excess with respect to all Mortgage
Loans in excess of any Prepayment Interest Shortfalls with respect to the
Mortgage Loans (other than Mortgage Loans that permit prepayments on a date
other than a Due Date and other than Specially Serviced Mortgage Loans),
beneficiary statement charges or similar items (but not including any Prepayment
Premiums), in each case to the extent received and not required to be deposited
or retained in the Collection Account pursuant to Section 3.05; provided,
however, that the Servicer shall not be entitled to apply or retain any amounts
as additional compensation, any late payment charges with respect to any
Mortgage Loan with respect to which a default or event of default thereunder has
occurred and is continuing unless and until such default or event of default has
been cured and all delinquent amounts (including any Default Interest) due with
respect to such Mortgage Loan have been paid. Notwithstanding the foregoing, the
aggregate Servicing Fee on all Mortgage Loans and investment income earned on
any Principal Prepayments during the related Collection Period and due to the
Servicer on any Distribution Date shall be reduced as provided in the definition
of Servicer Prepayment Interest Shortfalls applicable to the Servicer.
As compensation for its activities hereunder on each
Distribution Date, the Trustee shall be entitled with respect to each Mortgage
Loan to the Trustee Fee with respect to each Mortgage Loan and which shall be
payable from amounts on deposit in the Distribution Account as set forth in
Section 3.06(v). The Trustee shall pay the routine fees and expenses of the
Certificate Registrar, the Paying Agent, the Custodian and the Authenticating
Agent. The Trustee's rights to the Trustee Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Trustee's
responsibilities and obligations under this Agreement.
Except as otherwise provided herein, the Servicer shall pay
all expenses incurred by it in connection with its servicing activities
hereunder, including all fees of any sub-servicers retained by it (but excluding
any Other Servicers or Other Special Servicers). Except as otherwise provided
herein, the Trustee shall pay all expenses incurred by it in connection with its
activities hereunder.
(b) (i) The Special Servicer shall receive a Work
Out Fee with respect to each Corrected Mortgage
Loan (other than any Corrected Mortgage Loan
related to a Co-Lender Split Note). As to each
Corrected Mortgage Loan, the "Work Out Fee" will be
------------
payable out of, and will be calculated by
application of a "Work Out Fee Rate" of 1.0% to,
-------------------
each collection of interest (other than Default
Interest and Excess Interest), principal (including
scheduled payments, prepayments and Balloon
Payments at maturity) and Prepayment Premiums
received on such Mortgage Loan for so long as it
remains a Corrected Mortgage Loan. The Work Out
Fee with respect to any Corrected Mortgage Loan
will cease to be payable if such loan again becomes
a Specially Serviced Mortgage Loan or if the
related Mortgage Property becomes an REO Property.
A new Work Out Fee will become payable if and when
such Mortgage Loan again becomes a Corrected
Mortgage Loan. If the Special Servicer is
terminated (other than for cause) or resigns, it
shall retain the right to receive any and all Work
Out Fees payable with respect to Mortgage Loans
that became Corrected Mortgage Loans during the
period that it acted as Special Servicer and
remained Corrected Mortgage Loans at the time of
such termination or resignation. The successor
Special Servicer will not be entitled to any
portion of such Work Out Fees.
(ii) The Special Servicer shall receive a "Liquidation
Fee" with respect to each Specially Serviced
Mortgage Loan (other than a Mortgage Loan which is
related to a Co-Lender Split Note) as to which the
Special Servicer obtains a full or discounted
payoff from the related borrower and, except as
otherwise described below, with respect to any
Specially Serviced Mortgage Loan or REO property as
to which the Special Servicer receives any
liquidation proceeds. As to each such Specially
Serviced Mortgage Loan and REO Property, the
Liquidation Fee will be payable from, and will be
calculated by application of a "Liquidation Fee
Rate" of 1.0% to, the related payment or proceeds
(other than any portion thereof that represents a
recovery of Default Interest or Excess Interest).
Notwithstanding anything to the contrary described
above, no Liquidation Fee will be payable based on,
or out of liquidation proceeds received in
connection with:
(A) the repurchase of any Mortgage Loan by a
Mortgage Loan Seller or NHA for a breach of
representation or warranty;
(B) the purchase of any Specially Serviced
Mortgage Loan or REO Property by the Special
Servicer; or
(C) the purchase of all of the Mortgage Loans
and REO Properties by the Depositor, the
Special Servicer, the Servicer or the
holders of the Class LR Certificates
representing greater than a 50% Percentage
Interest of the Class LR Certificates in
connection with an optional termination of
the Trust Fund.
(iii) As compensation for its activities hereunder, the
Special Servicer shall be entitled with respect to
each Specially Serviced Mortgage Loan, REO Mortgage
Loan or Corrected Mortgage Loan (other than a
Co-Lender Split Note) to the Special Servicing
Compensation, which shall be payable from amounts
on deposit in the Collection Account as set forth
in Section 3.06(iv). The Special Servicer's rights
to the Special Servicing Compensation may not be
transferred in whole or in part except in
connection with the transfer of all of the Special
Servicer's responsibilities and obligations under
this Agreement. In addition, the Special Servicer
shall be entitled to receive, as Special Servicing
Compensation, (i) to the extent permitted by
applicable law and the related Loan Documents, any
Assumption Fees, any assumption processing fees for
Specially Serviced Mortgage Loan and extension or
other fees relating to any Specially Serviced
Mortgage Loan or with respect to servicing
activities performed by the Special Servicer on any
Specially Serviced Mortgage Loan, and, with respect
to any Non-Specially Serviced Mortgage Loan, fees
for any modification (other than modification fees
due to the Servicer pursuant to Section 3.12(a)),
extension or other action by the Special Servicer
and 50% of any Assumption Fees and extension or
other fees payable by the related Borrower in
connection therewith; and (ii) any interest or
other income earned on deposits in the REO Accounts.
Except as otherwise provided herein, the Special Servicer
shall pay all expenses incurred by it in connection with its servicing
activities hereunder.
(c) The Servicer, Special Servicer and Trustee shall be
entitled to reimbursement from the Trust Fund for the costs and expenses
incurred by them in the performance of their duties under this Agreement which
are "unanticipated expenses incurred by the REMIC" within the meaning of
Treasury Regulations Section 1.860G-1(b)(3)(iii); provided that any such costs
and expenses that constitute Property Advances will be reimbursable in
accordance with the provisions of this Agreement that relate to Property
Advances. Such expenses shall include, by way of example and not by way of
limitation, environmental assessments, Updated Appraisals and appraisals in
connection with foreclosure or determination of recoverability of an Advance,
the fees and expenses of any administrative or judicial proceeding and expenses
expressly identified as reimbursable in Section 3.06(vii).
(d) No provision of this Agreement or of the Certificates
shall require the Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to expend or risk their own funds or otherwise incur any financial
liability in the performance of any of their duties hereunder or thereunder, or
in the exercise of any of their rights or powers, if, in the good faith business
judgment of the Servicer, Special Servicer, Trustee or Fiscal Agent, as the case
may be, repayment of such funds would not be ultimately recoverable from late
payments, Net Insurance Proceeds, Net Liquidation Proceeds and other collections
on or in respect of the Mortgage Loans, or from adequate indemnity from other
assets comprising the Trust Fund against such risk or liability.
If the Servicer, the Special Servicer or the Trustee receives
a request or inquiry from a Borrower, any Certificateholder or any other Person
the response to which would, in the Servicer's or the Trustee's good faith
business judgment require the assistance of Independent legal counsel or other
consultant to the Servicer, the Special Servicer or the Trustee, the cost of
which would not be an expense of the Trust Fund hereunder, then the Servicer,
the Special Servicer or the Trustee, as the case may be, shall not be required
to take any action in response to such request or inquiry unless the Borrower or
such Certificateholder or such other Person, as applicable, makes arrangements
for the payment of the Servicer's, the Special Servicer's or the Trustee's
expenses associated with such counsel (including, without limitation, posting an
advance payment for such expenses) satisfactory to the Servicer, the Special
Servicer or the Trustee, as the case may be, in its sole discretion. Unless such
arrangements have been made, the Servicer, the Special Servicer or the Trustee,
as the case may be, shall have no liability to any Person for the failure to
respond to such request or inquiry.
SECTION 3.13. Reports to the Trustee; Collection Account
Statements.
(a) The Servicer shall deliver to the Trustee and the Special
Servicer, no later than 1:00 p.m. Central time on the Business Day prior to the
Servicer Remittance Date prior to each Distribution Date (in electronic format
acceptable to the Servicer, the Special Servicer and the Trustee), the Servicer
Remittance Report with respect to the related Distribution Date (which shall
include, without limitation, the amount of Available Funds for the related
Distribution Date) including a written statement of anticipated P&I Advances for
the related Distribution Date. The Servicer's responsibilities under this
Section 3.13(a) with respect to REO Mortgage Loans shall be subject to the
satisfaction of the Special Servicer's obligations under Section 3.26.
(b) For so long as the Servicer makes deposits into and
withdrawals from the Collection Account, not later than fifteen days after each
Distribution Date, the Servicer shall forward to the Trustee and the Fiscal
Agent a statement prepared by the Servicer setting forth the status of the
Collection Account as of the close of business on the last Business Day of the
related Collection Period and showing the aggregate amount of deposits into and
withdrawals from the Collection Account of each category of deposit specified in
Section 3.05 and each category of withdrawal specified in Section 3.06 for the
related Collection Period. The Trustee and its agents and attorneys may at any
time during normal business hours, upon reasonable notice, inspect and copy the
books, records and accounts of the Servicer solely relating to the Mortgage
Loans and the performance of its duties hereunder. The Trustee will reimburse
the Servicer for reasonable costs and expenses (including copying costs)
incurred by the Servicer in connection with such inspection by the Trustee or
its agents or attorneys.
(c) No later than 3:00 p.m. Central time on the Servicer
Remittance Date, the Servicer shall deliver or cause to be delivered to the
Trustee, Special Servicer and Xxxxx'x (in electronic format acceptable to the
Servicer, Special Servicer and the Trustee) the following reports with respect
to the Mortgage Loans (and, if applicable, the related REO Properties),
providing the required information as of the Due Date: (i) a Comparative
Financial Status Report, (ii) a Delinquent Loan Status Report; (iii) an
Historical Loss Estimate Report; and (iv) an Historical Loan Modification
Report; (v) an REO Status Report; (vi) CSSA Reports; (vii) a Loan Payoff
Notification Report and (viii) a Premium Loan Report. Such reports shall be
presented on a computer readable medium reasonably acceptable to the Trustee and
the Servicer. The information that pertains to Specially Serviced Mortgage Loans
and REO Properties and historic loss estimates and historic loan modifications
reflected in such reports shall be based solely upon the reports delivered by
the Special Servicer to the Servicer by 2:00 p.m. Central Time at least one
Business Day prior to the related Servicer Remittance Date in the form required
by Section 3.13(f) or shall be provided by means of such reports so delivered by
the Special Servicer to the Servicer in the form so required. Absent manifest
error, the Servicer shall be entitled to conclusively rely upon, without
investigation or inquiry, the information and reports delivered to it by the
Special Servicer and the Other Servicer (with respect to information relating to
any Co-Lender Split Note) and the Trustee shall be entitled to conclusively rely
upon the Servicer's reports and the Special Servicer's reports and the Other
Servicer's reports without any duty or obligation to recompute, verify or
recalculate any of the amounts and other information stated therein (and such
reports may include any reasonable disclaimers with respect to information
provided by third parties or with respect to assumptions required to be made in
the preparation of such reports as the Servicer or the Special Servicer deems
appropriate). In the case of information or reports to be furnished by the
Servicer to the Trustee pursuant to this Section 3.13, to the extent that such
information is based on reports to be provided by the Special Servicer pursuant
to Section 3.26(c) and this Section 3.13 or by any Other Servicer and to the
extent that such reports are to be prepared and delivered by the Special
Servicer pursuant to Section 3.26(c) and this Section 3.13, for so long as the
Servicer is not the Special Servicer, the 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 Servicer shall not be in default
hereunder due to a delay in providing the reports required by this Section 3.13
to the extent caused by the Special Servicer's failure to timely provide any
report required under Section 3.26(c)and this Section 3.13 or by any Other
Servicer's failure to deliver any information or report; provided, that .the
Servicer will make reasonable efforts, consistent with the Servicing Standard,
to obtain such reports or information from the Other Servicer.
(d) The Servicer shall deliver or cause to be delivered to the
Trustee and, except for the rent rolls and operating statements provided for
below, the Special Servicer (in electronic format mutually acceptable to the
Servicer, the Special Servicer and the Trustee), and promptly after its receipt
thereof, the Trustee shall deliver to the Depositor, each Underwriter and each
Rating Agency and, upon request, shall make available to the Certificateholders,
the following materials, in each case to the extent that such materials or the
information on which they are based have been received by the Servicer:
(i) At least annually by June 30th, commencing on June
30, 1999, with respect to each Mortgage Loan (other
than a Co-Lender Split Note) and REO Property (to
the extent prepared by and received from the
Special Servicer in the case of any Specially
Serviced Mortgage Loan (other than a Co-Lender
Split Note) or REO Property), an Operating
Statement Analysis for the related Mortgaged
Property or REO Property as of the end of the
preceding calendar year, and to the Trustee, 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 and, with respect to
operating statements and rent rolls for Specially
Serviced Mortgage Loans and REO Properties, only to
the extent requested or obtained by the Special
Servicer) for the related Mortgaged Property or REO
Property as of the end of the preceding fiscal
year. The Servicer shall use its best reasonable
efforts to obtain said annual operating statements
and rent rolls with respect to each of the Mortgage
Loans other than Specially Serviced Mortgage Loans
or REO Properties.
(ii) Within thirty days after receipt by the Servicer
(or the Special Servicer in the case of a Specially
Serviced Mortgage Loan (other than a Co-Lender
Split Note) or REO Property), of any annual
operating statements with respect to any Mortgaged
Property (other than a Mortgage Property relating
to a Co-Lender Split Note) or REO Property (to the
extent prepared by and received from the Special
Servicer in the case of any Specially Serviced
Mortgage Loan or REO Property), an NOI Adjustment
Worksheet for such Mortgaged Property (and, to the
Trustee, the annual operating statements attached
thereto as an exhibit) (and such reports may
include any reasonable disclaimers with respect to
information provided by third parties or with
respect to assumptions required to be made in the
preparation of such reports as the Servicer or the
Special Servicer deems appropriate).
The Servicer shall maintain one Operating Statement Analysis report for each
Mortgaged Property and REO Property (to the extent prepared by and received from
the Special Servicer in the case of any REO Property or any Mortgaged Property
constituting security for a Specially Serviced Mortgage Loan and to the extent
prepared by and received from the related Other Servicer or related Other
Special Servicer in the case of any REO Property or any Mortgaged Property that
constituted or constitutes security for a Co-Lender Split Note; provided that
the Servicer will make reasonable efforts, consistent with the Servicing
Standard, to obtain such reports from the Other Servicer or Other Special
Servicer). The Operating Statement Analysis report for each Mortgaged Property
(other than any such Mortgaged Property which is REO Property or constituted or
constitutes security for a Specially Serviced Mortgage Loan and other than any
such Mortgaged Property that constituted or constitutes security for a Co-Lender
Split Note) is to be updated by the Servicer and such updated report delivered
to the Trustee and the Special Servicer (in electronic format) within thirty
days after receipt by the Servicer of updated operating statements for such
Mortgaged Property. The Servicer 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
(other than any such Mortgaged Property which is REO Property or constitutes
security for a Specially Serviced Mortgage Loan) to update the Operating
Statement Analysis report for such Mortgaged Property, such updates to be
completed and copies thereof sent to the Trustee and the Special Servicer within
thirty days after receipt of the necessary information (and such reports may
include any reasonable disclaimers with respect to information provided by third
parties or with respect to assumptions required to be made in the preparation of
such reports as the Servicer or the Special Servicer deems appropriate).
The Special Servicer will be required pursuant to Section
3.13(g) to deliver to the Servicer the information required pursuant to this
Section 3.13(d) with respect to Specially Serviced Mortgage Loans and REO
Mortgage Loans on or before June 10th of each year, commencing on June 10, 1999,
and within 15 days after its receipt of any operating statement for any related
Mortgaged Property or REO Property.
(e) No later than 3:00 p.m. Central time on the Servicer
Remittance Date, beginning in May 1999, the Servicer shall prepare and deliver
to the Trustee and the Special Servicer, a Watch List of all Mortgage Loans that
the Servicer has determined are in jeopardy of becoming Specially Serviced
Mortgage Loans. For this purpose, Mortgage Loans that are in jeopardy of
becoming Specially Serviced Mortgage Loans shall be: (i) Mortgage Loans having a
current Debt Service Coverage Ratio that is 80% or less of the trailing
twelve-month Debt Service Coverage Ratio as of the Cut-off Date (as stated on
Annex A to the Prospectus) or having a current trailing twelve-month Debt
Service Coverage Ratio that is less than 1.05x (other than Credit Lease Loans),
(ii) Mortgage Loans as to which any required inspection of the related Mortgaged
Property conducted by the Servicer indicates a problem that the Servicer
determines can reasonably be expected to materially adversely affect the cash
flow generated by such Mortgaged Property, (iii) Mortgage Loans which have come
to the Servicer's attention in the performance of its duties under this
Agreement (without any expansion of such duties by reason hereof) that (A) any
tenant occupying 25% or more of the space in the related Mortgaged Property has
vacated (without being replaced by a comparable tenant and lease) or been the
subject of bankruptcy or similar proceedings or (B) relate to a borrower or an
affiliate that is the subject of a bankruptcy or similar proceeding, (iv)
Mortgage Loans that are at least one Collection Period delinquent in payment,
and (v) Mortgage Loans that are within 6 months of maturity (and such reports
may include any reasonable disclaimers with respect to information provided by
third parties or with respect to assumptions required to be made in the
preparation of such reports as the Servicer or the Special Servicer deems
appropriate).
The Special Servicer shall report to the Servicer any of the
foregoing events promptly upon the Special Servicer having knowledge of such
event. In addition, in connection with their servicing of the Mortgage Loans,
the Servicer and the Special Servicer shall provide to each other and to the
Trustee written notice of any event that comes to their knowledge with respect
to a Mortgage Loan or REO Property that the Servicer or the Special Servicer,
respectively, determines, in accordance with Servicing Standards, would have a
material adverse effect on such Mortgage Loan or REO Property, which notice
shall include an explanation as to the reason for such material adverse effect.
(f) By 2:00 p.m. Central Time, at least one Business Day prior
to each Servicer Remittance Date, the Special Servicer shall deliver, or cause
to be delivered, to the Servicer, Xxxxx'x and, upon the request of any of the
Trustee, the Depositor or the Underwriters, to such requesting party, the
following reports with respect to the Specially Serviced Mortgage Loans (and, if
applicable, any REO Properties) (and, as to clauses (ii) and (iii), with respect
to all Mortgage Loans), providing the required information as of the Due Date:
(i) a Delinquent Loan Status Report; (ii) an Historical Loss Estimate Report;
(iii) an Historical Loan Modification Report; (iv) an REO Status Report; (v)
Comparative Financial Status Reports with respect to all Specially Serviced
Mortgage Loans and REO Properties; (vi) a Loan Payoff Notification Report with
respect to all Specially Serviced Mortgage Loans; (vii) CSSA Reports and (viii)
a Premium Loan Report with respect to all Specially Serviced Mortgage Loans.
Such reports shall be presented in writing and on a computer readable magnetic
medium (and such reports may include any reasonable disclaimers with respect to
information provided by third parties or with respect to assumptions required to
be made in the preparation of such reports as the Servicer or the Special
Servicer deems appropriate).
(g) The Special Servicer shall deliver or cause to be
delivered to the Servicer, and the Rating Agencies and, upon the request of any
of the Trustee, the Depositor or the Underwriters, to such requesting party, the
following materials, in each case to the extent that such materials or the
information on which they are based have been received by the Special Servicer:
(i) Annually, on or before June 10 of each year,
commencing with June 10, 1999, with respect to each
Specially Serviced Mortgage Loan and REO Mortgage
Loan (other than a Co-Lender Split Note), an
Operating Statement Analysis for the related
Mortgaged Property or REO Property (other than a
Co-Lender Split Note) as of the end of the
preceding calendar year, together with copies of
the operating statements and rent rolls (which are
required to be delivered pursuant to the related
Mortgage File) for the related Mortgaged Property
or REO Property (other than a Co-Lender Split Note)
as of the end of the preceding calendar year. The
Special Servicer shall use its best reasonable
efforts to obtain said annual operating statements
and rent rolls with respect to each Mortgaged
Property constituting security for a Specially
Serviced Mortgage Loan and each REO Property (other
than a Co-Lender Split Note).
(ii) Within 20 days of receipt by the Special Servicer
of any annual operating statements with respect to
any Mortgaged Property relating to a Specially
Serviced Mortgage Loan (other than a Co-Lender
Split Note), or at least six months of operating
information with respect to any REO Property, an
NOI Adjustment Worksheet for such Mortgaged
Property or REO Property (with the annual operating
statements attached thereto as an exhibit).
The Special Servicer shall maintain one Operating Statement Analysis report for
each Mortgaged Property securing a Specially Serviced Mortgage Loan and REO
Property. The Operating Statement Analysis report for each Mortgaged Property
which constitutes security for a Specially Serviced Mortgage Loan or is a REO
Property is to be updated by the Special Servicer and such updated report
delivered to the Servicer within 20 days after receipt by the Special Servicer
of updated operating statements for each such Mortgaged Property. In addition,
the Special Servicer shall provide each such report to the Servicer in the
then-applicable CSSA format. The Special Servicer 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 which constitutes security for a Specially Serviced
Mortgage Loan or is a REO Property to update the Operating Statement Analysis
report for such Mortgaged Property, such updates to be completed and copies
thereof sent to the Servicer within 20 days after receipt of the necessary
information.
(h) The Trustee shall be entitled to rely conclusively on and
shall not be responsible for the content or accuracy of any information provided
to it by the Servicer or the Special Servicer pursuant to this Agreement.
SECTION 3.14. Annual Statement as to Compliance.
The Servicer and the Special Servicer (the "reporting person")
each shall deliver to the Trustee, the Depositor and to the Rating Agencies on
or before March 15 of each year, beginning with March 15, 2000, an Officer's
Certificate stating, as to each signatory thereof, (i) that a review of the
activities of the reporting person during the preceding calendar year (or such
shorter period from the Closing Date to the end of the related calendar year)
and of its performance under this Agreement has been made under such officer's
supervision, (ii) that, to the best of such officer's knowledge, based on such
review, the reporting person has fulfilled its obligations under this Agreement
in all material respects throughout such year (or such shorter period), or, if
there has been a material default in the fulfillment of any such obligation,
specifying each such default known to such officer, the nature and status
thereof and what action it proposes to take with respect thereto, (iii) that, to
the best of such officer's knowledge, each related sub-servicer has fulfilled
its obligations under its sub-servicing agreement in all material respects, or,
if there has been a material default in the fulfillment of such obligations,
specifying each such default known to such officer and the nature and status
thereof, and (iv) whether it has received any notice regarding qualification, or
challenging the status, of any of the Upper-Tier REMIC, Lower-Tier REMIC or the
Loan REMICs as a REMIC or the portion of the Trust Fund exclusive of the Trust
REMICs and the Loan REMICs as a grantor trust from the IRS or any other
governmental agency or body.
SECTION 3.15. Annual Independent Public Accountants'
Servicing Report.
On or before March 15 of each year, beginning with March 15,
2000, the Servicer and the Special Servicer (the "reporting person") each at the
reporting person's expense shall cause a firm of nationally recognized
Independent public accountants (who may also render other services to the
reporting person) which is a member of the American Institute of Certified
Public Accountants to furnish a statement (an "Accountant's Statement") to the
Trustee, the Depositor and to the Rating Agencies, to the effect that such firm
has examined certain documents and records relating to the servicing of the
similar mortgage loans under similar agreements for the prior calendar year and
that, on the basis of such examination conducted substantially in compliance
with generally accepted auditing standards and the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
FHLMC, such servicing has been conducted in compliance with similar agreements
except for such significant exceptions or errors in records that, in the opinion
of such firm, generally accepted auditing standards and the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FHLMC require it to report, in which case such exceptions and
errors shall be so reported. Each reporting person shall obtain from the related
accountants, or shall prepare, an electronic version of each Accountant's
Statement and provide such electronic version to the Trustee for filing in
accordance with the procedures set forth in Section 3.22 hereof. With respect to
any electronic version of an Accountant's Statement prepared by the reporting
person, the reporting person shall receive written confirmation from the related
accountants that such electronic version is a conformed copy of the original
Accountant's Statement.
SECTION 3.16. Access to Certain Documentation.
The Servicer and Special Servicer shall provide to any
Certificateholders that are federally insured financial institutions, the
Federal Reserve Board, the FDIC and the OTS and the supervisory agents and
examiners of such boards and such corporations, and any other governmental or
regulatory body to the jurisdiction of which any Certificateholder is subject,
access to the documentation regarding the Mortgage Loans required by applicable
regulations of the Federal Reserve Board, FDIC, OTS or any such governmental or
regulatory body, such access being afforded only upon reasonable request and
during normal business hours at the offices of the Servicer or Special Servicer.
Nothing in this Section 3.16 shall require the Servicer and Special Servicer to
violate, in the judgment of the Servicer or Special Servicer, as applicable, any
applicable law prohibiting disclosure of information with respect to the
Borrowers, and the failure of the Servicer or Special Servicer to provide access
as provided in this Section 3.16 as a result of such law shall not constitute a
breach of this Section 3.16. The Servicer or the Special Servicer may require
that such party execute a reasonable confidentiality agreement customary in the
industry (and approved by the Depositor) with respect to such information.
In connection with providing or granting any information or
access pursuant to the prior paragraph to a Certificateholder or any regulatory
authority that may exercise authority over a Certificateholder, the Servicer and
the Special Servicer may each require payment from such Certificateholder of a
sum sufficient to cover the reasonable costs and expenses of providing such
information or access, including, without limitation, copy charges and, in the
case of any such party requiring on site review in excess of three Business
Days, reasonable fees for employee time and for space; provided that no charge
may be made if such information or access was required to be given or made
available under applicable law without charge.
SECTION 3.17. Title and Management of REO Properties.
(a) In the event that title to any Mortgaged Property is
acquired for the benefit of Certificateholders in foreclosure, by deed in lieu
of foreclosure or upon abandonment or reclamation from bankruptcy, the deed or
certificate of sale shall be taken in the name of the Trustee, or its nominee,
on behalf of the Certificateholders, the Holder of the related Loan REMIC
Residual Interest and itself as Holder of the related Loan REMIC Regular
Interest and the Lower-Tier Regular Interests. The Special Servicer, on behalf
of the Trust Fund, shall dispose of any REO Property prior to the close of the
third calendar year beginning after the year in which the Trust Fund acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code,
unless (i) the Special Servicer on behalf of the Lower-Tier REMIC or the related
Loan REMIC, as applicable, has applied for an extension of such period pursuant
to Sections 856(e)(3) and 860G(a)(8)(A) of the Code, in which case the Special
Servicer shall sell such REO Property within the applicable extension period or
(ii) the Special Servicer seeks and subsequently receives an Opinion of Counsel
(which opinion shall be an expense of the Trust Fund), addressed to the Special
Servicer and Trustee, to the effect that the holding by the Trust Fund of such
REO Property for an additional specified period will not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (determined without regard to the exception applicable
for purposes of Section 860D(a) of the Code) at any time that any Certificate is
outstanding, in which event such period shall be extended by such additional
specified period subject to any conditions set forth in such Opinion of Counsel.
The Special Servicer, on behalf of the Trust Fund, shall dispose of any REO
Property held by the Trust Fund prior to the last day of such period (taking
into account extensions) by which such REO Property is required to be disposed
of pursuant to the provisions of the immediately preceding sentence in a manner
provided under Section 3.18 hereof. The Special Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for the
purpose of its prompt disposition and sale in a manner which does not cause such
REO Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a)).
(b) The Special Servicer shall have full power and authority,
subject only to the specific requirements and prohibitions of this Agreement, to
do any and all things in connection with any REO Property as are consistent with
the manner in which the Special Servicer manages and operates similar property
owned or managed by the Special Servicer or any of its Affiliates, all on such
terms and for such period as the Special Servicer deems to be in the best
interests of Certificateholders, and, in connection therewith, the Special
Servicer shall agree to the payment of management fees that are consistent with
general market standards. Consistent with the foregoing, the Special Servicer
shall cause or permit to be earned with respect to such REO Property any "net
income from foreclosure property," within the meaning of Section 860G(c) of the
Code, which is subject to tax under the REMIC Provisions only if it has
determined, and has so advised the Trustee in writing, that the earning of such
income on a net after-tax basis could reasonably be expected to result in a
greater recovery on behalf of Certificateholders than an alternative method of
operation or rental of such REO Property that would not be subject to such a
tax. The Special Servicer shall segregate and hold all revenues received by it
with respect to any REO Property separate and apart from its own funds and
general assets and shall establish and maintain with respect to any REO Property
a segregated custodial account (each, an "REO Account"), each of which shall be
an Eligible Account and shall be entitled "LaSalle National Bank, as Trustee, in
trust for Holders of Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999--C1, REO Account." The REO Property and
the related REO Account with respect to the Atlanta Marriott Loan, the DDRA Loan
and the Overland MHP Loan shall be treated as assets of the related Loan REMIC
for all purposes of this Agreement. The Special Servicer shall be entitled to
withdraw for its account any interest or investment income earned on funds
deposited in an REO Account to the extent provided in Section 3.07(b). The
Special Servicer shall deposit or cause to be deposited in the REO Account
within one Business Day after receipt all revenues received by it with respect
to any REO Property (other than Liquidation Proceeds), and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of such REO Property and for other Property Protection Expenses with respect to
such REO Property, including:
(i) all insurance premiums due and payable in respect
of any REO Property;
(ii) all real estate taxes and assessments in respect of
any REO Property that may result in the imposition of
a lien thereon;
(iii) all costs and expenses reasonable and necessary to
protect, maintain, manage, operate, repair and
restore any REO Property; and
(iv) any taxes imposed on the Upper Tier REMIC, the
Lower-Tier REMIC or the related Loan REMIC in respect
of net income from foreclosure property in accordance
with Section 4.05.
To the extent that such REO Proceeds are insufficient for the
purposes set forth in clauses (i) through (iii) above and the Special Servicer
has provided written notice of such shortfall to the Servicer at least five
Business Days (or such lesser period as may be necessary, in the reasonable
opinion of the Special Servicer, to prevent a material adverse effect on any
Mortgaged Property but in no event less than two Business Days) prior to the
date that such amounts are due, the Servicer shall advance the amount of such
shortfall unless the Servicer determines, in its good faith judgment, that such
Advance would be a Nonrecoverable Advance; provided, however, the Special
Servicer shall make reasonable efforts to request Advances once in any 30 day
period to satisfy all such shortfalls. The Special Servicer shall reasonably
cooperate with the Servicer in providing any information required to determine
whether an Advance would be a Nonrecoverable Advance and the Servicer shall
reasonably cooperate with the Special Servicer in providing any information
required to determine whether an Advance would be a Nonrecoverable Advance. If
the Servicer does not make any such Advance in violation of the immediately
preceding sentence, the Trustee shall make such Advance; and if the Trustee
fails to make any such Advance, the Fiscal Agent shall make such Advance, unless
in either case, the Trustee or the Fiscal Agent determines that such Advance
would be a Nonrecoverable Advance. The Trustee and the Fiscal Agent shall be
entitled to rely, conclusively, on any determination by the Servicer that an
Advance, if made, would be a Nonrecoverable Advance. The Trustee and the Fiscal
Agent, in determining whether or not a proposed Advance would be a
Nonrecoverable Advance, shall be subject to the standards applicable to the
Servicer hereunder. The Servicer, the Trustee or the Fiscal Agent, as
applicable, shall be entitled to reimbursement of such Advances (with interest
at the Advance Rate) made pursuant to the preceding sentence, to the extent set
forth in Section 3.06. The Special Servicer shall withdraw from each REO Account
and remit to the Servicer for deposit into the Collection Account on a monthly
basis prior to or on the related Due Date the Net REO Proceeds received or
collected from each REO Property, except that in determining the amount of such
Net REO Proceeds, the Special Servicer may retain in each REO Account reasonable
reserves for repairs, replacements and necessary capital improvements and other
related expenses.
Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend
any New Lease, if the New Lease by its terms will
give rise to any income that does not constitute
Rents from Real Property;
(ii) permit any amount to be received or accrued under any
New Lease, other than amounts that will constitute
Rents from Real Property;
(iii) authorize or permit any construction on any REO
Property, other than the repair or maintenance
thereof or the completion of a building or other
improvement thereon, and then only if more than ten
percent of the construction of such building or
other improvement was completed before default on
the related Mortgage Loan became imminent, all
within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate or allow any Person to Directly
Operate any REO Property on any date more than 90
days after its date of acquisition by the Trust Fund,
unless such Person is an Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) to the effect that such action
will not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code) at any
time that it is held by the Trust Fund, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
The Special Servicer shall be required to contract with an
Independent Contractor the fees and expenses of which shall be an expense of the
Trust Fund and payable out of REO Proceeds, for the operation and management of
any REO Property, within 90 days of the Trust Fund's acquisition thereof (unless
the Special Servicer shall have provided the Trustee with an Opinion of Counsel
that the operation and management of any REO Property other than through an
Independent Contractor shall not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Code Section 860G(a)(8)) (which
opinion shall be an expense of the Trust Fund), provided that:
(i) the terms and conditions of any such contract shall
be reasonable and customary for the area and type of
property and shall not be inconsistent herewith;
(ii) any such contract shall require, or shall be
administered to require, that the Independent
Contractor pay all costs and expenses incurred in
connection with the operation and management of
such REO Property, including those listed above,
and remit all related revenues (net of such costs
and expenses) to the Special Servicer as soon as
practicable, but in no event later than 30 days
following the receipt thereof by such Independent
Contractor;
(iii) none of the provisions of this Section 3.17(b)
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 to the Trust Fund or the
Trustee on behalf of the Certificateholders with
respect to the operation and management of any such
REO Property; and
(iv) 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.
(c) Promptly following any acquisition by the Trust Fund of an
REO Property, the Special Servicer shall obtain an Updated Appraisal thereof,
but only in the event that any Appraisal or Updated Appraisal with respect
thereto is more than 12 months old, in order to determine the fair market value
of such REO Property and shall notify the Depositor, the Servicer and the
Trustee hereto of the results of such appraisal. Any such appraisal shall be
conducted by an appraiser who is an MAI and the cost thereof shall be an expense
of the Trust Fund. The Special Servicer shall obtain a new Updated Appraisal or
a letter update every 12 months thereafter.
(d) When and as necessary, the Special Servicer shall deliver
to the Trustee a statement prepared by the Special Servicer setting forth the
amount of net income or net loss, as determined for federal income tax purposes,
resulting from the operation and management of a trade or business on, the
furnishing or rendering of a non-customary service to the tenants of, or the
receipt of any other amount not constituting Rents from Real Property in respect
of, any REO Property in accordance with Sections 3.17(a) and 3.17(b).
SECTION 3.18. Sale of Specially Serviced Mortgage Loans
and REO Properties.
(a) The Special Servicer may offer to sell to any Person any
Specially Serviced Mortgage Loan (other than a Split Loan as to which the
Trustee is not the Lead Lender) or any REO Property, or may offer to purchase
any Specially Serviced Mortgage Loan or any REO Property, if and when the
Special Servicer determines, consistent with the Servicing Standard, that no
satisfactory arrangements can be made for collection of delinquent payments
thereon and such a sale would be in the best economic interests of the Trust
Fund. With respect to any Specially Serviced Mortgage Loan or REO Property which
the Special Servicer has determined to sell in accordance with the foregoing,
the Special Servicer shall deliver to the Trustee an Officers' Certificate to
the effect that pursuant to the terms hereof, the Special Servicer has
determined to sell such Specially Serviced Mortgage Loan or REO Property in
accordance with this Section 3.18. The Special Servicer may then offer to sell
to any Person any Specially Serviced Mortgage Loan or any REO Property or,
subject to the following sentence, purchase any such Specially Serviced Mortgage
Loan or REO Property (in each case at the Repurchase Price therefor), but shall,
in any event, so offer to sell any REO Property no later than the time
determined by the Special Servicer to be sufficient to result in the sale of
such REO Property within the period specified in Section 3.17(a). The Special
Servicer shall deliver such Officers' Certificate and give the Trustee not less
than ten Business Days' prior written notice of its intention to sell any
Specially Serviced Mortgage Loan or REO Property, in which case the Special
Servicer shall accept the highest offer received from any Person for any
Specially Serviced Mortgage Loan or any REO Property in an amount at least equal
to the Repurchase Price therefor or, at its option, if it has received no offer
at least equal to the Repurchase Price therefor, purchase the Specially Serviced
Mortgage Loan or REO Property at the Repurchase Price.
In the absence of any such offer or purchase by the Special
Servicer, the Special Servicer shall accept the highest offer received from any
Person that is determined by the Special Servicer to be a fair price, as
determined in accordance with Section 3.18(b), for such Specially Serviced
Mortgage Loan or REO Property, if the highest offeror is a Person other than an
Interested Person, or is determined to be a fair price by the Trustee in
accordance with Section 3.18(b), if the highest offeror is an Interested Person;
provided, that the Trustee shall be entitled to engage, at the expense of the
Trust Fund, an Independent appraiser to determine whether the highest offer is a
fair price and, further provided, that if the highest offeror is an Interested
Person such offer shall not be accepted if it is less than the Repurchase Price,
unless the Rating Agencies have confirmed, in writing, that such acceptance will
not, in itself, result in the qualification, downgrade or withdrawal of the
then-current ratings assigned to the Certificates. Notwithstanding anything to
the contrary herein, neither the Trustee, in its individual capacity, nor any of
its Affiliates may make an offer or purchase any Specially Serviced Mortgage
Loan or any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such offer would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower offer if it determines, in
accordance with the Servicing Standard, that acceptance of such offer would be
in the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer (other than price)
are more favorable), provided that the offeror is not an Affiliate of the
Special Servicer. In the event that the Special Servicer determines with respect
to any REO Property that the offers being made with respect thereto are not in
the best interests of the Certificateholders and that the end of the period
referred to in Section 3.17(a) with respect to such REO Property is approaching,
the Special Servicer shall seek an extension of such period in the manner
described in Section 3.17(a); provided, however, that the Special Servicer shall
use its best efforts, consistent with the Servicing Standard, to sell any REO
Property prior to the Rated Final Distribution Date.
(b) In determining whether any offer received from an
Interested Person represents a fair price for any Specially Serviced Mortgage
Loan or any REO Property, the Trustee shall engage, at the expense of the Trust
Fund, an Independent appraiser to determine whether the higher offer is a fair
price, and the Trustee may conclusively rely on the opinion of an Independent
appraiser or other Independent expert in real estate matters retained by the
Trustee at the expense of the Trust Fund. In determining whether any offer
constitutes a fair price for any Specially Serviced Mortgage Loan or any REO
Property, the Special Servicer (if the highest offeror is not an Interested
Person) or the Trustee (or, if applicable, such appraiser) shall take into
account, and any appraiser or other expert in real estate matters shall be
instructed to take into account, as applicable, among other factors, any Updated
Appraisal previously obtained, the period and amount of any delinquency on the
affected Specially Serviced Mortgage Loan, the physical (including
environmental) condition of the related Mortgaged Property or such REO Property,
the state of the local economy and the Trust Fund's obligation to dispose of any
REO Property within the time period specified in Section 3.17(a).
(c) Subject to the provisions of Section 3.17, the Special
Servicer shall act on behalf of the Trust Fund in negotiating and taking any
other action necessary or appropriate in connection with the sale of any
Specially Serviced Mortgage Loan or REO Property, including the collection of
all amounts payable in connection therewith. Any sale of a Specially Serviced
Mortgage Loan or any REO Property shall be without recourse to, or
representation or warranty by, the Trustee, the Fiscal Agent, the Depositor, the
Servicer, the Special Servicer or the Trust Fund (except that any contract of
sale and assignment and conveyance documents may contain customary warranties of
title, so long as the only recourse for breach thereof is to the Trust Fund),
and, if such sale is consummated in accordance with the duties of the Special
Servicer, the Servicer, the Depositor, the Fiscal Agent and the Trustee pursuant
to the terms of this Agreement, no such Person who so performed shall have any
liability to the Trust Fund or any Certificateholder with respect to the
purchase price therefor accepted by the Special Servicer or, if the offeror is
an Interested Person, the Servicer (or the Trustee, if the Servicer is an
offeror).
(d) The Servicer shall file information returns regarding the
abandonment or foreclosure of Mortgaged Properties with the IRS at the time and
in the manner required by the Code based upon information provided by the
Special Servicer. The Special Servicer hereby agrees to provide the Servicer
with all information necessary for it to make such filings.
(e) The proceeds of any sale after deduction of the expenses
of such sale incurred in connection therewith shall be promptly, and in any
event within one Business Day following receipt thereof, deposited in the
Collection Account in accordance with Section 3.05(a)(iv).
SECTION 3.19. Additional Obligations of the Servicer and
Special Servicer; Inspections.
(a) The Servicer shall inspect or cause to be inspected (at
its own expense) each Mortgaged Property (other than those Mortgaged Properties
relating to Co-Lender Split Notes and Specially Serviced Mortgage Loans or REO
Properties) with an Allocated Loan Amount of (A) $2,000,000 or more at least
once every 12 months (other than Mortgage Properties securing Credit Lease
Loans), (B) less than $2,000,000 at least once every 24 months and (C) with
respect to a Mortgaged Property securing a Credit Lease Loan, at least once
every 24 months, provided, however, that in the event the Trustee notifies the
Special Servicer that the long-term unsecured debt rating of the credit tenant
or guarantor with respect to the Credit Lease Loan is downgraded by a full
letter rating since origination by either Rating Agency, then such Mortgaged
Property or Mortgaged Properties securing such Credit Lease Loan shall be
inspected by the Special Servicer within six months of such downgrade and,
thereafter, at least once every 24 months, in each case, such period commencing
in June 1999. If any Mortgage Loan (i) becomes a Specially Serviced Mortgage
Loan, (ii) has a Debt Service Coverage Ratio of less than 1.0 (except with
respect to Credit Lease Loans), or with respect to Credit Lease Loans, the
related credit tenant has defaulted or (iii) is delinquent for 60 days, each
Mortgaged Property related to such Specially Serviced Mortgage Loan shall be
inspected by the Special Servicer as soon as practicable and thereafter at least
every 12 months for so long as such condition exists. The Servicer or Special
Servicer, as applicable, shall send to the Rating Agencies (providing the Rating
Agencies have not provided instructions to the contrary) within 45 days of
completion, each inspection report. For any Mortgage Loans serviced by the
Servicer, the Special Servicer may inspect a Mortgaged Property upon at least 30
days notice to the Servicer of its intent. Upon completion of the inspection of
such Mortgaged Property, the Special Servicer shall provide a copy of the
inspection report for such property to the Servicer, and Servicer shall be
relieved of its then-current obligation to inspect such property.
The Special Servicer, at its own expense, shall have the right
to inspect Mortgaged Properties that are on the Watch List, provided that the
Special Servicer notifies the Servicer prior to such inspection and provides a
copy of the inspection report for such property to the Servicer. Any such
inspection by the Special Servicer shall be deemed to be the inspection required
pursuant to the immediately preceding paragraph.
The Servicer shall, as to each Mortgage Loan which is secured
by the interest of the related mortgagor under a ground lease promptly (and in
any event within 60 days of the date on which the Servicer receives the Mortgage
Loan Schedule) notify the related ground lessor of the transfer of such Mortgage
Loan to the Trustee on behalf of the Trust 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 Trustee and the Servicer.
(b) With respect to each Mortgage Loan (subject to the rights
of the Servicer pursuant to Section 3.29(c)), the Special Servicer shall enforce
the Trustee's rights with respect to the Manager under the related Loan
Documents and Management Agreement, provided, that, if such right accrues under
the related Loan Documents or Management Agreement only because of the
occurrence of the related Anticipated Repayment Date, if any, the Special
Servicer shall irrevocably waive such right with respect to such date. In the
event the Special Servicer is entitled to terminate the Manager, the Special
Servicer shall promptly give notice to the Trustee (who shall copy the
Certificateholders), the Originator, the Servicer, the Depositor and each Rating
Agency.
SECTION 3.20. Authenticating Agent.
The Trustee may appoint an Authenticating Agent to execute and
to authenticate Certificates. The Authenticating Agent must be acceptable to the
Depositor and the Servicer and must be a corporation organized and doing
business under the laws of the United States of America or any state, having a
principal office and place of business in a state and city acceptable to the
Depositor and the Servicer, having a combined capital and surplus of at least
$15,000,000, authorized under such laws to do a trust business and subject to
supervision or examination by federal or state authorities. The Trustee shall
serve as the initial Authenticating Agent and the Trustee hereby accepts such
appointment.
Any corporation into which the Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Authenticating Agent shall be party, or any corporation succeeding to the
corporate agency business of the Authenticating Agent, shall 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.
The Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Depositor or the Servicer. The Trustee may at any time terminate the agency of
the Authenticating Agent by giving written notice of termination to the
Authenticating Agent, the Depositor and the Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case at any time the
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 3.20, the Trustee promptly shall appoint a successor
Authenticating Agent, which shall be acceptable to the Servicer and the
Depositor, and shall mail notice of such appointment to all Certificateholders.
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 herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 3.20.
The Authenticating Agent shall have no responsibility or
liability for any action taken by it as such at the direction of the Trustee.
Any reasonable compensation paid to the Authenticating Agent shall be an
unreimbursable expense of the Trustee.
SECTION 3.21. Appointment of Custodians.
The Trustee may appoint one or more Custodians to hold all or
a portion of the Mortgage Files as agent for the Trustee, by entering into a
Custodial Agreement. The Trustee agrees to comply with the terms of each
Custodial Agreement and to enforce the terms and provisions thereof against the
Custodian for the benefit of the Certificateholders. Each Custodian shall be a
depository institution subject to supervision by federal or state authority,
shall have a combined capital and surplus of at least $10,000,000, shall have a
long-term debt rating of at least "BBB" from S&P and "Baa2" from Xxxxx'x, unless
the Trustee shall have received prior written confirmation from each Rating
Agency that the appointment of such Custodian would not cause such Rating Agency
to withdraw, qualify or downgrade any of its then-current ratings on the
Certificates, and shall be qualified to do business in the jurisdiction in which
it holds any Mortgage File. Each Custodial Agreement may be amended only as
provided in Section 10.07. Any reasonable compensation paid to the Custodian
shall be an unreimbursable expense of the Trustee. The Trustee shall serve as
the initial Custodian. The Custodian shall maintain a fidelity bond in the form
and amount that are customary for securitizations similar to the securitization
evidenced by this Agreement, with the Trustee named as loss payee. The Custodian
shall be deemed to have complied with this provision if one of its respective
Affiliates has such fidelity bond coverage and, by the terms of such fidelity
bond, the coverage afforded thereunder extends to the Custodian. In addition,
the Custodian shall keep in force during the term of this Agreement a policy or
policies of insurance covering loss occasioned by the errors and omissions of
its officers and employees in connection with its obligations hereunder in the
form and amount that are customary for securitizations similar to the
securitization evidenced by this Agreement, with the Trustee named as loss
payee. All fidelity bonds and policies of errors and omissions insurance
obtained under this Section 3.21 shall be issued by a Qualified Insurer, or
shall be otherwise acceptable to the Rating Agencies.
SECTION 3.22. Reports to the Securities and Exchange
Commission; Available Information.
(a) The Trustee shall prepare and sign, on behalf of the
Depositor, any and all Exchange Act Reports; provided, however, that (i) the
Depositor shall prepare, sign and file with the Commission the initial Form 8-K
relating to the Trust Fund, (ii) the Servicer shall prepare and sign on behalf
of the Depositor any Exchange Act Report which includes an Annual Compliance
Report relating to the Servicer, and (iii) the Special Servicer shall prepare
and sign on behalf of the Depositor any Exchange Act Report which includes an
Annual Compliance Report relating to the Special Servicer. Each Exchange Act
Report consisting of a monthly Distribution Date Statement, Comparative
Financial Status Report, Delinquent Loan Status Report, Historical Loss Estimate
Report, Historical Loan Modification Report, REO Status Report, Operating
Statement Analysis, NOI Adjustment Worksheet, Watch List, Loan Payoff
Notification Report, Premium Loan Report or report pursuant to Section 4.02(b)
shall be prepared as an exhibit or exhibits to a Form 8-K. Each Exchange Act
Report consisting of an Annual Compliance Report shall be prepared as exhibits
to an Annual Report on Form 10-K and shall identify the aggregate number of
Holders of Public Certificates and Depository Participants holding positions in
Public Certificates as of December 31 (or the nearest Business Day if such date
is not a Business Day) of the related year. For each Exchange Act Report, the
Trustee or the Special Servicer, as applicable, shall prepare (i) a
manually-signed paper version of such report and (ii) an electronic version of
such report, which version shall be prepared as a Microsoft Word for Windows
file (or in such other format as the Trustee, the Depositor and the Servicer or
the Special Servicer may agree), provided, that, with respect to the electronic
version of each Exchange Act Report consisting of a monthly Distribution Date
Statement, the Servicer need only deliver an electronic version of the related
Form 8-K and the Trustee shall attach an electronic version of the related
monthly Distribution Date Statement thereto as an exhibit. Exchange Act Reports
consisting of (i) a monthly Distribution Date Statement shall be filed within
ten days after the related Distribution Date; (ii) a Comparative Financial
Status Report, Delinquent Loan Status Report, Historical Loss Estimate Report,
Historical Loan Modification Report, REO Status Report, Operating Statement
Analysis, NOI Adjustment Worksheet, Watch List, Loan Payoff Notification Report,
Premium Loan Report or report pursuant to Section 4.02(b) shall be filed within
ten days after each Distribution Date; and (iii) an Annual Compliance Report
shall be filed on or prior to March 15 of each calendar year. Electronic
versions of each Exchange Act Report shall be delivered to the Trustee on a
computer diskette (delivered by courier in packaging designed to shield such
diskette from damage in transmission) or by means of electronic data transfer
system mutually agreed upon by the Trustee and the Servicer or Special Servicer.
The Trustee shall forward each Exchange Act Report to the Depositor (and its
attorneys, Cadwalader, Xxxxxxxxxx & Xxxx, Attn: Xxxx X. Xxxxx in a manner and in
a format agreed upon by the Trustee and the Depositor. Manually-signed copies of
each Exchange Act Report shall be delivered to the Depositor at the address set
forth in Section 10.04 to the attention of Nez Mustafic, with a copy to Xxxxxxxx
Xxxxxxx, Esq. (or such other Persons as are designated in writing by the
Depositor), with a copy to the Trustee.
If information for any Exchange Act Report is incomplete by
the date on which such report is required to be filed under the Exchange Act,
the Trustee or, with respect to any Annual Compliance Report relating to the
Special Servicer or the Servicer, the Special Servicer or the Servicer, as
applicable, shall prepare and execute a Form 12b-25 under the Exchange Act and
shall deliver an electronic version of such form to the Trustee for forwarding
to the Depositor as provided above. The Servicer or the Special Servicer, as
applicable, shall deliver the related report in electronic form to the Trustee
when such information is available and such completed report shall be forwarded
electronically by the Trustee to the Depositor.
None of the Servicer, the Special Servicer and the Trustee
shall (i) file a Form ID with respect to the Depositor or (ii) cause the Trust
Fund to stop filing reports, statements and information with the Commission
pursuant to this Section unless directed to do so by the Depositor or the
continued reporting is prohibited under the Exchange Act or any regulations
thereunder. Upon the written request of the Depositor, the Servicer shall file a
Form 15 relating to the Trust Fund with the Commission and send a copy thereof
to the Trustee and the Depositor.
The Trustee shall, at the written direction of the Depositor,
solicit any and all proxies of the Certificateholders whenever such proxies are
required to be solicited pursuant to the Exchange Act.
(b) The Servicer or the Special Servicer with respect to
Specially Serviced Mortgage Loans shall, in accordance with such reasonable
rules and procedures as it may adopt (which may include the requirement that an
agreement that provides that such information shall be used solely for purposes
of evaluating the investment characteristics of the Certificates be executed to
the extent the Servicer, or the Special Servicer with respect to Specially
Serviced Mortgage Loans, deems such action to be necessary or appropriate),
also, make available any information relating to the Mortgage Loans, the
Mortgaged Properties or the Borrowers, for review by the Depositor, the Rating
Agencies and any other Persons to whom the Servicer, or the Special Servicer
with respect to Specially Serviced Mortgage Loans, believes such disclosure is
appropriate, in each case except to the extent doing so is prohibited by
applicable law or by any related Loan Documents related to a Mortgage Loan. In
connection with providing or granting any information or access pursuant to this
paragraph, the Servicer and the Special Servicer may require payment from the
Depositor, or other Persons (other than the Rating Agencies) of a sum sufficient
to cover the reasonable costs and expenses of providing such information or
access, including, without limitation, copy charges and, in the case of any such
party requiring on-site review in excess of three Business Days, reasonable fees
for employee time and for space; provided that no charge may be made if such
information or access was required to be given or made available under
applicable law.
(c) The Servicer and the Special Servicer shall make available
at their offices during normal business hours, or send to the requesting party
at the expense of each such requesting party (other than the Rating Agencies and
the Depositor) for review by the Depositor, the Trustee, the Rating Agencies,
any Certificateholder, any Person identified to the Servicer or the Special
Servicer, as applicable, by a Certificateholder as a prospective transferee of a
Certificate and any other Persons to whom the Servicer or the Special Servicer,
as applicable, believes such disclosure to be appropriate the following items:
(i) all financial statements, occupancy information, rent rolls, retail sales
information, average daily room rates and similar information received by the
Servicer or the Special Servicer, as applicable, from each Borrower, (ii) the
inspection reports prepared by or on behalf of the Servicer or the Special
Servicer, as applicable, in connection with the property inspections pursuant to
Section 3.19, (iii) any and all modifications, waivers and amendments of the
terms of a Mortgage Loan entered into by the Servicer or the Special Servicer,
as applicable and (iv) any and all officer's certificates and other evidence
delivered to the Trustee and the Depositor to support the Servicer's
determination that any Advance was, or if made would be, a Nonrecoverable
Advance. Copies of any and all of the foregoing items shall be available from
the Servicer or the Special Servicer, as applicable, or the Trustee, as
applicable, upon request. Nothing in this Section 3.22(c) shall require the
Servicer or the Special Servicer to violate, in the judgment of the Servicer or
the Special Servicer, as applicable, any applicable law prohibiting disclosure
of information with respect to Borrower and the failure of the Servicer or the
Special Servicer to provide access as provided under this Section 3.22(c) as a
result of such law shall not constitute a breach of this Section.
(d) Notwithstanding the obligations of the Trustee set forth
in the preceding provisions of this Section 3.22, the Trustee, Servicer or
Special Servicer may withhold any information not yet included in a Form 8-K
filed with the Commission or otherwise made publicly available with respect to
which it has determined that such withholding is appropriate.
(e) Notwithstanding any provisions in this Agreement to the
contrary, the Trustee shall not be required to review the content of any
Exchange Act Report for compliance with applicable securities laws or
regulations, completeness, accuracy or otherwise, and the Trustee shall not have
any liability with respect to any Exchange Act Report filed with the Commission
or delivered to Certificateholders. None of the Servicer, the Special Servicer
and the Trustee shall be responsible for the accuracy or completeness of any
information supplied by a Borrower or a third party for inclusion in any Form
8-K, and each of the Servicer, the Special Servicer and the Trustee shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense incurred in connection with any legal action relating to any statement
or omission or alleged statement or omission therein. None of the Trustee, the
Special Servicer, and the Servicer shall have any responsibility or liability
with respect to any Exchange Act Report filed by the Depositor, and each of the
Servicer, the Special Servicer and the Trustee shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense incurred in
connection with any legal action relating to any statement or omission or
alleged statement or omission therein.
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts.
The Servicer shall administer each Lock-Box Account, Cash
Collateral Account, Escrow Account and Reserve Account in accordance with the
related Mortgage or Loan Agreement, Cash Collateral Account Agreement or
Lock-Box Agreement, if any.
SECTION 3.24. Property Advances.
(a) The Servicer (or, to the extent provided in Section
3.24(b), the Trustee or the Fiscal Agent) shall make any Property Advances as
and to the extent otherwise required pursuant to the terms hereof. For purposes
of distributions to Certificateholders and compensation to the Servicer, Special
Servicer or Trustee, Property Advances shall not be considered to increase the
principal balance of any Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so provide.
(b) The Servicer shall notify the Trustee, the Special
Servicer and the Fiscal Agent, in writing promptly upon, and in any event within
one Business Day after, becoming aware that it will be unable to make any
Property Advance required to be made pursuant to the terms hereof, and in
connection therewith, shall set forth in such notice the amount of such Property
Advance, the Person to whom it will be paid, and the circumstances and purpose
of such Property Advance, and shall set forth therein information and
instructions for the payment of such Property Advance, and, on the later of (i)
the date specified in such notice for the payment of such Property Advance and
(ii) the fifth Business Day following such notice, the Trustee, subject to the
provisions of Section 3.24(c), shall pay the amount of such Property Advance in
accordance with such information and instructions. If the Trustee fails to make
any Property Advance required to be made under this Section 3.24, the Fiscal
Agent, subject to the provisions of Section 3.24(c), shall make such Advance on
the same day the Trustee was required to make such Property Advance and,
thereby, the Trustee shall not be in default under this Agreement.
(c) None of the Servicer, the Trustee or the Fiscal Agent
shall be obligated to make a Property Advance as to any Mortgage Loan or REO
Property if the Servicer, the Trustee or the Fiscal Agent, as applicable,
determines in its good faith business judgment that such Advance will be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent shall be entitled to
rely, conclusively, on any determination by the Servicer, that a Property
Advance, if made, would be a Nonrecoverable Advance. The Trustee and the Fiscal
Agent, in determining whether or not a Property Advance previously made is, or a
proposed Property Advance, if made, would be, a Nonrecoverable Advance shall be
subject to the standards applicable to the Servicer hereunder.
(d) The Servicer, the Trustee and/or the Fiscal Agent, as
applicable, shall be entitled to the reimbursement of Property Advances made by
any of them to the extent permitted pursuant to Section 3.06(ii) of this
Agreement, together with any related Advance Interest Amount in respect of such
Property Advances, and the Servicer hereby covenants and agrees to promptly seek
and effect the reimbursement of such Property Advances from the related
Borrowers to the extent permitted by applicable law and the related Loan
Documents.
SECTION 3.25. Appointment of Special Servicer.
(a) Lennar Partners, Inc. is hereby appointed as the
initial Special Servicer to service each Specially Serviced Mortgage Loan.
(b) The Directing Holders shall be entitled to remove the
Special Servicer with or without cause and to appoint a successor Special
Servicer, provided that each Rating Agency confirms to the Trustee in writing
that such removal and appointment, in and of itself, would not cause a
downgrade, qualification or withdrawal of the then-current ratings assigned to
any Class of Certificates. If there is a Special Servicer Event of Default, the
Special Servicer shall be removed and replaced pursuant to Sections 7.01(c) and
7.02.
(c) The appointment of any such successor Special Servicer,
shall not relieve the Servicer, the Trustee or the Fiscal Agent of their
respective obligations to make Advances as set forth herein; provided, however,
the Servicer shall not be liable for any actions or any inaction of such
successor Special Servicer.
(d) No termination of the Special Servicer and appointment of
a successor Special Servicer shall be effective until the successor Special
Servicer has assumed all of its responsibilities, duties and liabilities
hereunder pursuant to a writing satisfactory to the Trustee and each Rating
Agency, as evidenced in writing, and the Trustee has received written
confirmation from each Rating Agency that such appointment would not cause any
Rating Agency to qualify, withdraw or downgrade any of its then-current ratings
on any Certificates. Any successor Special Servicer shall make the
representations and warranties provided for in Section 2.04(a) mutatis mutandis.
SECTION 3.26. Transfer of Servicing Between Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that any Mortgage Loan has become a
Specially Serviced Mortgage Loan, the Servicer shall promptly give notice
thereof, to the Special Servicer and shall use its reasonable best efforts to
provide the Special Servicer with all information, documents (but excluding the
original documents constituting the Mortgage File) and records (including
records stored electronically on computer tapes, magnetic discs and the like)
relating to the Mortgage Loan either in the Servicer's or any of its directors',
officers', employees', affiliates' or agents' possession or control or otherwise
available to the Servicer without undue burden or expense, and reasonably
requested by the Special Servicer to enable it to assume its duties hereunder
with respect thereto without acting through a sub-servicer. The Servicer shall
use its reasonable best efforts to comply with the preceding sentence within
five Business Days of the date such Mortgage Loan became a Specially Serviced
Mortgage Loan and in any event shall continue to act as Servicer and
administrator of such Mortgage Loan until the Special Servicer has commenced the
servicing of such Mortgage Loan, which shall occur upon the receipt by the
Special Servicer of the information, documents and records referred to in the
preceding sentence (provided that receipt of copies of all documents in the
Mortgage File shall suffice for such purpose). With respect to each Mortgage
Loan that becomes a Specially Serviced Mortgage Loan, the Servicer shall
instruct the related Borrower to continue to remit all payments in respect of
such Mortgage Loan to the Servicer. The Servicer or Special Servicer, as
applicable, may agree that, notwithstanding the preceding sentence, with respect
to each Mortgage Loan that became a Specially Serviced Mortgage Loan, the
Servicer shall instruct the related Borrower to remit all payments in respect of
such Mortgage Loan to the Special Servicer, provided that the payee in respect
of such payments shall remain the Servicer. The Special Servicer shall remit to
the Servicer any such payments received by it pursuant to the preceding sentence
within one Business Day of receipt. The Servicer shall forward any notices it
would otherwise send to the Borrower of a Specially Serviced Mortgage Loan to
the Special Servicer who shall send such notice to the related Borrower.
Upon determining that no event has occurred and is continuing
with respect to a Mortgage Loan that causes such Mortgage Loan to be a Specially
Serviced Mortgage Loan, the Special Servicer shall immediately give notice
thereof to the Servicer, and upon giving such notice, such Mortgage Loan shall
cease to be a Specially Serviced Mortgage Loan in accordance with the first
proviso of the definition of Specially Serviced Mortgage Loan, the Special
Servicer's obligation to service such Mortgage Loan shall terminate and the
obligations of the Servicer to service and administer such Mortgage Loan as a
Mortgage Loan that is not a Specially Serviced Mortgage Loan shall resume. In
addition, if the related Borrower has been instructed, pursuant to the last
sentence of the preceding paragraph, to make payments to the Special Servicer,
upon such determination, the Special Servicer shall instruct the related
Borrower to remit all payments in respect of such Specially Serviced Mortgage
Loan directly to the Servicer.
(b) In servicing any Specially Serviced Mortgage Loan, the
Special Servicer shall provide to the Trustee originals of documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (to the extent such documents are in the possession of the Special
Servicer) and copies of any additional related Mortgage Loan information,
including correspondence with the related Borrower, and the Special Servicer
shall promptly provide copies of all of the foregoing to the Servicer.
(c) Not later than 3:00 p.m. Central Time on the Business Day
preceding each date on which the Servicer is required to furnish a report under
Section 3.13(a) to the Trustee, the Special Servicer shall deliver to the
Trustee, with a copy to the Servicer a written statement describing, on a
Mortgage Loan by Mortgage Loan basis (for all Mortgage Loans for which the
Special Servicer is collecting the payments thereon), (i) the amount of all
payments on account of interest received on each Specially Serviced Mortgage
Loan, the amount of all payments on account of principal, including Principal
Prepayments, on each Specially Serviced Mortgage Loan, the amount of Net
Insurance Proceeds and Net Liquidation Proceeds received with respect to each
Specially Serviced Mortgage Loan, and the amount of net income or net loss, as
determined from management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
rental income that does not constitute Rents from Real Property with respect to
the REO Property relating to each applicable Specially Serviced Mortgage Loan,
in each case in accordance with Section 3.17 and (ii) such additional
information relating to the Specially Serviced Mortgage Loans as the Servicer,
or Trustee reasonably requests to enable it to perform its duties under this
Agreement.
(d) Notwithstanding the provisions of the preceding subsection
(c), the Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and shall provide the Special Servicer
with any information reasonably required by the Special Servicer to perform its
duties under this Agreement. The Special Servicer shall provide the Servicer
with any information reasonably required by the Servicer to perform its duties
under this Agreement.
(e) The Servicer shall maintain all records with respect to
defeased Mortgage Loans.
SECTION 3.27. Interest Reserve Account.
(a) On each Servicer Remittance Date occurring in February and
on any Servicer Remittance Date occurring in January which occurs in a year
which is not a leap year, the Servicer shall remit to the Trustee, in respect of
each Actual/360 Mortgage Loan, for deposit into the Interest Reserve Account, an
amount equal to one day's interest accrued at a per annum rate equal to 31/30 of
the related Mortgage Rate (less the Administrative Fee Rate) on the Stated
Principal Balance of such Mortgage Loan as of the last day of the then most
recently ended Interest Accrual Period, to the extent a full Monthly Payment or
P&I Advance is made in respect thereof (all amounts so deposited in any
consecutive January and February, "Withheld Amounts").
(b) On each Servicer Remittance Date occurring in March, the
Servicer shall instruct the Trustee to withdraw from the Interest Reserve
Account an amount equal to the Withheld Amounts from the preceding January and
February, if any, and deposit such amount into the Distribution Account.
SECTION 3.28. Limitations on and Authorizations of the
Servicer and Special Servicer with Respect to
Certain Mortgage Loans.
(a) Prior to taking any action with respect to a Mortgage Loan
secured by Mortgaged Properties located in a "one-action" state, the Servicer,
with respect to non-Specially Serviced Mortgage Loans, or Special Servicer, with
respect to Specially Serviced Mortgage Loans, as applicable, shall consult with
legal counsel, the fees and expenses of which shall be an expense of the Trust
Fund.
(b) With respect to any Mortgage Loan which permits the
related Borrower, with the consent or grant of a waiver by mortgagee, to incur
additional indebtedness, to grant additional encumbrances against the related
Mortgaged Property or to amend or modify the related Borrower's organizational
documents or the organizational documents of the owner of the Borrower, then the
Special Servicer may either consent to such action, or grant a waiver with
respect thereto, only if the Special Servicer determines that such consent or
waiver is likely to result in an equal or greater recovery on a present value
basis (discounted at the related Mortgage Rate) than would not consenting to
such action, and the Special Servicer first obtains written confirmation from
each Rating Agency that such consent or grant of a waiver would not, in and of
itself, result in a downgrade, qualification or withdrawal of any of the
then-current ratings assigned to the Certificates.
(c) With respect to the Mortgage Loans that require the
related Borrower to pay Rating Agency monitoring or review fees, the Servicer or
the Special Servicer, in accordance with the Servicing Standard, shall enforce
the obligation of the related Borrowers to pay Rating Agency monitoring or
review fees and the Servicer shall remit such fees from the related Cash
Collateral Account for payment of such fees to the applicable Rating Agencies.
The Servicer shall receive bills from the Rating Agencies for monitoring, review
and surveillance of the Certificates and the Mortgage Loans on behalf of CCA and
shall promptly notify and send such bills to CCA, Attention: Xxxxxx X. Xxxxxxxx.
CCA will notify each Rating Agency to xxxx CCA for such services and to send
such bills to the Servicer. The Servicer shall notify CCA of the portion of the
xxxx that it has paid from funds collected from such Borrowers and CCA will pay
such portion of the xxxx not paid from funds provided by the applicable
Borrowers (as described in this section (c)). Any Rating Agency monitoring or
review fees shall be paid by CCA on an ongoing basis, provided, that if such
fees are not paid by CCA within 30 days after notice from the Servicer, they
will be paid from amounts otherwise distributable to the Class M-2 Certificates
on the next succeeding Distribution Date pursuant to the terms of this
Agreement, and, to the extent such amounts are insufficient to make payment on
such fees, such fees will be paid by the Servicer and shall constitute a
Property Advance hereunder.
(d) With respect to all Mortgage Loans that provide that the
holder of the related Note may apply amounts received thereunder (including,
without limitation, Liquidation Proceeds) against principal, interest and any
other sums due in the order as the holder shall determine, the Servicer shall
apply amounts received in respect of any such Mortgage Loan (after using such
amounts to reimburse the Servicer, the Trustee or the Fiscal Agent, as
applicable, for outstanding Advances that were made as to such Mortgage Loan)
(i) first to interest (other than Excess Interest or Default Interest) due
thereunder; (ii) next to principal; (iii) next to Default Interest due
thereunder; (iv) next to Prepayment Premiums (excluding any Return of Premium
Amounts) due thereunder; (v) then to any Excess Interest due thereunder; (vi)
then to reimburse any litigation or other expenses incurred in collecting any
such amounts received in respect of such Mortgage Loan; (vii) then to any Return
of Premium Amounts due thereunder and (viii) finally to any other sums due
thereunder.
(e) With respect to the Mortgage Loans that are ARD Loans,
neither the Servicer (including the Servicer in its capacity as a
Certificateholder, if applicable) nor the Special Servicer shall take any
enforcement action with respect to the payment of Excess Interest or principal
in excess of the principal component of the constant Monthly Payment, other than
requests for collection, until the maturity date of the related Mortgage Loan.
(f) To the extent not inconsistent with the related Mortgage
Loan, the Special Servicer shall not consent to a change of franchise
affiliation with respect to a Mortgaged Property unless it obtains written
confirmation from S&P and Xxxxx'x that such consent would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then-current ratings
assigned to the Certificates.
(g) With respect to any Mortgage Loan secured by a senior
housing/healthcare facility, the Special Servicer shall hire a consultant which
is experienced in the operation of such facilities in the event that such
Mortgage Loan becomes a Specially Serviced Mortgage Loan, the cost of which
shall constitute a Property Advance to be paid by the Servicer subject to the
second paragraph of Section 3.04(a).
(h) With respect to the Mortgage Loans that are ARD Loans, the
Special Servicer shall be permitted, in its discretion, to waive all or any
accrued Excess Interest if, prior to the related maturity date, the related
Borrower has requested the right to prepay the Mortgage Loan in full together
with all payments required by the Mortgage Loan in connection with such
prepayment (except for a portion of accrued Excess Interest, provided that the
Special Servicer's determination to waive the right to such accrued Excess
Interest is reasonably likely to produce an equal or greater payment to
Certificateholders on a present value basis (discounted at the related Mortgage
Rate) than a refusal to waive the right to such Excess Interest. Any such waiver
shall not be effective until such prepayment is tendered. Additionally, with
respect to any ARD Loan, the Special Servicer is permitted, in accordance with
the Servicing Standard, to waive the portion of accrued Excess Interest, if any,
accrued at a rate in excess of 2% above the related Mortgage Rate if (i) a
default has occurred or is reasonably foreseeable or (ii) the Special Servicer
has determined that such a waiver is likely to produce an equal or greater
payment to Certificateholders on a present value basis. Neither the Servicer nor
the Special Servicer will have any liability to the Trust Fund, the
Certificateholders or any other Person so long as such determination is based on
such criteria.
(i) With respect to the Mortgage Loans that (i) require
earthquake insurance, or (ii) (A) at the date of origination were secured by
Mortgaged Properties on which the related Borrower maintained earthquake
insurance and (B) have provisions which enable the Servicer to continue to
require the related Borrower to maintain earthquake insurance, the Servicer
shall require the related Borrower to maintain such insurance in the amount, in
the case of clause (i), required by the Mortgage Loan and in the amount, in the
case of clause (ii), maintained at origination, in each case, to the extent such
amounts are available at commercially reasonable rates. Any determination by the
Servicer that such insurance is not available at commercially reasonable rates
shall be subject to confirmation by S&P that such determination not to purchase
such insurance will not result in a downgrade, qualification or withdrawal of
the then-current ratings assigned to the Certificates rated by S&P.
(j) The Servicer shall send written notice to each Borrower
and the related Manager and clearing bank that, if applicable, the Servicer
and/or the Trustee has been appointed as the "Designee" of the "Lender" under
any related Lock-Box Agreement.
(k) Each of the Servicer and the Special Servicer hereby
agrees to use efforts consistent with the Servicing Standard to abide by the
terms and conditions precedent to payment of claims under any Residual Value
Policies and to use efforts consistent with the Servicing Standard to take all
such action as may be required to comply with the terms and provisions of such
policies in order to maintain, in full force and effect, such Residual Value
Policies. In addition to complying with all conditions to coverage, the Special
Servicer hereby agrees that it will use efforts consistent with the Servicing
Standard to take any and all actions required under the Residual Value Policy in
connection with any claim, including (i) the timely presentation of a proof of
loss containing all required information, (ii) providing reasonable access to
any Mortgaged Property (but only to the extent such access is available pursuant
to the related Loan Documents, applicable law and the related Credit Lease),
(iii) the providing of any other notices required under the Residual Value
Policy in a timely fashion, and (iv) the timely submission of claims under the
Residual Value Policy to the extent the Special Servicer determines in
accordance with the Servicing Standard that any such claim would not be excluded
under the terms of the Residual Value Policy. Any and all amounts collected
under a Residual Value Policy shall be immediately deposited in the Collection
Account, subject to withdrawal as provided herein.
(l) For any Mortgage Loan as to which, under the terms of the
related Loan Documents, the mortgagee may, in its discretion, apply Insurance
Proceeds, condemnation awards or escrowed funds to the prepayment of such loan
prior to the expiration of the related Lock-out Period, the Servicer may only
make such a prepayment if the Servicer has first consulted with the Special
Servicer (if the Special Servicer is not the Servicer).
(m) [Reserved]
(n) The Special Servicer (together with its employees,
officers and directors) shall not utilize the proprietary and nonpublic
information that it becomes aware of in servicing the Mortgage Loans to render
advice in connection with, solicit or otherwise participate in the refinancing
of any Mortgage Loans (whether at maturity or otherwise, unless the Mortgage
Loan Seller confirms in writing that it will not pursue the refinancing of such
Mortgaged Property). The Special Servicer shall not make its Mortgage Loan
servicing system available to the Special Servicer's Affiliates, engaged in the
commercial mortgage origination business for the purpose of refinancing a
Mortgage Loan prior to or at its due date.
(o) The Servicer and the Special Servicer shall administer the
Split Notes in accordance with the related Co-Lender Agreements.
(p) Without limiting the obligations of the Servicer hereunder
with respect to the enforcement of a Borrower's obligations under the related
Mortgage Loan Documents, the Servicer agrees that it shall use efforts
consistent with the Servicing Standard to enforce the provisions of the Mortgage
Loan Documents with respect to the collection of Prepayment Premiums.
(q) In the event that a Rating Agency shall charge a fee in
connection with providing confirmation under this Agreement that a proposed
action, including any enforcement of a due-on-encumbrances clause, will not
result in the downgrade, withdrawal, or qualification of any rating assigned to
any Class of Certificates, the Servicer or Special Servicer shall use efforts
consistent with the Servicing Standard to require the related Borrower to pay
such fee to the full extent permitted under the applicable Mortgage Loan
Documents. If the Borrower fails to pay such fee, then the Servicer and Special
Servicer shall not take such proposed action; provided that if the Servicer or
Special Servicer determines that (A) the Borrower is not obligated to pay such
expense or (B) failure to waive such due-on-encumbrance provision or take such
proposed action will result in the borrower defaulting under the related
Mortgage Loan and that, in the event of such default, failure to waive such
due-on-encumbrance provision or take such proposed action would result in a
lesser net recovery with respect to the related Mortgage Loan than would occur
if the Servicer or Special Servicer were to take such proposed action, the
Depositor shall pay such expenses; provided, that if the Depositor does not pay
such expenses, any expenses incurred by the Servicer or Special Servicer, as
applicable, shall be reimbursable as a Property Advance.
(r) With respect to the Value City Credit Lease Loan, the
Servicer or Special Servicer (if such Mortgage loan is a Specially Serviced
Loan) shall not exercise any discretion to approve or disapprove the
substitution of an alternate property for a Mortgaged Property pursuant to
Section 43 of the lease agreement relating thereto; provided, that the related
Borrower's delivery of written confirmation from the Rating Agencies that such
substitution will not result in the withdrawal, qualification or downgrade of
the then-current ratings of any Class of Certificates will constitute lender
approval and the related Borrower's failure to deliver such written confirmation
will constitute lender disapproval.
(s) To the extent not inconsistent with the related Mortgage
Loan, neither the Servicer nor the Special Servicer shall consent to a
replacement of the related Manager with respect to a Mortgaged Property unless
it obtains written confirmation from S&P and Xxxxx'x that such consent would
not, in and of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates; provided, however, that if
the Stated Principal Balance of such Mortgage Loan as of the day immediately
prior to the date of determination plus the principal balance of any Mortgage
Loans that are cross-collateralized, cross-defaulted or made to related
borrowers with the Mortgage Loan subject to such modification is less than the
lesser of (x) (i) 2% for Xxxxx'x and (ii) 5% for S&P of the total aggregate
Stated Principal Balances of the Mortgage Loans and (y) $30,000,000, and the
Mortgage Loan is not, at the time of determination, one of the ten largest
Mortgage Loans in the Trust Fund, such written confirmation shall not be
required from the applicable Rating Agency.
(t) To the extent not inconsistent with the related Mortgage
Loan, none of the Servicer or the Special Servicer shall consent to a transfer
of ownership interest in any Borrower or beneficial owner of Borrower with
respect to a Mortgaged Property unless it obtains written confirmation from the
Rating Agencies that such consent would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates; provided, however, that if the Stated Principal Balance of
such Mortgage Loan as of the day immediately prior to the date of determination
plus the principal balance of any Mortgage Loans that are cross-collateralized,
cross-defaulted or made to related borrowers with the Mortgage Loan subject to
such modification, is less than the lesser of (x) (i) 2% for Xxxxx'x and (ii) 5%
for S&P of the total aggregate Stated Principal Balances of the Mortgage Loans
and (y) $30,000,000, and the Mortgage Loan is not one of the ten largest
Mortgage Loans in the Trust Fund, such written confirmation shall not be
required from the applicable Rating Agency.
(u) To the extent not inconsistent with the related Mortgage
Loan, the Servicer shall maintain all reserve accounts and cash collateral
accounts as Eligible Accounts and shall invest funds in such accounts in
Permitted Investments.
(v) To the extent not inconsistent with the related Mortgage
Loan, the Special Servicer shall, as a condition to granting consent to any
material alteration of a Mortgaged Property require any such Borrower to post
cash security in the amount of 125% of the projected cost of such alteration,
provided, however, that if the Stated Principal Balance of such Mortgage Loan as
of the day immediately prior to the date of determination or group of
cross-collateralized Mortgage Loans or group of Mortgage Loans to affiliated
Borrowers, as the case may be, is less than the lesser of (x) 2% of the total
aggregate Stated Principal Balances of the Mortgage Loans and (y) $30,000,000,
and is not, at the time of determination, one of the ten largest Mortgage Loans
in the Trust Fund, such deposit shall not be required. A material alteration
shall be an alteration where the projected cost of such alteration exceeds 5% of
the Stated Principal Balance of such Mortgage Loan.
(w) Pursuant to the provisions of any Mortgage Loan which
provides for the removal of a property manager, any calculation of Debt Service
Coverage Ratio by the Servicer or the Special Servicer shall use the Mortgage
Rate, and not the Revised Mortgage Rate, regardless of the rate in effect at the
time of such calculation.
(x) The Special Servicer shall not remove any Manager solely
because any Mortgage Loan has reached its Anticipated Repayment Date and there
remains an outstanding principal balance on such Mortgage Loan.
(y) The assignment to the Trust Fund of the ACCOR Credit Lease
notwithstanding, the right of the landlord under the ACCOR Credit Lease to
approve of the substitution of the related Mortgaged Properties under certain
specified circumstances may be exercised only by the Borrower and not by the
Trustee, the Servicer or the Special Servicer, to the extent consistent with the
applicable law and the related Loan Documents; provided , that the foregoing
shall not contravene any requirement under the Loan Documents to obtain any
Rating Agency confirmation.
SECTION 3.29. Modification, Waiver, Amendment and Consents.
(a) The Special Servicer may, consistent with the Servicing
Standard, agree to the modification, waiver or amendment of any term of a
Mortgage Loan which is in default or as to which default is reasonably
foreseeable, provided, in the sole, good faith judgment of the Special Servicer,
such modification, waiver or amendment would increase the recovery to
Certificateholders on a net present value basis documented to the Trustee. The
Special Servicer may either foreclose or elect to grant up to three one-year
extensions on any such Mortgage Loan that is a Specially Serviced Mortgage Loan;
provided, however, that no such extension may extend the final Maturity Date
beyond (a) the date that is two years prior to the Final Rated Distribution Date
or (b) the date that is ten years prior to the expiration of any related ground
lease.
To the extent that either the Servicer or Special Servicer
waives any Default Interest or late payment charge in respect of any Mortgage
Loan, whether pursuant to Section 3.03(a) or this Section 3.29, the respective
amounts of additional servicing compensation payable to the Servicer and the
Special Servicer out of such Default Interest or late payment charges shall be
reduced proportionately based upon the respective amounts that had been payable
thereto out of such Default Interest or late payment charges immediately prior
to such waiver.
(b) The Special Servicer may, subject to Section 3.29(f) and
consistent with the Servicing Standard, agree to any modification, waiver or
amendment (other than any modifications, waivers or amendments to any
non-Specially Serviced Mortgage Loan expressly the responsibility of the
Servicer, pursuant to Section 3.29(c)) of any term of any Mortgage Loan that is
not in default or for which a default is not reasonably foreseeable with the
consent of the Holders of Certificates representing greater than 50% of the
Voting Rights of the most subordinate Class or Classes of Certificates then
outstanding (provided, for the purpose of determining the most subordinate Class
of Certificates then outstanding, (i) the Class A-1, Class A-2, Class A-3, Class
A-4 and Class X Certificates collectively and (ii) the Class M-1 and Class M-2
Certificates collectively will, in each case, be treated as one Class)
representing a minimum of 1.0% of the aggregate initial Certificate Balances of
all Classes of Certificates (or if the Certificate Balance of such Class or
Classes has been notionally reduced based on Appraisal Reduction Amounts to less
than 25% of its initial Certificate Balance, the holders of the next most
subordinate Class) (the "Directing Holders"), subject, however, to each of the
following limitations, conditions and restrictions:
(i) [Reserved];
(ii) the Special Servicer shall not release or substitute
material collateral except as provided in clause
(iii) below;
(iii) except as expressly provided in the related
Mortgage or in connection with a material adverse
environmental condition at the related Mortgaged
Property or through defeasance or the assumption of
a Borrower's obligations with respect to a Mortgage
Loan in accordance with the terms thereof and the
provisions of Section 3.09 hereof, the Special
Servicer may not take any action that results in a
release of the lien of the related Mortgage on any
material portion of such Mortgaged Property without
a corresponding principal prepayment.
(iv) the Special Servicer shall not permit any Borrower
to add any collateral unless (A) the Special
Servicer has first determined in accordance with
the Servicing Standard, based upon an environmental
assessment prepared by an Independent Person who
regularly conducts environmental assessments, at
the expense of the Borrower, that such additional
collateral is in compliance with applicable
environmental laws and regulations and that there
are no circumstances or conditions present with
respect to such new collateral relating to the use,
management or disposal of any hazardous materials
for which investigation, testing, monitoring,
containment, clean-up or remediation would be
required under any then applicable environmental
laws and/or regulations, (B) the Special Servicer
has received an Opinion of Counsel at the expense
of the Borrower, to the effect that the addition of
such collateral will not cause the Upper-Tier
REMIC, the Lower-Tier REMIC or the related Loan
REMIC to fail to qualify as a REMIC or cause a tax
to be imposed on the Trust Fund under the REMIC
Provisions and (C) the Special Servicer shall have
received written confirmation from each Rating
Agency that such changes will not result in the
qualification, downgrade or withdrawal to the
ratings then assigned to the Certificates;
(v) other than with respect to an amendment, modification
or waiver pursuant to Section 3.29(a), the Special
Servicer may not waive or reduce a Lock-out Period or
any Prepayment Premiums; and
(vi) other than with respect to an amendment, modification
or waiver pursuant to Section 3.29(a), the Special
Servicer may not affect the amount or timing of any
scheduled payments of principal, interest or other
amounts (including Prepayment Premiums) payable under
the Mortgage Loan;
provided that the Special Servicer shall not be required to oppose the
confirmation of a plan in any bankruptcy or similar proceeding involving a
Borrower if in its reasonable and good faith judgment such opposition would not
ultimately prevent the confirmation of such plan or one substantially similar.
(c) Subject to the limitations set forth in Section 3.29(b),
for any Mortgage Loan other than a Specially Serviced Mortgage Loan, the
Servicer shall be responsible for any request by a Borrower for the consent of
the mortgagee for a modification, waiver or amendment of any term with respect
to:
(i) Approving routine leasing activity (including any
subordination, standstill and attornment agreements)
with respect to leases for less than the lesser of
(a) 30,000 square feet and (b) 20% of the related
Mortgaged Property;
(ii) Approving a change of the Manager at the request of
the related Borrower; provided that the successor
Manager is not affiliated with the Borrower and is
a nationally or regionally recognized manager of
similar properties; and provided, further, that the
Servicer has received written confirmation from
each of S&P and Xxxxx'x that such change would not,
in and of itself, cause a downgrade, qualification
or withdrawal of the then-current ratings assigned
to the Certificates; provided, however, that if the
Stated Principal Balance of such Mortgage Loan or
group of cross-collateralized Mortgage Loans or
group of Mortgage Loans to affiliated Borrowers, as
the case may be, is less than the lesser of (x) (i)
2% for Xxxxx'x and (ii) 5% for S&P of the total
aggregate Stated Principal Balances of the Mortgage
Loans as of the day immediately prior to the date
of determination and (y) $30,000,000, and the
Mortgage Loan is not, at the time of determination,
one of the ten largest Mortgage Loans in the Trust
Fund, such written confirmation shall not be
required from any of the Rating Agencies;
(iii) Approving any waiver affecting the timing of receipt
of financial statements from any Borrower provided
that such financial statements are delivered no less
than quarterly and within 60 days of the end of the
calendar quarter;
(iv) Approving annual budgets for the related Mortgaged
Property, provided that no such budget (1) provides
for the payment of operating expenses in an amount
equal to more than 110% of the amounts budgeted
therefor for the prior year or (2) provides for the
payment of any material expenses to any affiliate
of the Borrower (other than the payment of a
management fee to any property manager if such
management fee is no more than the management fee
in effect on the Cut-off Date); and
(v) Subject to other restrictions in this Agreement
regarding Principal Prepayments, waiving any
provision of a Mortgage Loan requiring a specified
number of days' notice prior to a Principal
Prepayment.
(d) All modifications, waivers, amendments and other actions
entered into or taken in respect of the Mortgage Loans pursuant to this Section
3.29 shall be in writing. The Special Servicer shall notify the Servicer and the
Trustee, in writing, of any modification, waiver, amendment or other action
entered into or taken in respect of any Mortgage Loan pursuant to this Section
3.29, prior to the effective date thereof and the date as of which the related
modification, waiver or amendment is to take effect, and shall deliver to the
Trustee or the related Custodian for deposit in the related Mortgage File (with
a copy to the Servicer) an original counterpart of the agreement relating to
such modification, waiver, amendment or other action, promptly (and in any event
within 10 Business Days) following the execution thereof. Following the
execution of any modification, waiver or amendment agreed to by the Special
Servicer pursuant to clauses (a) and (b)(i) above, the Special Servicer shall
deliver to the Trustee (with a copy to the Servicer) an Officer's Certificate
setting forth in reasonable detail the basis of the determination made by it
pursuant to clause (a) and (b)(i) above.
(e) Any payment of interest which is deferred as described
herein shall not, for purposes, including, without limitation, of calculating
monthly distributions to Certificateholders, be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit or that such interest may actually be capitalized.
(f) The Servicer or the Special Servicer, as applicable, shall
be permitted to modify, waive or amend any term of a Mortgage Loan that is not
in default or as to which default is not reasonably foreseeable pursuant to
Section 3.29(b) or (c), only if such modification, waiver or amendment (a) (i)
would not be "significant" as such term is defined in Treasury Regulations
Section 1.860G-2(b), as determined by the Servicer or Special Servicer (and the
Servicer or Special Servicer may rely on an Opinion of Counsel (which shall be
an expense of the Person requesting such modification, waiver or amendment) in
making such determination), or (ii) occurs within three months of the Startup
Day, (b) would be in accordance with the Servicing Standard and (c) would not
adversely affect in any material respect the interest of any Certificateholder
not consenting thereto. The consent thereto of the Directing Holders or written
confirmation from each Rating Agency that such modification, waiver or amendment
will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates shall not be required, but
either shall be conclusive evidence that such modification, waiver or amendment
would not adversely affect in any material respect the interest of any
Certificateholder not consenting thereto.
SECTION 3.30. [Reserved].
SECTION 3.31. Servicing of Mortgage Loans Subject to
Co-Lender Agreements.
(a) With respect to each of the Lead Lender Split Notes, the
Servicer and Special Servicer will act as the lead servicer and special
servicer, respectively, with respect to the servicing of the related Split Loans
and will service such Split Loans pursuant to the provisions of this Agreement
and the Servicing Standard with a view toward the maximization of recovery on
both the Split Note included in the Trust Fund and related Other Note or Other
Notes. All amounts collected by the Servicer (or the Trustee, the Fiscal Agent
or Special Servicer, as applicable), with respect to any Split Note shall be
allocated in the manner prescribed in the related Co-Lender Agreement.
(b) With respect to each Lead Lender Split Note, the Servicer
(or the Trustee, Fiscal Agent or Special Servicer, as applicable), will hold the
Mortgaged Property, any insurance thereon (including, but not limited to,
property, casualty and residual value insurance) and any proceeds derived from
the Split Loan or the Mortgaged Property for the benefit of the holders of the
Split Note and the Other Note, and will allocate and pay any such proceeds
therefrom in the manner prescribed in the related Co-Lender Agreement.
(c) Notwithstanding any of the provisions of Section 4.06 to
the contrary, with respect to any P&I Advance that is made pursuant to Section
4.06 with respect to a Lead Lender Split Note or a Co-Lender Split Note that is
in the Trust Fund, such P&I Advance shall not exceed the amount due with respect
to such Split Note.
(d) Notwithstanding any of the provisions of Section 3.24 to
the contrary, with respect to any Property Advance that is made with respect to
a Mortgaged Property securing a Lead Lender Split Note, the Servicer (or the
Trustee or Fiscal Agent, to the extent required by this Agreement), shall
advance the entire amount of such Property Advance, subject to Section 3.24(c).
To the extent that a Property Advance and related Advance Interest Amounts have
been determined to be Nonrecoverable Advances and have not been reimbursed from
recoveries in respect of the related Mortgage Loan, the Servicer (or the Trustee
or Fiscal Agent, as applicable), shall enforce its rights under the related
Co-Lender Agreement against the Other Servicer to collect a pro rata share
(based on the outstanding principal amount of each note) of such Nonrecoverable
Advance. Any out-of pocket expenses incurred in pursuing such recovery shall be
paid out of the Collection Account. With respect to any Co-Lender Split Notes,
to the extent that the Co-Lender Agreement requires reimbursement of the Other
Servicer on behalf of the Lead Lender of such Split Loan of any Property
Advance, the Servicer shall reimburse such amount as a Property Advance
hereunder. To the extent that the pro rata portion of any Advance allocable to
the Other Note and advanced by the Lead Lender is not reimbursed by the related
Other Trust Fund, such amount shall be deemed to be a Nonrecoverable Advance and
shall be reimbursed pursuant to 3.06(ii).
(e) With respect to any Property Advance to be made hereunder
with respect to a Co-Lender Split Note, the determination by the Other Servicer
shall be binding upon the party or parties required to make such Property
Advance hereunder, both for determining whether or not such Property Advance
should be made and determining how such Property Advance should be reimbursed to
such Party.
(f) In the event that any Other Note is acquired by an Other
Trust Fund, such acquisition shall not result in a qualification, withdrawal or
downgrade of any rating of the Certificates. In the event the acquisition of an
Other Note by an Other Trust Fund does result in such a qualification,
withdrawal or downgrade, the Depositor shall repurchase the related Split Note
from the Trust Fund in the same manner as provided for under Section 2.03(e)
hereof.
(g) Copies of Certain Materials to Servicers of Other Notes.
The Servicer shall deliver or cause to be delivered to the Other Servicer the
following materials, in writing and on a computer readable medium reasonably
acceptable to the Other Servicer and the Servicer (and such reports may include
any reasonable disclaimers with respect to information provided by third parties
or with respect to assumptions required to be made in the preparation of such
reports as the Servicer deems appropriate):
(i) Copies of the following reports given to the Trustee:
(x) the Operating Statement Analysis (with operating
statements and rent rolls where provided by the
Borrower) and NOI Adjustment Worksheet under Section
3.13(d); and (y) a notice to the Trustee under
Section 3.19(b) with respect to the related Split
Note;
(ii) The information contained in the Delinquent Loan
Status Report with respect to the Split Notes;
(iii) Copies of the annual compliance statement delivered
pursuant to Section 3.14 and the Accountant's
Statement delivered pursuant to Section 3.15;
(iv) If requested, copies of all property inspection
reports for the Split Notes conducted pursuant to
Section 3.19(a); and
(v) Copies of the Watch List whenever a Split Note
appears thereon.
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, after the deemed distribution
pursuant to Section 4.01(i) the Trustee shall pay to itself from the
Distribution Account the Trustee Fee, and the remaining amounts held in the
Distribution Account shall be withdrawn (to the extent of Available Funds or, in
the case of clause (ii), Prepayment Premiums) and distributed in respect of the
Lower-Tier Regular Interests as follows:
(i) The amounts and timing of principal and interest
payments and Prepayment Interest Shortfall
allocations on each Lower-Tier REMIC Regular
Interest will be identical to such amounts and
timing on the corresponding Class of Related
Certificates for such Distribution Date, except
that, solely for this purpose, all calculations
with respect to the Related Lower-Tier Regular
Interests shall be made as though (x) the Class
A-1, Class A-2, Class A-3, Class A-4, Class B,
Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M-1 and
Class M-2 Pass-Through Rates were equal to the
Weighted Average Net Mortgage Pass-Through Rate,
(y) the Class X Notional Balance were zero at all
times, and (z) the Class Interest Distribution
Amount with respect to the Class X Certificates
shall be deemed to be distributed in respect of
each Class of Related Lower-Tier Regular Interests
in accordance with the portion of the Class
Interest Distribution Amount with respect to the
Class X Certificates represented by the Certificate
Balance thereof times 1/12 of the excess of the
Weighted Average Net Mortgage over the Pass-Through
Rate of the Related Certificates.
(ii) Prepayment Premiums shall be distributed in respect
of the Lower-Tier Regular Interests in accordance
with Section 4.01(c)(ii).
(iii) Realized Losses shall be allocated to, and shall
reduce the Certificate Balances of, each Class of
Lower-Tier Regular Interests without distribution
on any Distribution Date, to the extent that the
Certificate Balance of such Class exceeds the
Certificate Balance of the corresponding Class of
Related Certificates because of Realized Losses
allocated to such Class of Related Certificates.
Amounts recovered in respect of any amounts
previously written off as Realized Losses will be
distributed to each Class of Related Lower-Tier
Regular Interests, to the extent that amounts
recovered in respect of any amounts previously
written off as Realized Losses are distributed to
the corresponding Class of Related Certificates.
(iv) Any amounts remaining in the Distribution Account
after the distribution set forth above in this
Section 4.01(a)(i)-(iii) shall be distributed to the
Class LR Certificates.
(b) On each Distribution Date, amounts distributed on the
Lower-Tier Regular Interests pursuant to Section 4.01(a) shall be deposited in
the Upper-Tier Distribution Account, and, subject to the penultimate paragraph
of this Section 4.01(b), Holders of each Class of Certificates (other than the
Class LR Certificates) shall receive distributions from amounts on deposit in
the Upper-Tier Distribution Account in respect of interest and principal in the
amounts and in the order of priority set forth below:
(i) First, pro rata, in respect of interest, to the Class
X-0, Xxxxx X-0, Class A-3, Class A-4 and Class X
Certificates, up to an amount equal to the aggregate
Class Interest Distribution Amounts of such Classes
for such Distribution Date;
(ii) Second, pro rata, to the Class A-1, Class A-2, Class
A-3, Class A-4 and Class X Certificates, in respect
of interest, up to an amount equal to the aggregate
Class Interest Shortfalls of such Classes for such
Distribution Date;
(iii) Third, to the Class A-1 Certificates, in reduction of
the Certificate Balance thereof, an amount equal to
the Principal Distribution Amount until the
Certificate Balance thereof is reduced to zero;
(iv) Fourth, to the Class A-2 Certificates, in reduction
of the Certificate Balance thereof, an amount equal
to the Principal Distribution Amount less the portion
of the Principal Distribution Amount distributed
pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(v) Fifth, to the Class A-3 Certificates, in reduction of
the Certificate Balance thereof, an amount equal to
the Principal Distribution Amount less the portion of
the Principal Distribution Amount distributed to all
prior clauses, until the Certificate Balance thereof
is reduced to zero;
(vi) Sixth, to the Class A-4 Certificates, in reduction of
the Certificate Balance thereof, an amount equal to
the Principal Distribution Amount less the portion of
the Principal Distribution Amount distributed to all
prior clauses, until the Certificate Balance thereof
is reduced to zero;
(vii) Seventh, pro rata, to the Class A-1, Class A-2, Class
A-3 and Class A-4 Certificates, for the unreimbursed
amounts of Realized Losses, if any, an amount equal
to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class for such
Distribution Date;
(viii) Eighth, to the Class B Certificates, in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such
Distribution Date;
(ix) Ninth, to the Class B Certificates, in respect of
interest, up to an amount equal to the Class Interest
Shortfall of such Class for such Distribution Date;
(x) Tenth, to the Class B Certificates, in reduction of
the Certificate Balance thereof, an amount equal to
the Principal Distribution Amount less the portion of
the Principal Distribution Amount distributed
pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xi) Eleventh, to the Class B Certificates, for the
unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xii) Twelfth, to the Class C Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such
Distribution Date;
(xiii) Thirteenth, to the Class C Certificates in respect of
interest, up to an amount equal to the Class Interest
Shortfall of such Class for such Distribution Date;
(xiv) Fourteenth, to the Class C Certificates in reduction
of the Certificate Balance thereof, an amount equal
to the Principal Distribution Amount, less the
portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xv) Fifteenth, to the Class C Certificates, for the
unreimbursed amounts of Realized Losses, if any, up
to an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to
such Class;
(xvi) Sixteenth, to the Class D Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such
Distribution Date;
(xvii) Seventeenth, to the Class D Certificates in respect
of interest, up to an amount equal to the Class
Interest Shortfall of such Class for such
Distribution Date;
(xviii) Eighteenth, to the Class D Certificates, in reduction
of the Certificate Balance thereof, an amount equal
to the Principal Distribution Amount, less the
portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xix) Nineteenth, to the Class D Certificates, for the
unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xx) Twentieth, to the Class E Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such
Distribution Date;
(xxi) Twenty-first, to the Class E Certificates in respect
of interest, up to an amount equal to the Class
Interest Shortfall of such Class for such
Distribution Date;
(xxii) Twenty-second, to the Class E Certificates in
reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount,
less the portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xxiii) Twenty-third, to the Class E Certificates, for the
unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xxiv) Twenty-fourth, to the Class F Certificates in respect
of interest, up to an amount equal to the Class
Interest Distribution Amount of such Class for such
Distribution Date;
(xxv) Twenty-fifth, to the Class F Certificates in respect
of interest, up to an amount equal to the Class
Interest Shortfall of such Class for such
Distribution Date;
(xxvi) Twenty-sixth, to the Class F Certificates, in
reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount,
less the portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xxvii) Twenty-seventh, to the Class F Certificates, for the
unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xxviii) Twenty-eight, to the Class G Certificates in respect
of interest, up to an amount equal to the Class
Interest Distribution Amount of such Class for such
Distribution Date;
(xxix) Twenty-ninth, to the Class G Certificates in respect
of interest, up to an amount equal to the Class
Interest Shortfall of such Class for such
Distribution Date;
(xxx) Thirtieth, to the Class G Certificates, in reduction
of the Certificate Balance thereof, an amount equal
to the Principal Distribution Amount, less the
portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xxxi) Thirty-first, to the Class G Certificates, for the
unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xxxii) Thirty-second, to the Class H Certificates in respect
of interest, up to an amount equal to the Class
Interest Distribution Amount of such Class for such
Distribution Date;
(xxxiii) Thirty-third, to the Class H Certificates in respect
of interest, up to an amount equal to the Class
Interest Shortfall for such Class for such
Distribution Date;
(xxxiv) Thirty-fourth, to the Class H Certificates, in
reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount,
less the portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xxxv) Thirty-fifth, to the Class H Certificates, for the
unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xxxvi) Thirty-sixth, to the Class J Certificates in respect
of interest, up to an amount equal to the Class
Interest Distribution Amount of such Class for such
Distribution Date;
(xxxvii) Thirty-seventh, to the Class J Certificates in
respect of interest, up to an amount equal to the
Class Interest Shortfall of such Class for such
Distribution Date;
(xxxviii) Thirty-eighth, to the Class J Certificates, in
reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount,
less the portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xxxix) Thirty-ninth, to the Class J Certificates, for the
unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xl) Fortieth, to the Class K Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such
Distribution Date;
(x1i) Forty-first, to the Class K Certificates in respect
of interest, up to an amount equal to the Class
Interest Shortfall of such Class for such
Distribution Date;
(xlii) Forty-second, to the Class K Certificates, in
reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount,
less the portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xliii) Forty-third, to the Class K Certificates, for the
unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xliv) Forty-fourth, to the Class L Certificates in respect
of interest, up to an amount equal to the Class
Interest Distribution Amount of such Class for such
Distribution Date;
(x1v) Forty-fifth, to the Class L Certificates in respect
of interest, up to an amount equal to the Class
Interest Shortfall of such Class for such
Distribution Date;
(xlvi) Forty-sixth, to the Class L Certificates, in
reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount,
less the portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xlvii) Forty-seventh, to the Class L Certificates, for the
unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xlviii) Forty-eighth, pro rata, to the Class M-1 and Class
M-2 Certificates in respect of interest, up to an
amount equal to the aggregate Class Interest
Distribution Amounts of such Classes for such
Distribution Date (and, with respect to the Class M-2
Certificates, subject to section 3.28(c) of this
Agreement);
(xlix) Forty-ninth, pro rata, to the Class M-1 and Class M-2
Certificates in respect of interest, up to an amount
equal to the aggregate Class Interest Shortfall of
such Classes for such Distribution Date (and, with
respect to the Class M-2 Certificates, subject to
section 3.28(c) of this Agreement);
(l) Fiftieth, pro rata based on Certificate Balance, to
the Class M-1 and Class M-2 Certificates in
reduction of the Certificate Balances thereof, an
amount equal to the Principal Distribution Amount,
less the portion of the Principal Distribution
Amount distributed pursuant to all prior clauses,
until the Certificate Balance of each such Class is
reduced to zero (and, with respect to the Class M-2
Certificates, subject to Section 3.28(c) of this
Agreement);
(li) Fifty-first, pro rata, to the Class M-1 and Class M-2
Certificates, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses
previously allocated to such Classes (and, with
respect to the Class M-2 Certificates, subject to
Section 3.28(c) of this Agreement); and
(lii) Fifty-second, to the Class R Certificates.
On each Distribution Date occurring on or after the Crossover
Date, the Principal Distribution Amount will be distributed to the Class A-1,
Class A-2, Class A-3 and Class A-4 Certificates, pro rata, based on their
respective Certificate Balances, in reduction of their respective Certificate
Balances, until the Certificate Balance of each such Class is reduced to zero
and other amounts distributable to the Class A-1, Class A-2, and Class A-3,
Class A-4 and Class X Certificates shall be distributed pursuant to the priority
set forth in this Section 4.01(b).
All references to pro rata in the preceding clauses with
respect to interest and Class Interest Shortfalls shall mean pro rata based on
the amount distributable pursuant to such clauses, with respect to distribution
of principal other than for unreimbursed Realized Losses shall mean pro rata
based on Certificate Balance and with respect to distributions with respect to
unreimbursed Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
(c) (i) On each Distribution Date, following the
distribution from the Distribution Account in respect of the Lower-Tier Regular
Interests pursuant to Section 4.01(c)(ii), the Paying Agent shall make
distributions of any Prepayment Premiums (subject to any portion payable to the
Special Servicer as a portion of the Work Out Fee for any Mortgage Loan) with
respect to any Principal Prepayments received in the related Collection Period
from amounts deposited in the Upper-Tier Distribution Account pursuant to
Section 3.05(c) in the following amounts (as additional payments and not as
payments of interest and principal due thereunder) and order of priority, with
respect to the Certificates of each Class in each case to the extent remaining
amounts of Prepayment Premiums are available therefor:
(I) to the extent that such Prepayment Premium
is paid with respect to a Mortgage Loan
that is not a Premium Loan, then the
amount of such Prepayment Premium will be
distributed on the related Distribution
Date to the Holders of the Class A-1,
Class A-2, Class A-3, Class A-4, Class B,
Class C, Class D and Class E Certificates
in an amount up to, in the case of each
such Class, the product of (a) such
Prepayment Premium, (b) the Discount Rate
Fraction for such Class and (c) the
Principal Allocation Fraction of such
Class. The "Discount Rate Fraction" for
any such Class of Certificates is equal to
a fraction (not greater than 1.0 or less
than zero) the numerator of which is equal
to the excess, if any, of (x) the
Pass-Through Rate for such Class of
Certificates over (y) the applicable
Prepayment Premium Discount Rate (as
defined below), and the denominator of
which is equal to the excess, if any, of
(x) the Net Mortgage Pass-Through Rate of
such Mortgage Loan over (y) the applicable
Prepayment Premium Discount Rate. With
respect to any Distribution Date and each
such Class of Certificates, the "Principal
Allocation Fraction" is a fraction, the
numerator of which is the portion, if any,
of the Principal Distribution Amount
allocated to such Class of Certificates
for such Distribution Date, and the
denominator of which is the entire
Principal Distribution Amount for such
Distribution Date. The portion of the
Prepayment Premium remaining, if any,
after the payment of the amount calculated
as described above will be distributed to
the holders of the Class X Certificates.
The "Prepayment Premium Discount Rate"
means the yield (compounded monthly) on
the U.S. Treasury issue (primary issue)
with a maturity date closest to the
Assumed Final Distribution Date of the
subject Class. 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
Assumed Final Distribution Date, the issue
with the earliest maturity date will be
utilized;
(II) to the extent that such Prepayment Premium
is paid with respect to a Premium Loan
that has a Base Interest Rate, net of the
Administrative Fee Rate (the "Net Base
Rate") equal to or lower than the
Pass-Through Rate in effect on such
Distribution Date for the Class of Public
Certificates that received distributions
in reduction of its Certificate Balance on
such Distribution Date (the "Reference
Pass-Through Rate"), then the amount of
such Prepayment Premium will be
distributed to the Class X Certificates;
provided that if more than one Class of
Public Certificates receives distributions
in reduction of Certificate Balance on
such Distribution Date, the Reference
Pass-Through Rate will be equal to the
weighted average of the Pass-Through Rates
for such Classes for such Distribution
Date (weighted on the basis of the
respective Certificate Balances thereof
outstanding immediately prior to such
Distribution Date); and
(III) to the extent that such Prepayment Premium
is paid with respect to a Premium Loan
that has a Net Base Rate higher than the
Reference Pass-Through Rate for such
Distribution Date, then the amount of such
Prepayment Premium will be allocated
between the Class X Certificates and the
Class or Classes of Public Certificates
that received distributions in reduction
of Certificate Balance on such
Distribution Date in the following
proportions: to the Class X Certificates a
fraction of such Prepayment Premium the
numerator of which is the excess of the
Net Mortgage Pass-Through Rate of the
related Mortgage Loan over the Net Base
Rate and the denominator of which is the
excess of the Net Mortgage Pass-Through
Rate of the related Mortgage Loan over the
Reference Pass-Through Rate; and the
balance to the Class or Classes of Public
Certificates receiving distributions in
reduction of Certificate Balance on such
Distribution Date, pro rata in accordance
with the amounts by which their
Certificate Balances were so reduced.
In all clauses above, Prepayment Premiums will only be
distributed to any particular Class on a Distribution Date (i) if the respective
Certificate Balance or Class X Notional Balance of such Class is greater than
zero on the last Business Day of the Interest Accrual Period ending immediately
prior to such Distribution Date and (ii) if the amount computed pursuant to the
relevant clause above is greater than zero for such Class. Any Prepayment
Premiums remaining following the distributions described in the preceding
clauses (I) through (III) shall be distributed to holders of the Class M-2
Certificates regardless of whether the Certificate Balance thereof has been
reduced to zero (subject to Section 3.28(c) of this Agreement).
Notwithstanding the foregoing, Prepayment Premiums shall be
distributed on any Distribution Date only to the extent they (i) are received in
respect of the Mortgage Loans in the related Collection Period and (ii) are not
otherwise payable to the Special Servicer as a part of the Work Out Fee or the
Liquidation Fee.
(ii) On each Distribution Date, prior to the
distributions to the Certificates from the Upper-Tier Distribution Account
pursuant to Section 4.01(c)(i), the Lower-Tier Regular Interests shall receive
distributions in respect of Prepayment Premiums in proportion to their
Certificate Balances.
(d) The Certificate Balance of each Class of Regular
Certificates (other than the Class X Certificates) will be reduced without
distribution on any Distribution Date as a write-off to the extent of any
Realized Losses allocated to such Class with respect to such date. The Realized
Loss for any Distribution Date will be allocated to Classes of Regular
Certificates (other than the Class X Certificates) in the following order, in
each case until the Certificate Balance of such Class is reduced to zero: first,
to the Class M-1 and Class M-2 Certificates, pro rata, based on their respective
Certificate Balances; second, to the Class L Certificates; third, to the Class K
Certificates; fourth, to the Class J Certificates; fifth, to the Class H
Certificates; sixth, to the Class G Certificates; seventh, to the Class F
Certificates; eighth, to the Class E Certificates; ninth, to the Class D
Certificates; tenth, to the Class C Certificates; eleventh, to the Class B
Certificates; and twelfth, to the Class A-1, Class A-2, Class A-3 and Class A-4
Certificates, pro rata, based on their respective Certificate Balances.
Realized Losses and such other amounts described above which
are applied to each Class of Regular Certificates (other than the Class X
Certificates) will be allocated to reduce the Certificate Balance of the Class
of Related Lower-Tier Regular Interests and the related Loan REMIC Regular
Interest and of the principal balance of the related Loan REMIC Regular
Interest.
(e) All amounts distributable to a Class of Certificates
pursuant to this Section 4.01 on each Distribution Date shall be allocated pro
rata among the outstanding Certificates in each such Class based on their
respective Percentage Interests. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date by check mailed by first Class mail to the
address set forth therefor in the Certificate Register or, provided that such
Holder shall have provided the Paying Agent with wire instructions in writing at
least five Business Days prior to the related Record Date, by wire transfer of
immediately available funds to the account of such Holder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee.
(f) Except as otherwise provided in Section 9.01 with respect
to an Anticipated Termination Date, the Trustee shall, no later than the
fifteenth day of the month in the month preceding the month in which the final
distribution with respect to any Class of Certificates is expected to be made,
mail to each Holder of such Class of Certificates, on such date a notice to the
effect that:
(A) the Trustee reasonably expects based upon information
previously provided to it 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 Trustee therein specified, and
(B) if such final distribution is made on such
Distribution Date, no interest shall accrue on such
Certificates from and after such Distribution Date;
provided, however, that the Residual Interests shall remain outstanding until
there is no other Class of Regular Certificates, Lower-Tier Regular Interests or
related Loan REMIC Regular Interests outstanding and the Class M-2 Certificates
shall be deemed to be outstanding so long as there are any Mortgage Loans
outstanding that provide for payments of Prepayment Premiums in connection with
voluntary or involuntary prepayments.
Any funds not distributed to any Holder or Holders of such
Classes of Certificates on such Distribution Date because of the failure of such
Holder or Holders to tender their Certificates shall, on such date, be set aside
and held in trust for the benefit 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 Trustee shall mail a second
notice to the remaining non-tendering Holders to surrender their Certificates
for cancellation to receive the final distribution with respect thereto. If
within one year after the second notice not all of such Certificates shall have
been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering Holders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Holders shall be paid out of such
funds. If within two years after the second notice any such Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor Trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Class R Certificateholders. No interest shall accrue or
be payable to any Holder on any amount held in trust hereunder or by the Trustee
as a result of such Holder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(f). Any such amounts
transferred to the Trustee may be invested in Permitted Investments and all
income and gain realized from investment of such funds shall be for the benefit
of the Trustee.
(g) [Reserved].
(h) The Certificate Balances of the Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M-1 and
Class M-2 Certificates shall be notionally reduced on any Distribution Date to
the extent of any Appraisal Reduction Amounts with respect to such Distribution
Date. Any such reductions shall be applied notionally, first, to the Class M-1
and Class M-2 Certificates, second, to the Class L Certificates, third, to the
Class K Certificates, fourth, to the Class J Certificates, fifth, to the Class H
Certificates, sixth, to the Class G Certificates, seventh, to the Class F
Certificates, eighth, to the Class E Certificates, ninth, to the Class D
Certificates, tenth, to the Class C Certificates, and finally, to the Class B
Certificates (provided in each case that no Certificate Balance in respect of
any such Class shall be notionally reduced below zero). Once a Final Recovery
Determination has been made with respect to any Mortgage Loan, any applicable
Appraisal Reduction Amount applied to the Certificates shall be reversed in its
entirety.
(i) All payments made on the Mortgage Loans (or subsequently
acquired REO Property) which are assets of the Loan REMICs shall be deemed to be
paid to the Lower-Tier REMIC before payments are made to the holders of the
Lower-Tier Regular Interests pursuant to Section 4.01(a), and shall be treated
as principal, interest or a distributive share of Prepayment Premiums, as the
case may be, based on these chracterizations with respect to the related
Mortgage Loan (or REO Property), except where expressly noted and, in addition,
any payment of principal on a Mortgage Loan in a Loan REMIC shall reduce the
principal balance of the related Loan REMIC Regular Interest.
(j) On each Distribution Date, the Trustee shall distribute
(i) to the Holders of the Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M-1 and Class M-2 Certificates, pro rata, in accordance with their initial
Certificate Balances, all amounts on deposit in the Excess Interest Distribution
Account (and, with respect to the Class M-2 Certificates, subject to Section
3.28(c) of this Agreement); and (ii) to the Holders of the Class X Certificates,
all amounts on deposit in the Repurchase Price Return of Premium Distribution
Account.
SECTION 4.02. Statements to Certificateholders;
Reports by Trustee; Other Information Available
to the Holders and Others.
(a) On each Distribution Date, based upon reports prepared by
the Servicer and Special Servicer relating to such Distribution Date, and only
to the extent such information is provided to the Trustee by the Servicer or
Special Servicer (except that the information in (xvi) will be based on notice
from the Rating Agencies), the Trustee shall prepare and forward by first class
mail to each Certificateholder, each prospective investor in a Certificate (upon
request), with copies to the Depositor (and its attorneys, Cadwalader,
Xxxxxxxxxx & Xxxx, Attn.: Xxxx X. Xxxxx), the Servicer, the Special Servicer,
each Underwriter, each Rating Agency (and, in the case of the Split Notes, the
Other Servicer, with respect to information related to such Split Note) a
written report (a "Distribution Date Statement") setting forth the following
information:
(i) the aggregate amount of the distribution to be made
on such Distribution Date to the Holders of each
Class of Certificates applied to reduce the
respective Certificate Balance thereof;
(ii) the aggregate amount of the distribution to be made
on such Distribution Date to the Holders of each
Class of Certificates allocable to (A) the Interest
Accrual Amount and/or (B) Prepayment Premiums;
(iii) the aggregate Certificate Balance or aggregate
Class X Notional Balance, as the case may be, of
each Class of Certificates, before and after giving
effect to the distributions and allocations of
Realized Losses made on such Distribution Date,
separately identifying any reduction in the
aggregate Certificate Balance (or, if applicable,
the aggregate Class X Notional Balance) of each
such Class due to Realized Losses and/or additional
Trust Fund expenses;
(iv) the Pass-Through Rate, if any, for each Class of
Certificates applicable to such Distribution Date;
(v) the number of outstanding Mortgage Loans and the
aggregate unpaid principal balance of the Mortgage
Loans at the close of business on the related Due
Date;
(vi) the number and aggregate unpaid principal balance of
Mortgage Loans (A) delinquent 30-59 days, (B)
delinquent 60-89 days, (C) delinquent 90 days or
more, (D) that are Specially Serviced Mortgage Loans
that are not delinquent, or (E) as to which
foreclosure proceedings have been commenced;
(vii) with respect to any REO Mortgage Loan as to which the
related Mortgaged Property became an REO Property
during the preceding calendar month, the Stated
Principal Balance and the unpaid principal balance of
such Mortgage Loan as of the date it became an REO
Mortgage Loan;
(viii) as to any Mortgage Loan repurchased by the Mortgage
Loan Seller or otherwise liquidated or disposed of
during the related Collection Period, (A) the Loan
Number of the related Mortgage Loan, (B) the amount
of proceeds of any repurchase of a Mortgage Loan,
Liquidation Proceeds and/or other amounts, if any,
received thereon during the related Collection
Period and the portion thereof included in the
Available Funds for such Distribution Date, and (C)
the date of Final Recovery Determination;
(ix) with respect to any REO Property included in the
Trust Fund at the close of business on the related
Due Date (A) the Loan Number of the related
Mortgage Loan, (B) the value of such REO Property
based on the most recent appraisal or valuation,
and (C) the aggregate amount of Net Income and
other revenues collected by the Special Servicer
with respect to such REO Property during the
related Collection Period and the portion thereof
included in the Available Funds for such
Distribution Date;
(x) with respect to any REO Property sold or otherwise
disposed of during the related Collection Period
and for which a Final Recovery Determination has
been made, (A) the Loan Number of the related
Mortgage Loan, (B) the amount of sale proceeds and
other amounts, if any, received in respect of such
REO Property during the related Collection Period
and the portion thereof included in the Available
Funds for such Distribution Date and (C) the date
of the Final Recovery Determination;
(xi) the aggregate amount of Principal Prepayments (other
than Liquidation Proceeds and Insurance Proceeds)
made during the related Collection Period and any
Prepayment Interest Shortfall in excess of Servicer
Prepayment Interest Shortfall for such
Distribution Date;
(xii) the amount of Property Advances and P&I Advances
outstanding at the close of business on the related
Due Date (net of reimbursed Advances) which have been
made by the Servicer, the Trustee or the Fiscal
Agent;
(xiii) the aggregate amount of Servicing Compensation,
Special Servicing Compensation and any other
compensation retained by or paid to the Servicer and
the Special Servicer during the related
Collection Period;
(xiv) the amount of any Appraisal Reduction Amounts
allocated during the related Collection Period on a
loan-by-loan basis; the total Appraisal Reduction
Amounts allocated during the related Collection
Period; and the total Appraisal Reduction Amounts as
of such Distribution Date on a loan-by-loan basis;
(xv) the amount of losses incurred with respect to the
Mortgage Loans, Trust Fund expenses, Class Interest
Shortfalls, Prepayment Interest Shortfalls, if any,
during the related Collection Period and in the
aggregate for all prior Collection Periods (except to
the extent reimbursed or paid); and
(xvi) the original and then-current ratings of the
Certificates, based upon all notifications received
by the Trustee from the Rating Agencies with respect
to any change, withdrawal, downgrade or qualification
of the ratings of the Certificates.
In the case of information furnished pursuant to subclauses
(i), (ii) and (iii) above, the amounts shall be expressed as a dollar amount in
the aggregate for all Certificates of each applicable Class and per $1,000 of
original Certificate Balance or Class X Notional Balance, as the case may be.
On each Distribution Date, the Trustee shall forward to each
Holder of a Class R or Class LR Certificate or a Loan REMIC Residual Interest a
copy of the reports forwarded to the other Certificateholders on such
Distribution Date and a statement setting forth the amounts, if any, actually
distributed with respect to the Class R or Class LR Certificates or Loan REMIC
Residual Interest on such Distribution Date. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that it provided
substantially comparable information pursuant to any requirements of the Code as
from time to time in force.
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 clauses (i) and (ii) of Section 4.02(a) 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 held by Persons other than
Holders exempted from the reporting requirements 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.
(b) On each Distribution Date, the Trustee shall deliver or
cause to be delivered by first class mail (or by other means of equal or greater
expediency) to each Certificateholder, each prospective investor in a
Certificate (upon request), the Depositor, the Servicer, the Special Servicer,
each Underwriter and each Rating Agency a report containing information
regarding the Mortgage Loans as of the end of the related Collection Period
(after giving effect to Principal Prepayments and other collections of principal
required to be distributed on such Distribution Date), which report shall
contain substantially the categories of information regarding the Mortgage Loans
set forth in the Prospectus under the caption "Description of the Mortgage
Pool--Additional Mortgage Loan Information" (calculated, where applicable, on
the basis of the most recent relevant information provided by the Borrowers to
the Servicer or the Special Servicer, as the case may be, and by the Servicer or
the Special Servicer, as the case may be, to the Trustee), which information
shall be presented in tabular format substantially similar to the format
utilized under such caption in the Prospectus and shall also include a
loan-by-loan listing (in descending balance order) showing loan number, property
type, location, unpaid principal balance, Mortgage Rate, paid through date,
maturity date, net interest portion of the Monthly Payment, principal portion of
the Monthly Payment and any Prepayment Premiums received. Such report shall be
made available electronically; provided, however, that the Trustee will provide
Certificateholders with a written copy of such report upon written request.
(c) On each Distribution Date, the Trustee shall deliver or
cause to be delivered by first class mail (or by other means of equal or greater
expediency) to each Certificateholder, each prospective investor in a
Certificate (upon request), the Depositor, each Underwriter and each Rating
Agency a copy of the Comparative Financial Status Report, the Delinquent Loan
Status Report, the Historical Loss Estimate Report, the Historical Loan
Modification Report, the REO Status Report, a Watch List, a Loan Payoff
Notification Report and a Premium Loan Report provided by the Servicer to the
Trustee pursuant to Section 3.13(c) and 3.13(e) on the related Servicer
Remittance Date. Such information shall also be made available on the Trustee's
website at xxx.xxxxxx.xxx. The information that pertains to Specially Serviced
Mortgage Loans and REO Properties reflected in such reports shall be based
solely upon the reports delivered by the Special Servicer to the Servicer at
least one Business Day prior to the related Servicer Remittance Date. Such
reports shall be made available electronically; provided, however, that the
Trustee will provide Certificateholders with a written copy of such reports upon
written request. Absent manifest error, (i) none of the Servicer, the Special
Servicer, the Trustee 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
Servicer, the Special Servicer, the Trustee, as applicable, (ii) the Trustee
shall not be responsible for the accuracy or completeness of any information
supplied to it by the Servicer or Special Servicer that is included in any
reports, statements, materials or information prepared or provided by the
Servicer or Special Servicer, as applicable, and (iii) the Trustee shall be
entitled to conclusively rely upon the Servicer's reports, and the Special
Servicer's reports without any duty or obligation to recompute, verify or
re-evaluate any of the amounts or other information stated therein; and (iv) the
Servicer shall not be responsible for the accuracy or completeness of any
information supplied to it by the Special Servicer that is included in any
reports, statements, materials or information prepared or provided by the
Special Servicer.
The information contained in the reports in the preceding
paragraph of this Section 4.02(c) shall be made available to the Trustee
electronically by the Servicer in the form of the standard CSSA Reports, and the
Trustee will make such reports available electronically in such form to
Certificateholders using the media mutually agreed upon by the Trustee, the
Underwriter and the Depositor; provided, however, that the Trustee will continue
to provide Certificateholders with a written copy of such reports upon request
in the manner described in such preceding paragraph.
The Servicer may make available each month via the Servicer's
internet website, initially located at xxx.xxxxxxxxxx.xxx, to any interested
party, the Delinquent Loan Status Report, the Historical Loan Modification
Report, the Historical Loss Estimate Report, the REO Status Report, the Loan
Payoff Notification Report, the Premium Loan Report, the Watch List, the
Comparative Financial Status Report, the CSSA property file, the CSSA loan setup
file and the CSSA Loan File and, as a convenience for interested parties (and
not in furtherance of the distribution thereof under the securities laws) the
Prospectus and the Prospectus Supplement.
The Trustee shall deliver a copy of each Operating Statement
Analysis report and NOI Adjustment Worksheet that it receives from the Servicer
to the Depositor, each Underwriter and each Rating Agency promptly after its
receipt thereof. Upon request, the Trustee shall also make such reports
available to the Certificateholders and the Special Servicer. Upon request, the
Trustee shall also make available any NOI Adjustment Worksheet for a Mortgaged
Property or REO Property in the possession of the Trustee to any
Certificateholder or any prospective investor in the Certificates.
(d) The Trustee shall make available at its offices, during
normal business hours, upon not less than two Business Days' prior notice, for
review by any Certificateholder, any prospective investor in a Certificate, the
Depositor, the Servicer, the Special Servicer, any Rating Agency and any other
Person to whom the Depositor believes such disclosure is appropriate, originals
or copies of documents relating to the Mortgage Loans and any related REO
Properties to the extent in its possession, including, without limitation, the
following items (except to the extent prohibited by applicable law or to the
extent it is aware that such disclosure is prohibited by the Mortgage File
provided that the Trustee shall have no obligation to review the Mortgage File
for such prohibition): (i) this Agreement and any amendments thereto; (ii) all
Distribution Date Statements delivered to the Certificateholders since the
Closing Date; (iii) all annual Officers' Certificates and all accountants'
reports delivered by the Servicer or Special Servicer to the Trustee since the
Closing Date regarding compliance with the relevant agreements; (iv) the most
recent property inspection report prepared by or on behalf of the Servicer or
the Special Servicer in respect of each Mortgaged Property and REO Property; (v)
the most recent annual (or more frequent, if available) operating statements,
rent rolls (to the extent such rent rolls have been made available by the
related Borrower) and retail sales information, if any, collected by or on
behalf of the Servicer or the Special Servicer in respect to each Mortgaged
Property; (vi) any and all modifications, waivers and amendments of the terms of
a Mortgage Loan entered into by the Servicer and/or the Special Servicer; (vii)
any and all Officers' Certificates and other evidence delivered to or by the
Trustee to support the Servicer's, the Trustee's or the Fiscal Agent's, as the
case may be, determination that any Advance, if made, would be a Nonrecoverable
Advance; and (viii) any other materials not otherwise required to be provided
hereunder to a requesting Certificateholder in situations where such requesting
Certificateholder declined to enter into a confidentiality agreement with the
Servicer. Copies of any and all of the foregoing items will be available from
the Trustee upon request. The Trustee will be permitted to require payment by
the requesting party of a sum sufficient to cover the reasonable costs and
expenses of making such information available and providing any copies thereof.
The Trustee's obligation under this Section 4.02(d) to make available any
document is subject to the Trustee's receipt of such document.
The Trustee shall provide access to the information in the
Distribution Date Statements referred to in Section 4.02(a) telephonically
through the Trustee's ASAP System, electronically through the Trustee's website
or bulletin board service or by such other mechanism as the Trustee may have in
place from time to time.
(e) On or within two Business Days following each Distribution
Date, the Trustee shall prepare and furnish to each Financial Market Publisher
and each Underwriter, using the format and media mutually agreed upon by the
Trustee, each Financial Market Publisher, each Underwriter and the Depositor,
the following information regarding each Mortgage Loan and any other information
reasonably requested by each Underwriter and available to the Trustee:
(i) the Loan Number;
(ii) the Mortgage Rate; and
(iii) the principal balance as of such
Distribution Date.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by this Section 4.02 to the extent it receives the
necessary underlying information from the Servicer, or the Special Servicer 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, the Servicer or the
Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Borrower and the failure of the Trustee, the
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
SECTION 4.03. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the
Paying Agent shall comply with all federal withholding requirements with respect
to 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 any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Holder that is non-U.S. Person that has
furnished or caused to be furnished (i) an effective Form W-8 or Form W-9 or an
acceptable substitute form or a successor form and who is not a "10-percent
shareholder" within the meaning of Code Section 871(h)(3)(B) or a "controlled
foreign corporation" described in Code Section 881(c)(3)(C) with respect to the
Trust Fund or the Depositor, or (ii) an effective Form 4224 or an acceptable
substitute form or a successor form. In the event the Paying Agent or its agent
withholds 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
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
SECTION 4.04. REMIC Compliance.
(a) The parties intend that each of the Upper-Tier REMIC and
the Lower-Tier REMIC shall constitute, and that the affairs of each of the
Upper-Tier REMIC and the Lower-Tier REMIC shall be conducted so as to qualify it
as, a "real estate mortgage investment conduit" as defined in, and in accordance
with, the REMIC Provisions, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the Trustee
shall, to the extent permitted by applicable law, act as agent, and is hereby
appointed to act as agent, of each of the Upper-Tier REMIC and the Lower-Tier
REMIC and shall on behalf of each of the Upper-Tier REMIC and the Lower-Tier
REMIC: (i) prepare, sign and file, or cause to be prepared and filed, all
required Tax Returns for each of the Upper-Tier REMIC and the Lower-Tier REMIC,
using a calendar year as the taxable year for each of the Upper-Tier REMIC and
the Lower-Tier REMIC when and as required by the REMIC Provisions and other
applicable federal, state or local income tax laws; (ii) make an election, on
behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC, to be treated
as a REMIC on Form 1066 for its first taxable year, in accordance with the REMIC
Provisions; (iii) prepare and forward, or cause to be prepared and forwarded, to
the Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions of the Code and Section
4.07; (iv) if the filing or distribution of any documents of an administrative
nature not addressed in clauses (i) through (iii) of this Section 4.04(a) is
then required by the REMIC Provisions in order to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC or is otherwise required by
the Code, prepare, sign and file or distribute, or cause to be prepared and
signed and filed or distributed, such documents with or to such Persons when and
as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within thirty days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title and address of the Person
that the Holders of the Certificates may contact for tax information relating
thereto (and the Trustee shall act as the representative of each of the
Upper-Tier REMIC and the Lower-Tier REMIC for this purpose), together with such
additional information as may be required by such Form, and shall update such
information at the time or times and in the manner required by the Code (and the
Depositor agrees within 10 Business Days of the Closing Date to provide any
information reasonably requested by the Servicer, the Special Servicer or the
Trustee and necessary to make such filing); and (vi) maintain such records
relating to each of the Upper-Tier REMIC and the Lower-Tier REMIC as may be
necessary to prepare the foregoing returns, schedules, statements or
information, such records, for federal income tax purposes, to be maintained on
a calendar year and on an accrual basis. The Holder of the largest Percentage
Interest in the Class R or Class LR Certificates shall be the tax matters person
of the Upper-Tier REMIC or the Lower-Tier REMIC, respectively, pursuant to
Treasury Regulations Section 1.860F-4(d). If more than one Holder should hold an
equal Percentage Interest in the Class R or Class LR Certificates larger than
that held by any other Holder, the first such Holder to have acquired such Class
R or Class LR Certificates shall be such tax matters person. The Trustee shall
act as attorney-in-fact and agent for the tax matters person of each of the
Upper-Tier REMIC and Lower-Tier REMIC, and each Holder of a Percentage Interest
in the Class R or Class LR Certificates, by acceptance hereof, is deemed to have
consented to the Trustee's appointment in such capacity and agrees to execute
any documents required to give effect thereto, and any fees and expenses
incurred by the Trustee in connection with any audit or administrative or
judicial proceeding shall be paid by the Trust Fund. The Trustee shall not
intentionally take any action or intentionally omit to take any action if, in
taking or omitting to take such action, the Trustee knows that such action or
omission (as the case may be) would cause the termination of the REMIC status of
the Upper-Tier REMIC or the Lower-Tier REMIC or the imposition of tax on the
Upper-Tier REMIC or the Lower-Tier REMIC (other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement).
Notwithstanding any provision of this paragraph to the contrary, the Trustee
shall not be required to take any action that the Trustee in good faith believes
to be inconsistent with any other provision of this Agreement, nor shall the
Trustee be deemed in violation of this paragraph if it takes any action
expressly required or authorized by any other provision of this Agreement, and
the Trustee shall have no responsibility or liability with respect to any act or
omission of the Depositor, the Servicer or the Special Servicer which does not
enable the Trustee to comply with any of clauses (i) through (vi) of the fifth
preceding sentence or which results in any action contemplated by clauses (i) or
(ii) of the next succeeding sentence. In this regard the Trustee shall (i)
exercise reasonable care not to allow the occurrence of any "prohibited
transactions" within the meaning of Code Section 860F(a), unless the party
seeking such action shall have delivered to the Trustee an Opinion of Counsel
(at such party's expense) that such occurrence would not (A) result in a taxable
gain, (B) otherwise subject the Upper-Tier REMIC or Lower-Tier REMIC to tax
(other than a tax at the highest marginal corporate tax rate on net income from
foreclosure property), or (C) cause either the Upper-Tier REMIC or Lower-Tier
REMIC to fail to qualify as a REMIC; and (ii) exercise reasonable care not to
allow the Trust Fund to receive income from the performance of services or from
assets not permitted under the REMIC Provisions to be held by a REMIC (provided,
however, that the receipt of any income expressly permitted or contemplated by
the terms of this Agreement shall not be deemed to violate this clause). None of
the Servicer, the Special Servicer and the Depositor shall be responsible or
liable (except in connection with any act or omission referred to in the two
preceding sentences) for any failure by the Trustee to comply with the
provisions of this Section 4.04. The Depositor, the Servicer and the Special
Servicer shall cooperate in a timely manner with the Trustee in supplying any
information within the Depositor's, the Servicer's or the Special Servicer's
control (other than any confidential information) that is reasonably necessary
to enable the Trustee to perform its duties under this Section 4.04.
(b) The Trustee shall administer each of the Loan REMICs in
accordance with the respective Loan REMIC Declarations and the REMIC Provisions
and shall comply with and perform all federal and, if applicable, state and
local income tax return and information reporting requirements with respect to
such Loan REMICs in the same manner as specified for the Trust REMICs in Section
4.04(a). Each of the DDRA Loan, the Atlanta Marriott Loan and the Overland MHP
Loan shall be serviced and administered in accordance with the provisions of
Article III hereof and the related Loan REMIC Declaration. The Trustee shall
maintain separate accounting with respect to each of the Loan REMICs sufficient
(i) to comply with such return and information reporting requirements, including
quarterly and annual reporting on Schedule Q to Form 1066 to the Depositor or
its assignee with respect to the Loan REMIC Residual Interests, (ii) to account
for the Loan REMIC Regular Interests as assets of the Lower-Tier REMIC, (iii) to
pay or cause to be paid any federal, state or local income tax attributable to a
Loan REMIC from payments received on or with respect to the related Mortgage
Loan, and (iv) to cause any payments on the related Mortgage Loan in excess
amounts distributable in respect of the related Loan REMIC Regular Interests to
be distributed in respect of the related Loan REMIC Residual Interests.
(c) The following assumptions are to be used for purposes of
determining the anticipated payments of principal and interest for calculating
the original yield to maturity and original issue discount with respect to the
Regular Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans will prepay in accordance with
the Prepayment Assumption; (ii) none of the Servicer, the Depositor and the
Class LR Certificateholders will exercise the right described in Section 9.01 of
this Agreement to cause early termination of the Trust Fund; and (iii) no
Mortgage Loan is repurchased by the Mortgage Loan Seller, the Depositor or a
Mortgage Loan Seller pursuant to Article II hereof.
SECTION 4.05. Imposition of Tax on the Trust Fund.
In the event that any tax, including interest, penalties or
assessments, additional amounts or additions to tax, is imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, or any Loan REMIC such tax shall be
charged against amounts otherwise distributable to the Holders of the
Certificates; provided, that any taxes imposed on any net income from
foreclosure property pursuant to Code Section 860G(d) or any similar tax imposed
by a state or local jurisdiction shall instead be treated as an expense of the
related REO Property in determining Net REO Proceeds with respect to the REO
Property (and until such taxes are paid, the Special Servicer from time to time
shall withdraw from the REO Account and transfer to the Trustee amounts
reasonably determined by the Trustee to be necessary to pay such taxes, which
the Trustee shall maintain in a separate, non-interest-bearing account, and the
Trustee shall deposit in the Collection Account the excess determined by the
Trustee from time to time of the amount in such account over the amount
necessary to pay such taxes) and shall be paid therefrom; provided that any such
tax imposed on net income from foreclosure property that exceeds the amount in
any such reserve shall be retained from Available Funds as provided in Section
3.06(viii) and the next sentence. Except as provided in the preceding sentence,
the Trustee is hereby authorized to and shall retain or cause to be retained
from Available Funds sufficient funds to pay or provide for the payment of, and
to actually pay, such tax as is legally owed by the Upper-Tier REMIC, the
Lower-Tier REMIC or any Loan REMIC (but such authorization shall not prevent the
Trustee from contesting, at the expense of the Trust Fund, any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The Trustee is hereby authorized
to and shall segregate or cause to be segregated, into a separate non-interest
bearing account, (i) the net income from any "prohibited transaction" under Code
Section 860F(a) or (ii) the amount of any contribution to the Upper-Tier REMIC,
the Lower-Tier REMIC or any Loan REMIC after the Startup Day that is subject to
tax under Code Section 860G(d) and use such income or amount, to the extent
necessary, to pay such tax (and return the balance thereof, if any, to the
Collection Account or the Upper-Tier Distribution Account, as the case may be).
To the extent that any such tax is paid to the IRS, the Trustee shall retain an
equal amount from future amounts otherwise distributable to the Holders of the
Class R or the Class LR Certificates or a Loan REMIC Residual Interest, as the
case may be, and shall distribute such retained amounts to the Holders of
Regular Certificates, Lower-Tier Regular Interests or Loan REMIC Regular
Interest, as applicable, until they are fully reimbursed and then to the Holders
of the Class R Certificates, the Class LR Certificates or Loan REMIC Residual
Interest, as applicable. None of the Servicer, the Special Servicer or the
Trustee shall be responsible for any taxes imposed on the Upper-Tier REMIC,
Lower-Tier REMIC or Loan REMICs except to the extent such tax is attributable to
a breach of a representation or warranty of the Servicer, the Special Servicer
or the Trustee or an act or omission of the Servicer, the Special Servicer or
the Trustee in contravention of this Agreement in both cases, provided, further,
that such breach, act or omission could result in liability under Section 6.03,
in the case of the Servicer or Section 4.04 or 8.01, in the case of the Trustee.
Notwithstanding anything in this Agreement to the contrary, in each such case,
the Servicer or the Special Servicer shall not be responsible for Trustee's
breaches, acts or omissions, and the Trustee shall not be responsible for the
breaches, acts or omissions of the Servicer or the Special Servicer.
SECTION 4.06. Remittances; P&I Advances.
(a) "Applicable Monthly Payment" shall mean, for any Mortgage
Loan with respect to any month, and subject to section 3.31(c) (A) if such
Mortgage Loan is delinquent as to its Balloon Payment (including any such
Mortgage Loan as to which the related Mortgaged Property has become an REO
Property), the related Assumed Scheduled Payment and (B) if such Mortgage Loan
is not described by the preceding clause (A) (including any such Mortgage Loan
as to which the related Mortgaged Property has become an REO Property), the
Monthly Payment (after giving effect to any modification other than as described
in clause (A) above); provided, however, that for purposes of calculating the
amount of any P&I Advance required to be made by the Servicer, the Trustee or
the Fiscal Agent, notwithstanding the amount of such Applicable Monthly Payment,
interest shall be calculated at the Mortgage Rate. The Applicable Monthly
Payment shall be reduced, for purposes of P&I Advances, by any modifications
pursuant to Section 3.29 or otherwise and by any reductions by a bankruptcy
court pursuant to a plan of reorganization or pursuant to any of its equitable
powers.
(b) On the Servicer Remittance Date immediately
preceding each Distribution Date:
(i) the Servicer shall remit to the Trustee for deposit
in the Distribution Account an amount equal to the
Prepayment Premiums received by the Servicer or
Special Servicer in the Collection Period preceding
such Distribution Date;
(ii) the Servicer shall remit to the Trustee for deposit
in the Distribution Account an amount equal to the
aggregate of the Available Funds (other than P&I
Advances) and the Trustee Fee for such Distribution
Date; and
(iii) subject to Sections 4.06(c) and 4.06(f), the
Servicer shall make a P&I Advance by depositing
into the Distribution Account, in an amount equal
to the sum of the Applicable Monthly Payments for
each Mortgage Loan (including any such Mortgage
Loan as to which the related Mortgaged Property has
become an REO Property) to the extent such amounts
were not received on such Mortgage Loan as of the
close of business on the immediately preceding
Determination Date, unless related recoveries are
received by the close of business on the Business
Day prior to the Servicer Remittance Date (and
therefore are included in the remittance described
in the preceding clause (ii)).
(c) The Servicer shall not be required or permitted to make an
advance for Balloon Payments, Excess Interest or Default Interest. The amount
required to be advanced in respect of a Mortgage Loan that is delinquent in
respect of its Balloon Payment is the Assumed Scheduled Payment of such Mortgage
Loan. The amount required to be advanced by the Servicer in respect of
Applicable Monthly Payments on Mortgage Loans that have been subject to an
Appraisal Reduction Event will equal the product of (i) the amount required to
be advanced by the Servicer without giving effect to such Appraisal Reduction
Amounts and (ii) a fraction, the numerator of which is the Stated Principal
Balance of the Mortgage Loan (as of the last day of the related Collection
Period) less any Appraisal Reduction Amount in respect thereof and the
denominator of which is the related Stated Principal Balance (as of the last day
of the related Collection Period).
(d) Any amount advanced by the Servicer pursuant to Section
4.06(b)(iii) shall constitute a P&I Advance for all purposes of this Agreement
and the Servicer shall be entitled to reimbursement (with interest at the
Advance Rate) thereof to the full extent as otherwise set forth in this
Agreement.
(e) If as of 11:00 a.m., New York City time, on any
Distribution Date the Servicer shall not have made the P&I Advance required to
have been made on the related Servicer Remittance Date pursuant to Section
4.06(b)(iii), the Trustee shall immediately notify the Servicer and the Fiscal
Agent by telephone promptly confirmed in writing, and the Trustee shall no later
than 12:00 noon, New York City time, on such Business Day deposit into the
Distribution Account in immediately available funds an amount equal to the P&I
Advances otherwise required to have been made by the Servicer. If the Trustee
fails to make any P&I Advance required to be made under this Section 4.06, the
Fiscal Agent shall make such P&I Advance not later than 2:00 p.m., New York City
time, on such Business Day and, thereby, the Trustee shall not be in default
under this Agreement.
(f) None of the Servicer, the Trustee or the Fiscal Agent
shall be obligated to make a P&I Advance as to any Monthly Payment or Assumed
Scheduled Payment on any date on which a P&I Advance is otherwise required to be
made by this Section 4.06 if the Servicer, the Trustee or Fiscal Agent, as
applicable, determines in its good faith business judgment that such advance
will be a Nonrecoverable Advance. On the fourth Business Day before each
Distribution Date, the Special Servicer shall report to the Servicer the Special
Servicer's determination as to whether each P&I Advance made with respect to any
previous Distribution Date or required to be made with respect to such
Distribution Date with respect to any Specially Serviced Mortgage Loan or REO
Mortgage Loan is in its good faith judgment a Nonrecoverable P&I Advance;
provided, however, the Special Servicer shall not be liable to the Trust Fund or
the Servicer if such Advance shall be non-recoverable. The Servicer shall be
required to provide notice to the Trustee and the Fiscal Agent on or prior to
the related Servicer Remittance Date of any such non-recoverability
determination made on or prior to such date. The Trustee and the Fiscal Agent
shall be entitled to rely, conclusively, on any determination by the Servicer
that a P&I Advance, if made, would be a Nonrecoverable Advance; provided,
however, that if the Servicer has failed to make a P&I Advance for reasons other
than a determination by the Servicer that such Advance would be a Nonrecoverable
Advance, the Trustee or Fiscal Agent, as applicable, shall make such advance
within the time periods required by Section 4.06(e) unless the Trustee or the
Fiscal Agent makes a determination in its good faith business judgment prior to
the times specified in Section 4.06(e) that such advance would be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent, in determining whether
or not an Advance previously made is, or a proposed Advance, if made, would be,
a Nonrecoverable Advance shall be subject to the standards applicable to the
Servicer hereunder.
(g) The Servicer, the Trustee or the Fiscal Agent, as
applicable, shall be entitled to the reimbursement of P&I Advances it makes to
the extent permitted pursuant to Section 3.06(ii) of this Agreement together
with any related Advance Interest Amount in respect of such P&I Advances to the
extent permitted pursuant to Section 3.06(iii) and the Servicer and Special
Servicer hereby covenant and agree to promptly seek and effect the reimbursement
of such Advances from the related Borrowers to the extent permitted by
applicable law and the related Mortgage Loan.
SECTION 4.07. Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund
consisting of (i) the Excess Interest and the Excess Interest Distribution
Account, (ii) Repurchase Return of Premium Amounts and (iii) the Repurchase
Price Return of Premium Distribution Account shall constitute, and that the
affairs of the Trust Fund (exclusive of the Trust REMICs and the Loan REMICs)
shall be conducted so as to qualify such portion as a "grantor trust" under the
Code, and the provisions hereof shall be interpreted consistently with this
intention. In furtherance of such intention, the Trustee shall furnish or cause
to be furnished (i) to the Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M-1 and Class M-2 Certificateholders, information as to their allocable shares
of the Excess Interest payable thereon and (ii) to the Class X
Certificateholders, information as to the Repurchase Return of Premium Amounts
distributable thereto, and in any case such other information as may be required
under the Code and shall file or cause to be filed with the IRS such
information, together with Form 1041 or such other form as may be applicable, at
the time or times and in the manner required by the Code.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates consist of the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3 Certificates, the Class A-4
Certificates, the Class X Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the Class F
Certificates, the Class G Certificates, the Class H Certificates, the Class J
Certificates, the Class K Certificates, the Class L Certificates, Class M-1
Certificates, the Class M-2 Certificates, the Class R Certificates and the Class
LR Certificates.
The Class A-1, Class A-2, Class A-3, Class A-4, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M-1, Class M-2, Class R and Class LR Certificates will be substantially
in the forms annexed hereto as Exhibits A-1 through A-19, as set forth in the
Table of Exhibits hereto. The Certificates of each Class will be issuable in
registered form only, in minimum denominations of authorized Certificate Balance
or Class X Notional Balance, as applicable, as described in the succeeding
table, and multiples of $1 in excess thereof (or such lesser amount if the
Certificate or Class X Notional Balance, as applicable, is not a multiple of
$1). With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount (A) set forth on
the face thereof or (B) in the case of any Global Certificate, set forth on a
schedule attached thereto or, in the case of any beneficial interest in a Global
Certificate, the amount set forth on the books and records of the related
Participant or Indirect Participant, as applicable, (ii) expressed in terms of
Initial Certificate Balance or Class X Notional Balance, as applicable, and
(iii) be in an authorized denomination, as set forth below.
Minimum Aggregate Denomination of all
Class Denomination Certificates of Class
----- ------------ ---------------------
A-1 $10,000 $350,000,000
A-2 $10,000 $100,000,000
A-3 $10,000 $800,000,000
A-4 $10,000 $448,115,000
X $1,000,000 $2,374,987,404
B $10,000 $106,875,000
C $10,000 $130,624,000
D $10,000 $136,562,000
E $10,000 $35,625,000
F $10,000 $53,437,000
G $10,000 $59,375,000
H $10,000 $23,750,000
J $10,000 $29,687,000
K $10,000 $41,562,000
L $10,000 $17,813,000
M-1 $10,000 $41,561,404
M-2 $ 1,000 $1,000
Each Certificate will share ratably in all rights of the
related Class. The Certificates (other than the Class R and Class LR
Certificates), will be issued, maintained and transferred in the book-entry
form. The Class R and Class LR Certificates will each be issuable in one or more
registered, definitive physical certificates in minimum denominations of 5%
Percentage Interests and integral multiples of a 1% Percentage Interest in
excess thereof and together aggregating the entire 100% Percentage Interest in
each such Class.
The Global Certificates shall be issued as one or more
certificates registered in the name of a nominee designated by the Depository,
and Beneficial Owners shall hold interests in the Global Certificates through
the book-entry facilities of the Depository in the minimum Denominations and
aggregate Denominations and Classes as set forth above.
The Global Certificates shall in all respects be entitled to
the same benefits under this Agreement as Individual Certificates authenticated
and delivered hereunder.
(b) Except insofar as pertains to any Individual Certificate,
the Trust Fund, the Paying Agent and the Trustee may for all purposes (including
the making of payments due on the Global Certificates and the giving of notice
to Holders thereof) deal with the Depository as the authorized representative of
the Beneficial Owners with respect to the Global Certificates for the purposes
of exercising the rights of Certificateholders hereunder; provided, however,
that, for purposes of providing information or transmitting communications
hereunder to the extent that the Depositor has provided the Trustee with the
names of Beneficial Owners the Trustee shall provide such information to such
Beneficial Owners directly. The rights of Beneficial Owners with respect to
Global Certificates shall be limited to those established by law and agreements
between such Certificateholders and the Depository and Depository Participants.
Except as set forth in Section 5.01(e) below, Beneficial Owners of Global
Certificates shall not be entitled to physical certificates for the Global
Certificates as to which they are the Beneficial Owners. Requests and directions
from, and votes of, the Depository as Holder of the Global Certificates shall
not be deemed inconsistent if they are made with respect to different Beneficial
Owners. Subject to the restrictions on transfer set forth in Section 5.02 and
Applicable Procedures, the holder of a beneficial interest in a Private Global
Certificate may request that the Depositor, or an agent thereof, cause the
Depository (or any Agent Member) to notify the Certificate Registrar and the
Certificate Custodian in writing of a request for transfer or exchange of such
beneficial interest for an Individual Certificate or Certificates. Upon receipt
of such a request and payment by the related Beneficial Owner of any attendant
expenses, the Depositor shall cause the issuance and delivery of such Individual
Certificates. The Certificate Registrar may establish a reasonable record date
in connection with solicitations of consents from or voting by
Certificateholders and give notice to the Depository of such record date.
Without the written consent of the Depositor and the Certificate Registrar, no
Global Certificate may be transferred by the Depository except to a successor
Depository that agrees to hold the Global Certificates for the account of the
Beneficial Owners.
(c) 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.
(d) The Global Certificates (i) shall be delivered by the
Certificate Registrar to the Depository or, pursuant to the Depository's
instructions on behalf of the Depository to, and deposited with, the Certificate
Custodian, and in either case shall be registered in the name of Cede & Co. and
(ii) shall bear a legend substantially to the following effect:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Certificate Registrar for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein."
The Global Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If (i) the Depository advises the Trustee in writing that
the Depository is no longer willing, qualified or able properly to discharge its
responsibilities as Depository, and the Trustee is unable to locate a qualified
successor, (ii) the Depositor or the Trustee, with the consent of the
Underwriters, elects to terminate the book-entry system through the Depository
with respect to all or any portion of any Class of Certificates or (iii) after
the occurrence of an Event of Default, Beneficial Owners owning not less than a
majority in Certificate Balance or Class X Notional Balance, as applicable, of
the Global Certificate for any Class then outstanding advise the Depository
through Depository Participants in writing that the continuation of a book-entry
system through the Depository is no longer in the best interest of the
Beneficial Owner or Owners of such Global Certificate, the Trustee shall notify
the affected Beneficial Owner or Owners through the Depository of the occurrence
of such event and the availability of Individual Certificates to such Beneficial
Owners requesting them. Upon surrender to the Trustee of Global Certificates by
the Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Trustee shall issue the Individual Certificates.
None of the Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer,
the Special Servicer or the Depositor shall be liable for any actions taken by
the Depository or its nominee, including, without limitation, any delay in
delivery of such instructions. Upon the issuance of Individual Certificates, the
Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer, the Special
Servicer, and the Depositor shall recognize the Holders of Individual
Certificates as Certificateholders hereunder.
(f) If the Trustee, its agents or the Servicer or Special
Servicer has instituted or has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, and the Trustee, the Servicer or the Special Servicer has been
advised by counsel that in connection with such proceeding it is necessary or
appropriate for the Trustee, the Servicer or the Special Servicer to obtain
possession of the Certificates, the Trustee, the Servicer or the Special
Servicer may in its sole discretion determine that the Certificates represented
by the Global Certificates shall no longer be represented by such Global
Certificates. In such event, the Trustee or the Authenticating Agent will
execute and authenticate and the Certificate Registrar will deliver, in exchange
for such Global Certificates, Individual Certificates (and if the Trustee or the
Certificate Custodian has in its possession Individual Certificates previously
executed, the Authenticating Agent will authenticate and the Certificate
Registrar will deliver such Certificates) in a Denomination equal to the
aggregate Denomination of such Global Certificates.
(g) If the Trust Fund ceases to be subject to Section 13 or
15(d) of the Exchange Act, the Trustee shall make available to each Holder of a
Class M-1, Class M-2, Class R or Class LR Certificate, upon request of such a
Holder, information substantially equivalent in scope to the information
currently filed by the Trustee with the Commission pursuant to the Exchange Act,
plus such additional information required to be provided for securities
qualifying for resales under Rule 144A under the Act.
For so long as the Class X-0, Xxxxx X-0, Class R or Class LR
Certificates remain outstanding, neither the Depositor nor the Trustee nor the
Certificate Registrar shall take any action which would cause the Trust Fund to
fail to be subject to Section 15(d) of the Exchange Act.
(h) Each Certificate may be printed or in typewritten or
similar form, and each Certificate shall, upon original issue, be executed and
authenticated by the Trustee or the Authenticating Agent and delivered to the
Depositor. All Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee or Authenticating Agent by an authorized officer or
signatory. Certificates bearing the signature of an individual who was at any
time the proper officer or signatory of the Trustee or Authenticating Agent
shall bind the Trustee or Authenticating Agent, notwithstanding that such
individual has ceased to hold such office or position prior to the delivery of
such Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-18 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.
SECTION 5.02. Registration, Transfer and Exchange of
Certificates.
(a) The Trustee shall keep or cause to be kept at the
Corporate Trust Office books (the "Certificate Register") for the registration,
transfer and exchange of Certificates (the Trustee, in such capacity, being the
"Certificate Registrar"). The names and addresses of all Certificateholders and
the names and addresses of the transferees of any Certificates shall be
registered in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of the individual Participants holding beneficial interests in the Trust
Fund through the Depository. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Depositor, the Certificate Registrar, the
Servicer, the Special Servicer, the Trustee, the Fiscal Agent, any Paying Agent
and any agent of any of them shall not be affected by any notice or knowledge to
the contrary. An Individual Certificate is transferable or exchangeable only
upon the surrender of such Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements of Sections
5.02(c), (d), (e), (f), (g) and (h). Upon request of the Trustee, the
Certificate Registrar shall provide the Trustee with the names, addresses and
Percentage Interests of the Holders.
Neither the Trustee nor the Certificate Registrar shall have
any obligation or duty to monitor, determine or inquire as to compliance with
any restriction or transfer imposed under Article V of 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 Article 5 applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register.
The Trustee and the 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 made in violation
of applicable restrictions.
(b) Upon surrender for registration of transfer of any
Individual Certificate (other than an initial transfer to an Affiliate of the
Depositor), subject to the requirements of Sections 5.02(c), (d), (e), (f), (g),
(h) and (i), the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination as the
Individual Certificate being surrendered. Such Certificates shall be delivered
by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled and
subsequently destroyed by the Certificate Registrar. Each new Certificate issued
pursuant to this Section 5.02 shall be registered in the name of any Person as
the transferring Holder may request, subject to the provisions of Sections
5.02(c), (d), (e), (f), (g), (h) and (i).
(c) In addition to the provisions of Sections 5.02(d), (e),
(f), (g) and (h) and the rules of the Depository; the exchange, transfer and
registration of transfer of Individual Certificates or beneficial interests in
the Private Global Certificates shall be subject to the following restrictions:
(i) Transfers between Holders of Individual Certificates.
With respect to the transfer and registration of
transfer of an Individual Certificate representing an
interest in the Class M-2, Class R or Class LR
Certificates to a transferee that takes delivery in
the form of an Individual Certificate:
(A) The Certificate Registrar shall register
the transfer of an Individual Certificate if the
requested transfer is being made by a transferee who
has provided the Certificate Registrar with an
Investment Representation Letter substantially in the
form of Exhibit D-1 hereto (an "Investment
Representation Letter"), to the effect that the
transfer is being made to a Qualified Institutional
Buyer in accordance with Rule 144A; and
(B) The Certificate Registrar shall register
the transfer of any Individual Certificate (other
than the Class R and Class LR) if prior to the
transfer such transferee furnishes to the Certificate
Registrar (1) an Investment Representations Letter to
the effect that the transfer is being made to an
Institutional Accredited Investor or to an Affiliated
Person in accordance with an applicable exemption
under the Act, and (2) an Opinion of Counsel
acceptable to the Certificate Registrar that such
transfer is in compliance with the Act;
and, in each case, the Certificate Registrar shall register
the transfer of an Individual Certificate only if prior to the
transfer the transferee furnishes to the Certificate Registrar
a written undertaking by the transferor to reimburse the Trust
for any costs incurred by it in connection with the proposed
transfer. In addition, the Certificate Registrar may, as a
condition of the registration of any such transfer, require
the transferor to furnish such other certificates, legal
opinions or other information (at the transferor's expense) as
the Certificate Registrar may reasonably require to confirm
that the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Act and other applicable
laws.
(ii) Transfers within the Private Global Certificates.
Notwithstanding any provision to the contrary
herein, so long as a Private Global Certificate
remains outstanding and is held by or on behalf of
the Depository, transfers within the Private Global
Certificates shall only be made in accordance with
this Section 5.02 and the rules of the Depository
and all applicable rules and procedures of the
Depository and Cedel or Euroclear applicable to
transfers by their respective participants (the
"Applicable Procedures"). In addition, no transfer
of a Private Global Certificate shall be made
unless such transfer is exempt from the
registration requirements of the Securities Act and
any applicable state or foreign securities laws.
(iii) Transfers from the Private Global Certificates to
Individual Certificates. Any and all transfers
from a Private Global Certificate to a transferee
wishing to take delivery in the form of an
Individual Certificate will require the transferee
to take delivery subject to the restrictions on the
transfer of such Individual Certificate described
in the Securities Legend, and such transferee
agrees that it will transfer such Individual
Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate
Registrar shall not register any such transfer
unless such transfer is made in accordance with
this Section 5.02(c)(iii).
(A) Transfers of a beneficial interest in a
Private Global Certificate to an Institutional
Accredited Investor will require delivery in the form
of an Individual Certificate and the Certificate
Registrar shall register such transfer only upon
compliance with the provisions of Section
5.02(c)(i)(B).
(B) Transfers of a beneficial interest in a
Private Global Certificate to a Qualified
Institutional Buyer or a Regulation S Investor
wishing to take delivery in the form of an Individual
Certificate will be registered by the Certificate
Registrar only upon compliance with the provisions of
Sections 5.02(c)(i)(A).
Upon acceptance for exchange or transfer of a
beneficial interest in a Private Global Certificate for an
Individual Certificate, as provided herein, the Certificate
Registrar shall endorse on the schedule affixed to the related
Private Global Certificate (or on a continuation of such
schedule affixed to such Private Global Certificate and made a
part thereof) an appropriate notation evidencing the date of
such exchange or transfer and a decrease in the Denomination
of such Private Global Certificate equal to the Denomination
of such Individual Certificate issued in exchange therefor or
upon transfer thereof. Unless determined otherwise by the
Certificate Registrar in accordance with applicable law, an
Individual Certificate issued upon transfer of or exchange for
a beneficial interest in the Private Global Certificate shall
bear the Securities Legend.
(iv) Transfers of Individual Certificates to the Private
Global Certificates. If a Holder of an Individual
Certificate wishes at any time to transfer such
Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the
related Rule 144A Global Certificate, such transfer
may be effected only in accordance with the
Applicable Procedures and this Section
5.02(c)(iv). Upon receipt by the Certificate
Registrar at the Corporate Trust Office of (1) the
Individual Certificate to be transferred with an
assignment and transfer pursuant to Section
5.02(a), (2) written instructions given in
accordance with the Applicable Procedures from an
Agent Member directing the Certificate Registrar to
credit or cause to be credited to another specified
Agent Member's account a beneficial interest in
such Rule 144A Global Certificate in an amount
equal to the Denomination of the Individual
Certificate to be so transferred, (3) a written
order given in accordance with the Applicable
Procedures containing information regarding the
account of the Agent Member, to be credited with
such beneficial interest, and (4) an Investment
Representation Letter from the transferee to the
effect that such transferee is a Qualified
Institutional Buyer if delivery is to be taken in
the form of a beneficial interest in the Rule 144A
Global Certificate, the Certificate Registrar shall
cancel such Individual Certificate, execute and
deliver a new Individual Certificate for the
Denomination of the Individual Certificate not so
transferred, registered in the name of the Holder
or the Holder's transferee (as instructed by the
Holder), and the Certificate Registrar shall
instruct the Depository as the Certificate
Custodian, as applicable, to increase the
Denomination of the Rule 144A Global Certificate,
as the case may be, by the Denomination of the
Individual Certificate to be so transferred, and to
credit or cause to be credited to the account of
the Person specified in such instructions a
corresponding Denomination of the Rule 144A Global
Certificate.
It is the intent of the foregoing that under no
circumstances may an Institutional Accredited Investor that is
not a Qualified Institutional Buyer take delivery in the form
of a beneficial interest in a Private Global Certificate.
(v) All Transfers. An exchange of a beneficial
interest in a Private Global Certificate for an
Individual Certificate or Certificates, an exchange
of an Individual Certificate or Certificates for a
beneficial interest in a Private Global Certificate
and an exchange of an Individual Certificate or
Certificates for another Individual Certificate or
Certificates (in each case, whether or not such
exchange is made in anticipation of subsequent
transfer, and, in the case of the Private Global
Certificates, so long as the Private Global
Certificates remain outstanding and are held by or
on behalf of the Depository), may be made only in
accordance with this Section 5.02 and in accordance
with the rules of the Depository and Applicable
Procedures.
(d) If Certificates are issued upon the transfer, exchange or
replacement of Certificates not bearing the Securities Legend, the Certificates
so issued shall not bear the Securities Legend. If Certificates are issued upon
the transfer, exchange or replacement of Certificates bearing the Securities
Legend, or if a request is made to remove the Securities Legend on a
Certificate, the Certificates so issued shall bear the Securities Legend, or the
Securities Legend shall not be removed, as the case may be, unless there is
delivered to the Certificate Registrar such satisfactory evidence, which may
include an Opinion of Counsel (at the expense of the party requesting the
removal of such legend) familiar with United States securities laws, as may be
reasonably required by the Certificate Registrar, that neither the Securities
Legend nor the restrictions on transfers set forth therein are required to
ensure that transfers of any Certificate comply with the provisions of Rule 144A
or Rule 144 under the Act or that such Certificate is not a "restricted
security" within the meaning of Rule 144 under the Act. Upon provision of such
satisfactory evidence, the Certificate Registrar shall execute and deliver a
Certificate that does not bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set
forth in this Section 5.02, the Holder of any Individual Certificate may
transfer or exchange the same in whole or in part (with a denomination equal to
any authorized denomination) by surrendering such Certificate at the Corporate
Trust Office or at the office of any transfer agent appointed as provided under
this Agreement, together with an instrument of assignment or transfer (executed
by the Holder or its duly authorized attorney), in the case of transfer, and a
written request for exchange, in the case of exchange. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within five
Business Days of such request if made at such Corporate Trust Office or within
ten Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at the Corporate Trust Office or at
the office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first Class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, an Individual Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Individual
Certificate shall not be valid unless made at the Corporate Trust Office or at
the office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of fifteen days preceding any Distribution Date.
(f) An Individual Certificate (other than an Individual
Certificate issued in exchange for a beneficial interest in a Public Global
Certificate pursuant to Section 5.01) or a beneficial interest in a Private
Global Certificate may only be transferred to Eligible Investors, as described
herein. In the event that a Responsible Officer of the Certificate Registrar
becomes aware that such an Individual Certificate or beneficial interest in a
Private Global Certificate is being held by or for the benefit of a Person who
is not an Eligible Investor, or that such holding is unlawful under the laws of
a relevant jurisdiction, then the Certificate Registrar shall have the right to
void such transfer, if permitted under applicable law, or to require the
investor to sell such Individual Certificate or beneficial interest in a Private
Global Certificate to an Eligible Investor within fourteen days after notice of
such determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding
transfer and exchange, transfers of the Global Certificates shall be limited to
transfers of such Global Certificates in whole, but not in part, to nominees of
the Depository or to a successor of the Depository or such successor's nominee.
(h) No fee or service charge shall be imposed by the
Certificate Registrar for its services in respect of any registration of
transfer or exchange referred to in this Section 5.02 other than for transfers
to Institutional Accredited Investors, as provided herein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
(i) Subject to Section 5.02(e), transfers of the Class R and
Class LR Certificates may be made only in accordance with this Section 5.02(i).
The Certificate Registrar shall register the transfer of a Class R or Class LR
Certificate only if (x) the transferor has advised the Certificate Registrar in
writing that such Certificate is being transferred to a Qualified Institutional
Buyer, an Affiliated Person and (y) prior to such transfer the transferee
furnishes to the Certificate Registrar an Investment Representation Letter. In
addition, the Certificate Registrar may as a condition of the registration of
any such transfer require the transferor to furnish such other certifications,
legal opinions or other information (at the transferor's expense) as it may
reasonably require to confirm that the proposed transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Act and other applicable laws.
(j) None of the Depositor, the Servicer, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class R or Class
LR Certificates under the Act or any other securities law or to take any action
not otherwise required under this Agreement to permit the transfer of such
Certificates without registration or qualification. Any Certificateholder
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Depositor, the Servicer, the Trustee and the Certificate Registrar, against
any loss, liability or expense that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(k) No transfer of any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M-1, Class M-2,
Class R or Class LR Certificate (each, a "Restricted Certificate") shall be made
to (i) an employee benefit plan subject to the fiduciary responsibility
provisions of ERISA, or Section 4975 of the Code, or a governmental plan subject
to any federal, state or local law ("Similar Law"), which is to a material
extent, similar to the foregoing provisions of ERISA or the Code (collectively,
a "Plan") or (ii) a collective investment fund in which a Plan is invested, an
insurance company that is using the assets of any insurance company separate
account or general account in which the assets of any such Plan are invested (or
which are deemed pursuant to ERISA or any Similar Law to include assets of
Plans) to acquire any such Restricted Certificate or any other Person acting on
behalf of any Plan or using the assets of any Plan to acquire any such
Restricted Certificate, other than (with respect to transfer of Restricted
Certificates other than the Residual Certificates) an insurance company using
the assets of its general account under circumstances whereby such transfer to
such insurance company and subsequent holding of such Certificate would not
constitute an unexempt "prohibited transaction" within the meaning of Section
406 or 407 of ERISA, Section 4975 of the Code, or a materially similar
characterization under any Similar Law by reason of the application of Sections
I and III of Prohibited Transaction Exemption 95-60. Each prospective transferee
of a Restricted Certificate shall either (1) deliver to the Depositor, the
Certificate Registrar and the Trustee, a transfer or representation letter,
substantially in the form of Exhibit D-2 hereto, stating that the prospective
transferee is not a Person referred to in (i) or (ii) above or (2) in the event
the transferee is such an entity specified in (i) or (ii) above, except in the
case of a Residual Certificate, which may not be transferred unless the
transferee represents it is not such an entity, such entity shall provide an
Opinion of Counsel in form and substance satisfactory to the Certificate
Registrar that the purchase or holding of the certificates by or on behalf of a
plan will not result in the assets of the trust being deemed to be "plan assets"
and subject to the fiduciary responsibility provisions of ERISA or the
prohibited transaction provisions of ERISA and the Code or Similar Law, will not
constitute or result in a prohibited transaction within the meaning of Section
406 or 407 of ERISA or Section 4975 of the Code, and will not subject the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Registrar to any obligation or liability. None of the Trustee, the Servicer or
the Certificate Registrar shall register a Class R or Class LR Certificate in
any Person's name unless such Person has provided the letter referred to in
clause (1) of the preceding sentence. The transferee of a beneficial interest in
a Global Certificate that is a Restricted Certificate shall be deemed to
represent that it is not a Plan or a Person acting on behalf of any Plan or
using the assets of any Plan to acquire such interest other than (with respect
to transfers of beneficial interests in Global Certificates which are Restricted
Certificates other than the Residual Certificates) an insurance company using
the assets of its general account under circumstances whereby such transfer to
such insurance company and subsequent Holders of such Certificate would not
constitute an unexempt "prohibited transaction" within the meaning of Section
406 or 407 of ERISA, Section 4975 of the Code, or a materially similar
characterization under any Similar Law by reason of the application of Section I
and III of Prohibited Transaction Exemption 95-60. Any transfer of a Restricted
Certificate that would violate or result in a prohibited transaction under ERISA
or Section 4975 of the Code shall be deemed absolutely null and void ab initio.
(l) Each Person who has or acquires any Residual Interest
shall be deemed by the acceptance or acquisition of such Residual Interest to
have agreed to be bound by the following provisions and the rights of each
Person acquiring any Residual Interest are expressly subject to the following
provisions:
(i) Each Person acquiring or holding any Residual
Interest shall be a Permitted Transferee and shall
not acquire or hold such Residual Interest as agent
(including a broker, nominee or other middleman) on
behalf of any Person that is not a Permitted
Transferee. Any such Person shall promptly notify
the Certificate Registrar of any change or
impending change in its status (or the status of
the beneficial owner of such Residual Interest) as
a Permitted Transferee. Any acquisition described
in the first sentence of this Section 5.02(l) by a
Person who is not a Permitted Transferee or by a
Person who is acting as an agent of a Person who is
not a Permitted Transferee shall be void and of no
effect, and the immediately preceding owner who was
a Permitted Transferee shall be restored to
registered and beneficial ownership of the Residual
Interest as fully as possible.
(ii) No Residual Interest may be Transferred, and no
such Transfer shall be registered in the
Certificate Register, without the express written
consent of the Certificate Registrar, and the
Certificate Registrar shall not recognize the
Transfer, and such proposed Transfer shall not be
effective, without such consent with respect
thereto. In connection with any proposed Transfer
of any Residual Interest, the Certificate Registrar
shall, as a condition to such consent, (x) require
delivery to it in form and substance satisfactory
to it, and the proposed transferee shall deliver to
the Certificate Registrar and to the proposed
transferor an affidavit in substantially the form
attached as Exhibit C-1 (a "Transferee Affidavit")
of the proposed transferee (A) that such proposed
transferee is a Permitted Transferee and (B)
stating that (i) the proposed transferee
historically has paid its debts as they have come
due and intends to do so in the future, (ii) the
proposed transferee understands that, as the holder
of a Residual Interest, it may incur liabilities in
excess of cash flows generated by the residual
interest, (iii) the proposed transferee intends to
pay taxes associated with holding the Residual
Interest as they become due, (iv) the proposed
transferee will not transfer the Residual Interest
to any Person that does not provide a Transferee
Affidavit or as to which the proposed transferee
has actual knowledge that such Person is not a
Permitted Transferee or is acting as an agent
(including a broker, nominee or other middleman)
for a Person that is not a Permitted Transferee,
and (v) the proposed transferee expressly agrees to
be bound by and to abide by the provisions of this
Section 5.02(l) and (y) other than in connection
with the initial issuance of the Residual
Interests, require a statement from the proposed
transferor substantially in the form attached as
Exhibit C-2 (the "Transferor Letter"), that the
proposed transferor has no actual knowledge that
the proposed transferee is not a Permitted
Transferee and has no actual knowledge or reason to
know that the proposed transferee's statements in
the preceding clauses (x)(B)(i) or (iii) are false.
(iii) Notwithstanding the delivery of a Transferee
Affidavit by a proposed transferee under clause
(ii) above, if a Responsible Officer of the
Certificate Registrar has actual knowledge that the
proposed transferee is not a Permitted Transferee,
no Transfer to such proposed transferee shall be
effected and such proposed Transfer shall not be
registered on the Certificate Register; provided,
however, that the Certificate Registrar shall not
be required to conduct any independent
investigation to determine whether a proposed
transferee is a Permitted Transferee.
Upon notice to the Certificate Registrar that there has
occurred a Transfer of a Residual Interest to any Person that is a Disqualified
Organization or an agent thereof (including a broker, nominee, or middleman) in
contravention of the foregoing restrictions, and in any event not later than 60
days after a request for information from the transferor of such Residual
Interest, or such agent, the Certificate Registrar and the Trustee agree to
furnish to the IRS and the transferor of such Residual Interest or such agent
such information necessary to the application of Section 860E(e) of the Code as
may be required by the Code, including, but not limited to, the present value of
the total anticipated excess inclusions with respect to such Residual Interest
(or portion thereof) for periods after such Transfer. At the election of the
Certificate Registrar and the Trustee, the Certificate Registrar and the Trustee
may charge a reasonable fee for computing and furnishing such information to the
transferor or to such agent referred to above; provided, however, that such
Persons shall in no event be excused from furnishing such information.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Certificate Registrar such security or indemnity as
may be required by it to save it, the Trustee and the Servicer harmless, then,
in the absence of actual knowledge by a Responsible Officer of the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee or the Authenticating Agent shall execute and authenticate and the
Certificate Registrar shall deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the same
Class and of like tenor and Percentage Interest. Upon the issuance of any new
Certificate under this Section 5.03, 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 Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership of the corresponding interest in the Trust
Fund, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.04. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of
making distributions to Certificateholders pursuant to Section 4.01. The Trustee
shall cause such Paying Agent, if other than the Trustee or the Servicer, to
execute and deliver to the Servicer and the Trustee an instrument in which such
Paying Agent shall agree with the Servicer and the Trustee that such Paying
Agent will hold all sums held by it for the payment to Certificateholders in
trust for the benefit of the Certificateholders entitled thereto until such sums
have been paid to the Certificateholders or disposed of as otherwise provided
herein. The initial Paying Agent shall be the Trustee. Except for LaSalle
National Bank, as the initial Paying Agent, the Paying Agent shall at all times
be an entity having a long-term unsecured debt rating of at least "AA" by S&P
and "Aa2" by Xxxxx'x, or shall be otherwise acceptable to each Rating Agency.
SECTION 5.05. Access to Certificateholders' Names
and Addresses
(a) If any Certificateholder, the Special Servicer or the
Servicer (for purposes of this Section 5.05, an "Applicant") applies in writing
to the Certificate Registrar, and such application states that the Applicant
desires to communicate with other Certificateholders, the Certificate Registrar
shall furnish or cause to be furnished to such Applicant a list of the names and
addresses of the Certificateholders as of the most recent Record Date, at the
expense of the Applicant, in the case of any Certificateholder and the expense
of the Trust Fund in the case of the Servicer or the Special Servicer.
(b) Every Certificateholder, by receiving and holding its
Certificate, agrees with the Trustee that the Trustee and the Certificate
Registrar shall not be held accountable in any way by reason of the disclosure
of any information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 5.06. Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders in
person or by agent duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, when required, to the Depositor or
the Servicer. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Agreement
and conclusive in favor of the Trustee, the Depositor and the Servicer, if made
in the manner provided in this Section.
(b) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every Holder of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, or omitted to
be done, by the Trustee, the Depositor or the Servicer in reliance thereon,
whether or not notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such
additional proof of any matter referred to in this Section 5.06 as it shall deem
necessary.
ARTICLE VI
THE DEPOSITOR, THE SERVICER
AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer
and the Special Servicer.
The Depositor, the Servicer and the Special Servicer each
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed by this Agreement.
SECTION 6.02. Merger or Consolidation of the Servicer or
the Special Servicer.
Subject to the following paragraph, each of the Servicer and
the Special Servicer will keep in full effect its existence, rights and good
standing (i) in the case of the Servicer, as a national banking association, and
(ii) in the case of the Special Servicer, a corporation under the laws of the
State of Florida, and, in each case, will not jeopardize its ability to do
business in each jurisdiction in which the Mortgaged Properties are located or
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.
Each of the Servicer and 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 (which, as to the Servicer, may be limited to its
commercial mortgage servicing business), in which case any Person resulting from
any merger or consolidation to which it shall be a party, or any Person
succeeding to its business (which, as to the Servicer, may be limited to its
commercial mortgage servicing business), shall be the successor of the Servicer
or the Special Servicer, respectively, hereunder, and shall be deemed to have
assumed all of the liabilities of the Servicer or the Special Servicer,
respectively, hereunder, if each of the Rating Agencies has confirmed in writing
that such merger or consolidation or transfer of assets and succession, in and
of itself, will not cause a downgrade, qualification or withdrawal of the
then-current ratings assigned by such Rating Agency to any Class of
Certificates.
SECTION 6.03. Limitation on Liability of the Depositor, the
Servicer, the Special Servicer and Others.
(a) None of the Depositor, the Servicer, the Special Servicer
or any of the directors, officers, employees or agents of the Depositor, the
Servicer or the Special Servicer shall be under any liability to the Trust Fund
or the Certificateholders for any action taken, or for refraining from the
taking of any action, in good faith pursuant to this Agreement, or for errors in
judgment or with respect to any action taken by an Other Servicer or Other
Special Servicer in connection with a Co-Lender Split Note; provided, however,
that this provision shall not protect the Depositor, the Servicer or the Special
Servicer or any such Person against any breach of its warranties or
representations made herein, or against any liability which would otherwise be
imposed by reason of its willful misconduct, bad faith, fraud or negligence in
the performance of duties or by reason of reckless disregard of obligations or
duties hereunder. The Depositor, the Servicer, the Special Servicer and any
director, officer, employee or agent of the Depositor, the 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 appropriate Person respecting
any matters arising hereunder. The Depositor, the Servicer, the Special Servicer
and any director, officer, employee or agent of the Depositor, the Servicer or
the Special Servicer shall be indemnified and held harmless by the Trust Fund
against any loss, liability or expense (including legal fees and expenses) (i)
incurred in connection with any legal action or claim relating to this Agreement
or the Certificates (including, without limitation, the distribution of reports
and information as contemplated by this Agreement) outside of any costs and
expenses that it is required to bear under this Agreement without reimbursement
or that constitutes a Property Advance, other than any loss, liability or
expense incurred by reason of willful misconduct, bad faith, fraud or negligence
(or in the case of the Servicer or the Special Servicer, by reason of any
specific liability imposed for a breach of the Servicing Standard) in the
performance of duties hereunder or by reason of reckless disregard of
obligations or duties hereunder, in each case by the Person being indemnified
(provided that it shall be deemed non-negligent for the Servicer to service
based on Mortgage Loan information provided to it in electronic format by, or
caused to be provided by, the Depositor for a period of 30 days after delivery
to the Servicer of the Mortgage Files), (ii) imposed by any taxing authority if
such loss, liability or expense is not specifically reimbursable pursuant to the
terms of this Agreement, or (iii) incurred in connection with any action or
decision by an Other Servicer or Other Special Servicer in connection with a
Co-Lender Split Note. None of the Depositor, the Servicer or the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal action unless such action is related to its respective duties under this
Agreement and in its opinion does not expose it to any ultimate expense or
liability; provided, however, that the Depositor, the Servicer or the Special
Servicer may in its discretion undertake any action related to its obligations
hereunder which it may deem necessary or desirable with respect to this
Agreement and 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 be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Servicer and the Special
Servicer shall be entitled to be reimbursed therefor from the Collection Account
as provided in Section 3.06 of this Agreement.
SECTION 6.04. Limitation on Resignation of the Servicer and
the Special Servicer; Termination of the
Servicer and the Special Servicer.
(a) The Servicer may assign its rights and delegate its duties
and obligations under this Agreement upon sixty days notice, provided that it
has obtained the consent of the Depositor and Xxxxxx Brothers Inc. (which
consent may not be unreasonably withheld and which consent will be deemed given
if such parties do not disapprove the resignation within 60 days after notice);
and provided, further, that: (i) the purchaser or transferee accepting such
assignment and delegation (A) shall be an established mortgage finance
institution, bank or mortgage servicing institution, organized and doing
business under the laws of any state of the United States or the District of
Columbia, authorized under such laws to perform the duties of a servicer of
mortgage loans or a Person resulting from a merger, consolidation or succession
that is permitted under Section 6.02, (B) shall be acceptable to each Rating
Agency as confirmed by a letter from each Rating Agency delivered to the Trustee
that such assignment or delegation will not cause a downgrade, withdrawal or
qualification of the then-current ratings of the Certificates, and (C) shall
execute and deliver to the Trustee an agreement which contains an assumption by
such Person of the due and punctual performance and observance of each covenant
and condition to be performed or observed by the Servicer under this Agreement
from and after the date of such agreement; (ii) the Servicer shall not be
released from its obligations under this Agreement that arose prior to the
effective date of such assignment and delegation under this Section 6.04; and
(iii) the rate at which the Servicer Compensation (or any component thereof), is
calculated shall not exceed the rate then in effect. Upon acceptance of such
assignment and delegation, the purchaser or transferee shall be the successor
Servicer or Special Servicer, as applicable, hereunder. In the event that
neither the Depositor nor any successor thereto, if any, is in existence, any
consent of the Depositor under this Section 6.04(a) shall not be required.
(b) Except as provided in this Section 6.04, the Servicer and
the Special Servicer shall not resign from their respective obligations and
duties hereby imposed on them. In addition, the Servicer may resign upon
determination that its duties hereunder are no longer permissible under
applicable law. Any such determination permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel (obtained at the resigning
Servicer's expense) to such effect delivered to the Trustee. The Special
Servicer has the right to resign at any time provided that (i) a willing
successor thereto has been found, (ii) each of the Rating Agencies confirms in
writing that the successor's appointment will not result in a withdrawal,
qualification or downgrade of the current ratings then assigned to any Class of
Certificates, (iii) the resigning party pays all costs and expenses in
connection with such transfer and (iv) the successor accepts appointment prior
to the effectiveness of such resignation.
No resignation or removal of the Servicer or the Special
Servicer as contemplated by the preceding paragraphs shall become effective
until the Trustee or a successor Servicer or Special Servicer shall have assumed
the Servicer's or the Special Servicer's responsibilities, duties, liabilities
and obligations hereunder. If no successor Servicer or Special Servicer can be
obtained to perform such obligations for the same compensation to which the
terminated Servicer or Special Servicer would have been entitled, additional
amounts payable to such successor Servicer or Special Servicer shall be treated
as Realized Losses.
SECTION 6.05. Rights of the Depositor and the Trustee in
Respect of the Servicer and the Special
Servicer.
The Servicer and the Special Servicer shall afford the
Depositor, the Trustee, the Underwriters and the Rating Agencies, upon
reasonable notice, during normal business hours access to all records maintained
by it in respect of its rights and obligations hereunder and access to its
officers responsible for such obligations. Upon request, the Servicer and the
Special Servicer shall furnish to the Depositor, the Underwriters and the
Trustee its most recent public financial statements, which with respect to the
Servicer may be delivered on a consolidated basis, and such other information in
its possession regarding its business, affairs, property and condition,
financial or otherwise as the party requesting such information, in its
reasonable judgment, determines to be relevant to the performance of the
obligations hereunder of the Servicer and the Special Servicer. The Depositor
may, but is not obligated to, enforce the obligations of the Servicer or the
Special Servicer hereunder which are in default and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of such
Person hereunder or exercise its rights hereunder, provided that the Servicer
and the Special Servicer shall not be relieved of any of its obligations
hereunder by virtue of such performance by the Depositor or its designee. In the
event the Depositor or its designee undertakes any such action it will be
reimbursed by the Trust Fund from the Collection Account as provided in Section
3.06 and Section 6.03(a) hereof to the extent not recoverable from the Servicer
or the Special Servicer, as applicable. No party to this Agreement shall have
any responsibility or liability for any action or failure to act by any other
party to this Agreement or shall be obligated to monitor or supervise the
performance of any other party to this Agreement. Neither the Servicer nor the
Special Servicer shall be under any obligation to disclose confidential or
proprietary information pursuant to this Section.
SECTION 6.06. Servicer or Special Servicer as Owner of a
Certificate.
The Servicer or an Affiliate of the Servicer, or the Special
Servicer or an Affiliate of the Special Servicer may become the Holder (or with
respect to a Global Certificate, Beneficial Owner) of any Certificate with the
same rights it would have if it were not the Servicer or the Special Servicer or
an Affiliate thereof. If, at any time during which the Servicer or the Special
Servicer or an Affiliate of the Servicer or the Special Servicer is the Holder
or Beneficial Owner of any Certificate, the 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
Servicer's or the Special Servicer's good faith judgment, violate the Servicing
Standard, and (ii) if taken, might nonetheless, in the Servicer's or the Special
Servicer's good faith judgment, be considered by other Persons to violate the
Servicing Standard, the Servicer or the Special Servicer may seek the approval
of the Certificateholders to such action by delivering to the Trustee a written
notice that (i) states that it is delivered pursuant to this Section 6.06, (ii)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Servicer or the Special Servicer or an Affiliate of the Servicer or
the Special Servicer, and (iii) describes in reasonable detail the action that
the Servicer or the Special Servicer proposes to take. The Trustee, upon receipt
of such notice, shall forward it to the Certificateholders (other than the
Servicer and its Affiliates or the Special Servicer and its Affiliates, as
applicable) 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 Servicer or its Affiliates or the Special
Servicer or its Affiliates, as applicable) shall have consented in writing to
the proposal described in the written notice, and if the Servicer or the Special
Servicer shall act as proposed in the written notice, such action shall be
deemed to comply with the Servicing Standard. The Trustee shall be entitled to
reimbursement from the Servicer or the Special Servicer, as applicable, of the
reasonable expenses of the Trustee incurred pursuant to this paragraph. It is
not the intent of the foregoing provision that the Servicer or the Special
Servicer be permitted to invoke the procedure set forth herein with respect to
routine servicing matters arising hereunder, except in the case of unusual
circumstances.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Servicer Event of Default," wherever used herein, means
any one of the following events:
(i) any failure by the Servicer to remit to the
Collection Account or any failure by the Servicer
to remit to the Trustee for deposit into the
Distribution Account, Upper-Tier Distribution
Account, Excess Interest Distribution Account or
Interest Reserve Account or any amount required to
be so deposited by the Servicer, pursuant to, and
on the day specified by the terms of this
Agreement; or
(ii) any failure on the part of the Servicer duly to
observe or perform in any material respect any
other of the covenants or agreements or the breach
of any representations or warranties on the part of
the Servicer contained in this Agreement which
continues unremedied for a period of 30 days (or 60
days, so long as the Servicer is in good faith
diligently pursuing a cure) after the date on which
written notice of such failure, requiring the same
to be remedied, shall have been given to the
Servicer by the Depositor, the Special Servicer or
the Trustee, or to the Servicer, the Depositor and
the Trustee by the Holders of Certificates
evidencing Percentage Interests of at least 25% of
any Class affected thereby or any failure of by the
Servicer to make any P & I Advances as required
hereunder; or
(iii) confirmation in writing (a copy of which shall be
provided to the Servicer by the Trustee) by Xxxxx'x
that failure to remove the Servicer will, in and of
itself, cause a downgrade, qualification or
withdrawal of the then-current ratings assigned to
any Class of Certificates; or
(iv) 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
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 Servicer and such
decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(v) the Servicer shall consent 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 the Servicer or of or relating to all or
substantially all of its property; or
(vi) the Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a
petition to take advantage of any applicable
insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(vii) the Servicer shall fail to make any Property
Advance required to be made by the Servicer
hereunder (whether or not the Trustee or the Fiscal
Agent makes such Advance), which failure continues
unremedied for a period of thirty (30) days after
the date on which such Property Advance was first
due (or for any shorter period as may be required,
if applicable, to avoid any lapse in insurance
coverage required under any Mortgage or this
Agreement with respect to any Mortgaged Property or
to avoid any foreclosure or similar action with
respect to any Mortgaged Property by reason of a
failure to pay real estate taxes and assessments
and if the Trustee makes a required Property
Advance pursuant to Section 3.08(a) due to the
Servicer's failure to make such an Advance when
required hereunder, such Event of Default shall
occur immediately upon such Advance); or
(viii) the Servicer shall no longer have a rating of at
least "average" (or equivalent) by S & P as a
servicer for mortgage pools similar to the Trust
Fund and such failure to be so rated shall continue
unremedied for 30 days after the Servicer's receipt
of notice of such failure or such lesser period if
S&P confirms in writing that failure to remove the
Servicer at such earlier time will, in and of
itself, cause a downgrade, qualification or
withdrawal of the then current ratings of the
Certificates.
If a Servicer Event of Default shall occur, then, and in each and every such
case, so long as such Servicer Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Holders of at least 25% of
the aggregate Voting Rights of all Certificates shall, terminate the Servicer.
In the event that the Servicer is also the Special Servicer
and the Servicer is terminated as provided in this Section 7.01, the Servicer
shall also be terminated as Special Servicer.
(b) "Special Servicer Event of Default," wherever used herein,
means any one of the following events:
(i) any failure by the Special Servicer to remit to the
Collection Account or the REO Account any amount
required to be so deposited by the Special Servicer
pursuant to and in accordance with the terms of this
Agreement; or
(ii) any failure on the part of the Special Servicer
duly to observe or perform in any material respect
any other of the covenants or agreements or the
breach of any representations or warranties on the
part of the Special Servicer contained in this
Agreement which continues unremedied for a period
of 30 days (or 60 days, so long as the Special
Servicer is in good faith diligently pursuing a
cure) after the date on which written notice of
such failure, requiring the same to be remedied,
shall have been given to the Special Servicer by
the Servicer, the Depositor or the Trustee, or to
the Special Servicer, the Servicer, the Depositor
and the Trustee by the Holders of Certificates
evidencing Percentage Interests of at least 25% of
any Class affected thereby; or
(iii) confirmation in writing (a copy of which shall be
provided to the Special Servicer by the Trustee) by
Xxxxx'x that failure to remove the Special Servicer
would, in and of itself, cause a downgrade,
qualification or withdrawal of the then-current
ratings assigned to any Class of Certificates; or
(iv) 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
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 Special Servicer and
such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(v) the Special Servicer shall consent 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 the Special Servicer, or of or relating
to all or substantially all of its property; or
(vi) 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 insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(vii) the Special Servicer shall no longer have a rating
of at least "average" (or equivalent designation)
by S&P as a special servicer for mortgage pools
similar to the Trust Fund and such failure to be so
rated shall continue unremedied for 30 days after
the Special Servicer's receipt of notice of such
failure or such lesser period if S&P confirms in
writing that failure to remove the Special Servicer
at such earlier time will, in and of itself, cause
a downgrade, qualification or withdrawal of the
then current ratings of the Certificates.
If a Special Servicer Event of Default shall occur, then, and in each and every
such case, so long as such Special Servicer Event of Default shall not have been
remedied, the Trustee may, and at the written direction of the Holders of at
least 25% of the aggregate Voting Rights of all Certificates shall, terminate
the Special Servicer.
(c) In the event that the Servicer or the Special Servicer is
terminated pursuant to this Section 7.01, the Trustee (the "Terminating Party")
shall, by notice in writing to the Servicer or the Special Servicer, as the case
may be (the "Terminated Party"), terminate all of its rights and obligations
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than any rights the Terminated Party may have hereunder as a
Certificateholder and any rights or obligations that accrued prior to the date
of such termination (including the right to receive all amounts accrued or owing
to it under this Agreement, plus interest at the Advance Rate on such amounts
until received to the extent such amounts bear interest as provided in this
Agreement, with respect to periods prior to the date of such termination and the
right to the benefits of Section 6.03 notwithstanding any such termination). On
or after the receipt by the Terminated Party, of such written notice, all of its
authority and power under this Agreement, whether with respect to the
Certificates (except that the Terminated Party shall retain its rights as a
Certificateholder in the event and to the extent that it is a Certificateholder)
or the Mortgage Loans or otherwise, shall pass to and be vested in the
Terminating Party pursuant to and under this Section and, without limitation,
the Terminating Party is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the Terminated 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 such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. The
Servicer and the Special Servicer each agree in the event it is terminated
pursuant to this Section 7.01 to promptly (and in any event no later than 10
Business Days subsequent to such notice) provide the Terminating Party with all
documents and records requested by the Terminating Party to enable the
Terminating Party to assume its functions hereunder, and to cooperate with the
Terminating Party and the successor to its responsibilities hereunder in
effecting the termination of its responsibilities and rights hereunder,
including, without limitation, the transfer to the successor Servicer or Special
Servicer or the Terminating Party, as applicable, for administration by it of
all cash amounts which shall at the time be or should have been credited by the
Servicer or the Special Servicer to the Collection Account, and any REO Account,
Lock-Box Account or Cash Collateral Account thereafter be received with respect
to the Mortgage Loans, and shall promptly provide the Terminating Party or such
successor Servicer or successor Special Servicer (which may include the
Trustee), as applicable, all documents and records reasonably requested by it,
such documents and records to be provided in such form as the Terminating Party
or such successor Servicer or Special Servicer shall reasonably request
(including electromagnetic form), to enable it to assume the Servicer's or
Special Servicer's function hereunder. All reasonable costs and expenses of the
Terminating Party incurred in connection with transferring the Mortgage Files to
the successor Servicer or Special Servicer pursuant to this Section 7.01 shall
be paid by the predecessor Servicer or Special Servicer, as applicable, upon
presentation of reasonable documentation of such costs and expenses. If the
predecessor Servicer or Special Servicer (as the case may be) has not reimbursed
the Terminating Party or the successor Servicer or Special Servicer for such
expenses within 90 days after the presentation of reasonable documentation, such
expense shall be reimbursed by the Trust Fund; provided that the Terminated
Party shall not thereby be relieved of its liability for such expenses. If and
to the extent that the Terminated Party has not reimbursed such costs and
expenses, the Terminating Party shall have an affirmative obligation to take all
reasonable actions to collect such expenses on behalf of the Trust Fund.
In the event the Servicer is terminated solely due to an Event
of Default under Section 7.01(a)(iii) or (viii) and the Trustee succeeds to the
Servicer pursuant to Section 7.01(c), if the Servicer delivers to the Trustee
proposed bid materials within five Business Days, the Trustee shall, within the
next three Business Days, solicit good faith bids for the rights to service the
Mortgage Loans under this Agreement from at least three Persons qualified
hereunder in accordance with this Agreement to act as successor Servicer (or if
three qualified Persons cannot be located, from as many Persons as qualified).
The bid proposal shall require any Successful Bidder, as a condition of such
bid, to enter into this Agreement as successor Servicer, and shall agree to be
bound by the terms hereof within 45 days after the termination of Servicer. The
Trustee shall solicit bids (i) on the basis of such successor Servicer retaining
all sub-servicers to continue the primary servicing of the Mortgage Loans
pursuant to the terms of the respective sub-servicing agreements and entering
into a sub-servicing agreement with the terminated Servicer to service each of
the Mortgage Loans not subject to a sub-servicing agreement at a servicing fee
rate of 0.03% per annum per Mortgage Loan serviced (each a "Servicing Retained
Bid") and (ii) on the basis of terminating each sub-servicing agreement with the
terminated Servicer (each a "Servicing Released Bid"). The Trustee shall select
the qualified bidder of a Servicing Retained Bid, or if none a Servicing
Released Bid, with the highest cash bid (the "Successful Bidder") to act as
successor Servicer hereunder; provided that the Trustee shall not select the
bidder of a Servicing Retained Bid unless it receives written confirmation from
the Rating Agencies that the retention of the terminated Servicer pursuant to a
subservicing agreement would not result in the withdrawal qualification or
downgrade of the then-current ratings of any Class of Certificates. The Trustee
shall direct the Successful Bidder to enter into this Agreement as successor
Servicer pursuant to the terms hereof, no later than 45 days after the
termination of the Servicer.
Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder, including the transfer of the
servicing of the Mortgage Loans, the Trustee shall remit or cause to be remitted
(i), if the successful bid was a Servicing Retained Bid, to the terminated
Servicer the amount of such cash bid received from the Successful Bidder (net of
expenses in connection with obtaining such bid and out-of-pocket expenses
incurred in connection with transferring the servicing of the Mortgage Loans)
and (ii) if the successful bid was a Servicing Released Bid, to the Servicer and
each sub-servicer its respective Bid Allocation.
If the Successful Bidder has not entered into this Agreement
as successor Servicer within 45 days after the Trustee was appointed as
successor Servicer or no Successful Bidder was identified within such 45-day
period, the terminated Servicer shall reimburse the Trustee for all
out-of-pocket expenses incurred by the Trustee in connection with such bid
process and the Trustee shall have no further obligations under this Section
7.01(c) and may select a successor Servicer of its choice and pursuant to the
terms hereof.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer
receives a notice of termination pursuant to Section 7.01, subject to the
appointment of a successor Servicer pursuant to the second paragraph of Section
7.01(c), the Terminating Party shall be its successor in all respects in its
capacity as Servicer or Special Servicer under this Agreement and the
transactions set forth or provided for herein and, except as provided herein,
shall be subject to all the responsibilities, duties, limitations on liability
and liabilities relating thereto and arising thereafter placed on the Servicer
or Special Servicer by the terms and provisions hereof; provided, however, that
(i) the Terminating Party shall have no responsibilities, duties, liabilities or
obligations with respect to any act or omission of the Servicer or Special
Servicer and (ii) any failure to perform, or delay in performing, such duties or
responsibilities caused by the Terminated Party's failure to provide, or delay
in providing, records, tapes, disks, information or monies shall not be
considered a default by such successor hereunder. The Trustee, as successor
Servicer or successor Special Servicer, shall be indemnified to the full extent
provided the Servicer or Special Servicer, as applicable, under this Agreement
prior to the Servicer's or the Special Servicer's termination. The appointment
of a successor Servicer or successor Special Servicer shall not affect any
liability of the predecessor Servicer or Special Servicer which may have arisen
prior to its termination as Servicer or Special Servicer. The Terminating Party
shall not be liable for any of the representations and warranties of the
Servicer or Special Servicer herein or in any related document or agreement, for
any acts or omissions of the predecessor Servicer or predecessor Special
Servicer or for any losses incurred in respect of any Permitted Investment by
the Servicer pursuant to Section 3.07 hereunder nor shall the Trustee be
required to purchase any Mortgage Loan hereunder. As compensation therefor, the
Terminating Party as successor Servicer or successor Special Servicer shall be
entitled to the applicable portion of the Servicing Compensation or to the
Special Servicing Compensation, as applicable, and all funds (other than
reimbursement to the terminated Servicer for amounts owed to it) relating to the
Mortgage Loans that accrue after the date of the Terminating Party's succession
to which the Servicer or Special Servicer would have been entitled if the
Servicer or Special Servicer, as applicable, had continued to act hereunder. In
the event any Advances made by the Servicer and the Trustee or the Fiscal Agent
shall at any time be outstanding, or any amounts of interest thereon shall be
accrued and unpaid, all amounts available to repay Advances and interest
hereunder shall be applied entirely to the Advances made by the Trustee or the
Fiscal Agent (and the accrued and unpaid interest thereon), until such Advances
and interest shall have been repaid in full and then toward Advances made by the
terminated Servicer. Notwithstanding the above, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable to so act, or if the Holders of
Certificates entitled to at least 25% of the aggregate Voting Rights so request
in writing to the Trustee, or if the long-term unsecured debt rating of the
Trustee or Fiscal Agent is not at least "A" by S&P and "Aa2" by Xxxxx'x or if
the Rating Agencies do not provide written confirmation that the succession of
the Trustee as Servicer or Special Servicer, as applicable, will not cause a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution the
appointment of which will not result in a downgrade, qualification or withdrawal
of the then-current rating or ratings assigned to any Class of Certificates as
evidenced in writing by each Rating Agency, as the successor to the Servicer or
Special Servicer, as applicable, hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Servicer or Special
Servicer hereunder. No appointment of a successor to the Servicer or Special
Servicer hereunder shall be effective until the assumption by such successor of
all the Servicer's or Special Servicer's responsibilities, duties and
liabilities hereunder. Pending appointment of a successor to the Servicer (or
the Special Servicer if the Special Servicer is also the Servicer) hereunder,
unless the Trustee shall be prohibited by law from so acting, the Trustee shall
act in such capacity as herein above provided. Pending the appointment of a
successor to the Special Servicer, unless the Servicer is also the Special
Servicer, the Servicer shall act in such capacity. In connection with such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Terminated Party
hereunder, provided, further, that if no successor to the Terminated Party can
be obtained to perform the obligations of such Terminated Party hereunder for
such compensation, then, subject to approval by the Directing Holders,
additional amounts shall be paid to such successor and such amounts in excess of
that permitted the Terminated Party shall be treated as Realized Losses. Upon
determining that a successor to the Terminated Party cannot be obtained for the
compensation that the Terminated Party was receiving, the Trustee shall give
notice of that fact to the Directing Holders. Once the Trustee has determined
the amount of compensation acceptable to a proposed successor to the Terminated
Party, the Trustee shall give notice to the Directing Holders of the identity of
such successor and the proposed compensation. The Directing Holders will then
have 10 Business Days during which to propose their own successor and
compensation (which must be acceptable to the Rating Agencies, as evidenced in
writing that the appointment of such successor, in and of itself would not
result in a downgrade, qualification or withdrawal by any Rating Agency of the
then-current ratings assigned to the Certificates) or to approve the successor
and compensation proposed by the Trustee. The Depositor, the Trustee, the
Servicer or Special Servicer and such successor 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 termination pursuant to Section 7.01 above or
appointment of a successor to the Servicer or the Special Servicer, the Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register and to each Rating
Agency.
(b) Within 30 days after the occurrence of any Event of
Default of which a Responsible Officer of the Trustee has actual knowledge, the
Trustee shall transmit by mail to all Certificateholders and to each Rating
Agency notice of such Event of Default, unless such Event of Default shall have
been cured or waived.
SECTION 7.04. Other Remedies of Trustee.
During the continuance of any Servicer Event of Default or a
Special Servicer Event of Default, so long as such Servicer Event of Default or
Special Servicer Event of Default, if applicable, 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 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 filing of proofs of claim
and debt in connection therewith). In such event, the legal fees, expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund, and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account as provided in Section 3.06.
Except as otherwise expressly provided in this Agreement, no remedy provided for
by this Agreement shall be exclusive of any other remedy, and each and every
remedy shall be cumulative and in addition to any other remedy and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Servicer Event of Default or Special
Servicer Event of Default, if applicable.
SECTION 7.05. Waiver of Past Events of Default; Termination.
The Holders of Certificates evidencing not less than 66-2/3%
of the aggregate Voting Rights of the Certificates may, on behalf of all
Certificateholders, waive any default by the Servicer or Special Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits (including P&I Advances) to or, in the case of
the Servicer, payments from the Collection Account or the Distribution Account
or in remitting payments as received, in each case in accordance with this
Agreement. Upon any such waiver of a past default, such default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
remedied for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default of which a Responsible Officer of the Trustee has actual knowledge 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 and no permissive right of the Trustee shall be
construed as a duty. During the continuance of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee, subject to
the provisions of Sections 7.02 and 7.05 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 person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) The Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform on their face to the requirements of this
Agreement; provided, however, that, the Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument provided to it hereunder. If any
such instrument is found not to conform on its face to the requirements of this
Agreement in a material manner, the Trustee shall take action as it deems
appropriate to have the instrument corrected, and if the instrument is not
corrected to the Trustee's reasonable satisfaction, the Trustee will provide
notice thereof to the Certificateholders.
(c) Neither the Trustee nor any of its officers, directors,
employees, agents or "control" persons within the meaning of the Act shall have
any liability arising out of or in connection with this Agreement, provided,
that, subject to Section 8.02, no provision of this Agreement shall be construed
to relieve the Trustee, or any such person, from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or its
own bad faith; and provided, further, that:
(i) Prior to the occurrence of an Event of Default of
which a Responsible Officer of the Trustee has
actual knowledge, and after the curing or waiver 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 resolutions,
certificates, statements, reports, opinions,
documents, orders or other instruments furnished to
the Trustee that conform on their face to the
requirements of this Agreement without
responsibility for investigating the contents
thereof;
(ii) The Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible
Officer or Responsible Officers, unless it shall be
proved that the Trustee was negligent in ascertaining
the pertinent facts;
(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
greater than 50% of the Percentage Interests (or
such other percentage as is specified herein) of
each affected Class (or the Directing Holders if so
specified herein), or of the aggregate Voting
Rights of the Certificates, 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;
(iv) Neither the Trustee nor any of its respective
directors, officers, employees, agents or control
persons shall be responsible for any act or
omission of any Custodian, Paying Agent or
Certificate Registrar that is not the Trustee or
any Affiliate thereof and that is selected other
than by the Trustee, performed or omitted in
compliance with any custodial or other agreement,
or any act or omission of the Servicer, Special
Servicer, the Depositor or any other Person,
including, without limitation, in connection with
actions taken pursuant to this Agreement;
(v) The Trustee shall not be under any obligation to
appear in, prosecute or defend any legal action
which is not incidental to its respective duties as
Trustee in accordance with this Agreement (and, if
it does, all legal expenses and costs of such
action shall be expenses and costs of the Trust
Fund), and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account,
unless such legal action arises out of the
negligence or bad faith of the Trustee or any
breach of an obligation, representation, warranty
or covenant of the Trustee contained herein; and
(vi) The Trustee shall not be charged with knowledge of
any act, failure to act or breach of any Person
upon the occurrence of which the Trustee may be
required to act, unless a Responsible Officer of
the Trustee obtains actual knowledge of such
failure. The Trustee shall be deemed to have
actual knowledge of the Servicer's or the Special
Servicer's failure to provide scheduled reports,
certificates and statements when and as required to
be delivered to the Trustee pursuant to this
Agreement.
None of the provisions contained in this Agreement shall
require either the Trustee, in its capacity as Trustee, or the Fiscal Agent, to
expend or risk its own funds, or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if in the opinion of the Trustee or the Fiscal Agent,
respectively, the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations of
the Servicer or the Special Servicer under this Agreement, except during such
time, if any, as the Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of, the Servicer or the Special Servicer
in accordance with the terms of this Agreement. Neither the Trustee nor the
Fiscal Agent shall be required to post any surety or bond of any kind in
connection with its performance of its obligations under this Agreement and
neither the Trustee nor the Fiscal Agent shall be liable for any loss on any
investment of funds pursuant to this Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or 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 and the Trustee shall have
no responsibility to ascertain or confirm the
genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and 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 with such Opinion of Counsel;
(iii) (A) The Trustee shall be under no obligation 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; (B) the right of the Trustee to perform
any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee
shall not be answerable for other than its
negligence or willful misconduct in the performance
of any such act; and (C) provided, however, that
subject to the foregoing clause (A), nothing
contained herein shall relieve the Trustee of the
obligations, upon the occurrence of an Event of
Default (which has not been cured or waived) of
which a Responsible Officer of the Trustee has
actual knowledge, 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 person would exercise or use
under the circumstances in the conduct of such
person's own affairs;
(iv) Neither the Trustee nor any of its directors,
officers, employees, Affiliates, agents or
"control" persons within the meaning of the Act
shall be personally liable for any action taken,
suffered or omitted by it in good faith and
reasonably believed by the Trustee to be authorized
or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) 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 any of the Holders
of Certificates entitled to at least 25% (of such
other percentage as is specified herein) of the
Percentage Interests of any affected Class;
provided, however, that if the payment within a
reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or
liability as a condition to taking any such
action. The reasonable expense of every such
investigation shall be paid by the Servicer or the
Special Servicer if an Event of Default shall have
occurred and be continuing relating to the Servicer
or the Special Servicer, respectively, and
otherwise by the Certificateholders requesting the
investigation; and
(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 but
shall not be relieved of the obligations hereunder.
(b) Following the Start-up Day, the Trustee shall not, except
as expressly required by any provision of this Agreement, accept any
contribution of assets to the Trust Fund unless the Trustee shall have received
an Opinion of Counsel (the costs of obtaining such opinion to be borne by the
Person requesting such contribution) to the effect that the inclusion of such
assets in the Trust Fund will not cause the Upper-Tier REMIC, the Lower-Tier
REMIC or any Loan REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject the Upper-Tier REMIC, the Lower-Tier
REMIC or any Loan REMIC to any tax under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall have no duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the repurchase of
any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility
of any Mortgage Loan for purposes of this Agreement.
SECTION 8.03. Trustee and Fiscal Agent Not Liable for
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall
not be taken as the statements of the Trustee, the Fiscal Agent, the Servicer or
the Special Servicer and the Trustee, the Fiscal Agent, the Servicer and the
Special Servicer assume no responsibility for their correctness. The Trustee,
the Fiscal Agent, the Servicer and the Special Servicer make no representations
or warranties as to the validity or sufficiency of this Agreement, of the
Certificates or any prospectus used to offer the Certificates for sale or the
validity, enforceability or sufficiency of any Mortgage Loan, or related
document. Neither the Trustee nor the Fiscal Agent shall at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage, any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust Fund or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement. Without limiting the foregoing, neither the Trustee nor the Fiscal
Agent shall be liable or responsible for: the existence, condition and ownership
of any Mortgaged Property; the existence of any hazard or other insurance
thereon (other than if the Trustee shall assume the duties of the Servicer or
the Special Servicer pursuant to Section 7.02) or the enforceability thereof;
the existence of any Mortgage Loan or the contents of the related Mortgage File
on any computer or other record thereof (other than if the Trustee shall assume
the duties of the Servicer or the Special Servicer pursuant to Section 7.02);
the validity of the assignment of any Mortgage Loan to the Trust Fund or of any
intervening assignment; the completeness of any Mortgage File; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Servicer or the Special Servicer pursuant to Section 7.02); the
compliance by the Depositor, the Servicer or the Special Servicer with any
warranty or representation made under this Agreement or in any related document
or the accuracy of any such warranty or representation prior to the Trustee's
receipt of notice or other discovery of any non-compliance therewith or any
breach thereof; any investment of monies by or at the direction of the Servicer
or any loss resulting therefrom, it being understood that the Trustee shall
remain responsible for any Trust Fund property that it may hold in its
individual capacity; the acts or omissions of any of the Depositor, the Servicer
or the Special Servicer (other than if the Trustee shall assume the duties of
the Servicer or Special Servicer pursuant to Section 7.02) or any sub-servicer
or any Borrower; any action of the Servicer or Special Servicer (other than if
the Trustee shall assume the duties of the Servicer or Special Servicer pursuant
to Section 7.02) or any sub-servicer taken in the name of the Trustee, except to
the extent such action is taken at the express written direction of the Trustee;
the failure of the Servicer or the Special Servicer or any sub-servicer to act
or perform any duties required of it on behalf of the Trust Fund or the Trustee
hereunder; or any action by or omission of the Trustee taken at the instruction
of the Servicer or the Special Servicer (other than if the Trustee shall assume
the duties of the Servicer or the Special Servicer pursuant to Section 7.02)
unless the taking of such action is not permitted by the express terms of this
Agreement; provided, however, that the foregoing shall not relieve the Trustee
of its obligation to perform its duties as specifically set forth in this
Agreement. Neither the Trustee nor the Fiscal Agent shall be accountable for the
use or application by the Depositor, the Servicer or the Special Servicer of any
of the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor, the Servicer or the Special
Servicer in respect of the assignment of the Mortgage Loans or deposited in or
withdrawn from the Collection Account, Distribution Account, Upper-Tier
Distribution Account, Lock-Box Account, Cash Collateral Account, Reserve
Accounts, Interest Reserve Account, Excess Interest Distribution Account and
Repurchase Price Return of Premium Distribution Account or any other account
maintained by or on behalf of the Servicer or the Special Servicer, other than
any funds held by the Trustee or the Fiscal Agent, as applicable. Neither the
Trustee nor the Fiscal Agent shall have any responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become the successor
Servicer) or to record this Agreement. In making any calculation hereunder which
includes as a component thereof the payment or distribution of interest for a
stated period at a stated rate "to the extent permitted by applicable law," the
Trustee shall assume that such payment is so permitted unless a Responsible
Officer of the Trustee has actual knowledge, or receives an Opinion of Counsel
(at the expense of the Person asserting the impermissibility) to the effect,
that such payment is not permitted by applicable law.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent and any agent of the Trustee and
Fiscal Agent in its individual capacity or any other capacity may become the
owner or pledgee of Certificates, and may deal with the Depositor and the
Servicer in banking transactions, with the same rights it would have if it were
not Trustee, Fiscal Agent or such agent.
SECTION 8.05. Payment of Trustee's Fees and Expenses;
Indemnification.
(a) The Trustee or any successor Trustee shall be entitled, on
each Distribution Date, to the Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, which Trustee Fee shall be paid to the Trustee prior
to the distribution on such Distribution Date of amounts to the
Certificateholders. In the event that the Trustee assumes the servicing
responsibilities of the Servicer or the Special Servicer hereunder pursuant to
or otherwise arising from the resignation or removal of the Servicer or the
Special Servicer, the Trustee shall be entitled to the compensation to which the
Servicer or the Special Servicer, as the case may be, would have been entitled.
(b) The Trustee and the Fiscal Agent shall each be paid or
reimbursed by the Trust Fund upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee or the Fiscal Agent
pursuant to and in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) to the extent such
payments are "unanticipated expenses incurred by the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(iii) except any such expense,
disbursement or advance as may arise from its negligence, bad faith or willful
misconduct; provided, however, that, subject to the last paragraph of Section
8.01, neither the Trustee nor the Fiscal Agent shall refuse to perform any of
its duties hereunder solely as a result of the failure to be paid the Trustee
Fee and the Trustee's expenses or any sums due to the Fiscal Agent.
The Servicer and the Special Servicer covenant and agree to
pay or reimburse the Trustee for the reasonable expenses, disbursements and
advances incurred or made by the Trustee in connection with any transfer of the
servicing responsibilities of the Servicer or the Special Servicer,
respectively, hereunder, pursuant to or otherwise arising from the resignation
or removal of the Servicer, in accordance with any of the provisions of this
Agreement (and including the reasonable and necessary fees and expenses and
disbursements of its counsel and all other persons not regularly in its employ),
except any such expense, disbursement or advance as may arise from the
negligence or bad faith of the Trustee or expenses incurred by the Trustee in
its capacity as successor Servicer.
(c) Each of the Paying Agent, the Certificate Registrar, the
Custodian, the Depositor, the Servicer, the Special Servicer and the Trustee
(each, a "Cross-Indemnifying Party") shall indemnify the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent and their respective Affiliates and
each of the directors, officers, employees and agents of the Trustee, the Fiscal
Agent and their respective Affiliates (each, a "Cross-Indemnified Party"), and
hold each of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the
Cross-Indemnified Party may sustain in connection with this Agreement
(including, without limitation, reasonable fees and disbursements of counsel
incurred by the Cross-Indemnified Party in any action or proceeding between the
Cross-Indemnifying Party and the Cross-Indemnified Party or between the
Cross-Indemnified Party and any third party or otherwise) as a result of each
such Cross-Indemnifying Party's respective willful misconduct, bad faith, fraud
and/or negligence in the performance of each of its respective duties hereunder
or by reason of reckless disregard of its respective obligations and duties
hereunder (including in the case of the Servicer, any agent of the Servicer or
sub-servicer).
(d) The Trust Fund shall indemnify the Trustee and the Fiscal
Agent and their respective Affiliates and each of the directors, officers,
employees and agents of the Trustee, the Fiscal Agent and their respective
Affiliates (each, a "Trust-Indemnified Party") from, and hold it harmless
against, any and all losses, liabilities, damages, claims or unanticipated
expenses (including, without limitation, reasonable fees and disbursements of
counsel incurred by the Trust-Indemnified Party in any action or proceeding
between any of the Paying Agent, the Certificate Registrar, the Custodian, the
Depositor, the Servicer and the Special Servicer and the Trust-Indemnified Party
or between the Trust-Indemnified Party and any third party or otherwise) arising
in respect of this Agreement or the Certificates, in each case to the extent and
only to the extent, such payments are expressly reimbursable under this
Agreement or are "unanticipated expenses incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(iii), other than (i)
those resulting from the negligence, fraud, bad faith or willful misconduct of
the Trust-Indemnified Party and (ii) those as to which such Trust-Indemnified
Party is entitled to indemnification pursuant to Section 8.05(c). The term
"unanticipated expenses incurred by a REMIC" shall include any fees, expenses
and disbursement of any separate trustee or co-trustee appointed hereunder, only
to the extent such fees, expenses and disbursements were not reasonably
anticipated as of the Closing Date and the losses, liabilities, damages, claims
or expenses (including reasonable attorneys' fees) incurred or advanced by a
Trust-Indemnified Party in connection with any litigation arising out of this
Agreement, including, without limitation, under Section 2.03, Section 3.10, the
third paragraph of Section 3.11, Section 4.05 and Section 7.01. The right of
reimbursement of the Trust-Indemnified Parties under this Section 8.05(d) shall
be senior to the rights of all Certificateholders.
(e) Notwithstanding anything herein to the contrary, this
Section 8.05 shall survive the termination or maturity of this Agreement or the
resignation or removal of the Trustee or the Fiscal Agent, as the case may be,
as regards rights accrued prior to such resignation or removal and (with respect
to any acts or omissions during their respective tenures) the resignation,
removal or termination of the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar or the Custodian.
(f) This Section 8.05 shall be expressly construed to include,
but not be limited to, such indemnities, compensation, expenses, disbursements,
advances, losses, liabilities, damages and the like, as may pertain or relate to
any environmental law or environmental matter.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall satisfy the requirements of
Section 26(a)(1) of the Investment Company Act of 1940, as amended, and shall at
all times be a corporation or association organized and doing business under the
laws of any state or the United States of America, authorized under such laws to
exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $50,000,000 and a
rating on its unsecured long-term debt of at least "BBB" by S&P and "Baa2" by
Xxxxx'x (or at any time when there is no Fiscal Agent appointed and acting
hereunder or any such Fiscal Agent so appointed has a rating on its long-term
unsecured debt that is lower than "AA" by S&P and "Aa2" by Xxxxx'x (without
regard to any plus or minus or numeric qualifier) the rating on the unsecured
long term debt of the Trustee must be at least "AA" by S&P and "Aa2" by Xxxxx'x,
or meet different standards provided that each Rating Agency shall have
confirmed in writing that such different standards would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then-current ratings
assigned to the Certificates) and subject to supervision or examination by
federal or state authority and shall not be an Affiliate of the Servicer (except
during any period when the Trustee has assumed the duties of the Servicer
pursuant to Section 7.02). If a corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for purposes of this Section
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In the event that the place of business from which the Trustee
administers the Trust Fund is a state or local jurisdiction that imposes a tax
on the Trust Fund or the net income of a REMIC (other than a tax corresponding
to a tax imposed under the REMIC Provisions) the Trustee shall elect either to
(i) resign immediately in the manner and with the effect specified in Section
8.07, (ii) pay such tax and continue as Trustee or (iii) administer the Trust
Fund from a state and local jurisdiction that does not impose such a tax. 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.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Servicer, the Special Servicer and each Rating Agency. Upon such notice of
resignation, the Fiscal Agent shall also be deemed to have been removed and,
accordingly, the Servicer shall promptly appoint a successor Trustee, the
appointment of which would not, in and of itself, result in a downgrade,
qualification or withdrawal by any Rating Agency of the then-current ratings
assigned to the Certificates, and a successor Fiscal Agent (if necessary to
satisfy the requirements contained in Section 8.06), the appointment of which,
if the successor Trustee is not rated by each Rating Agency in one of its two
highest long-term debt rating categories, would not, in and of itself, result in
a downgrade, qualification or withdrawal by any Rating Agency of the
then-current ratings assigned to the Certificates, by written instrument, in
triplicate, which instrument shall be delivered to the resigning Trustee, with a
copy to the Fiscal Agent deemed removed, and the successor Trustee and successor
Fiscal Agent. If no successor Trustee and successor Fiscal Agent shall have been
so appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee and the Fiscal Agent may
petition any court of competent jurisdiction for the appointment of a successor
Trustee and successor Fiscal Agent.
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 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 upon a confirmation in writing by any Rating Agency that not
terminating the Trustee, or the Fiscal Agent, as applicable, would, in and of
itself, cause the then-current rating assigned to any Class of Certificates to
be qualified, withdrawn or downgraded, then the Depositor or the Servicer shall
remove the Trustee and the Fiscal Agent and the Servicer shall promptly appoint
a successor Trustee and successor Fiscal Agent by written instrument, which
shall be delivered to the Trustee and the Fiscal Agent so removed and to the
successor Trustee and the successor Fiscal Agent.
The Holders of Certificates entitled to at least 50% of the
Voting Rights may at any time remove the Trustee and the Fiscal Agent (and any
removal of the Trustee shall be deemed to be a removal also of the Fiscal Agent)
and appoint a successor Trustee and successor Fiscal Agent by written instrument
or instruments, in eight originals, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Servicer, one complete
set to the Trustee so removed, one complete set to the Fiscal Agent deemed
removed, one complete set to the successor Trustee so appointed and one complete
set to the successor Fiscal Agent so appointed.
In the event of removal of the Trustee, the Fiscal Agent shall
be deemed to have been removed.
In the event that the Trustee or Fiscal Agent 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
accrued or owing to it under this Agreement, plus interest at the Advance Rate
on all such amounts until received to the extent such amounts bear interest as
provided in this Agreement, with respect to periods prior to the date of such
termination or removal).
Any resignation or removal of the Trustee and Fiscal Agent and
appointment of a successor Trustee and, if such trustee is not rated at least
"AA" by each Rating Agency, a successor Fiscal Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee and, if necessary, successor Fiscal Agent
as provided in Section 8.08.
All reasonable costs and expenses of the Depositor or Servicer
and the successor Trustee incurred in connection with transferring the Mortgage
Files to the successor Trustee and amending this Agreement to reflect such
succession as successor Trustee and otherwise causing the transfer required
pursuant to this Section 8.07 shall be paid by the predecessor Trustee upon
presentation of reasonable documentation of such costs and expenses or if not
paid by such predecessor, after exercising reasonable diligence in attempting to
receive such compensation from the predecessor Trustee, then by the Trust Fund.
SECTION 8.08. Successor Trustee and Fiscal Agent.
(a) Any successor Trustee and any successor Fiscal Agent
appointed as provided in Section 8.07 shall execute, acknowledge and deliver to
the Depositor, to the Servicer and to the predecessor Trustee and predecessor
Fiscal Agent, as the case may be, instruments accepting their appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
and predecessor Fiscal Agent shall become effective and such successor Trustee
and successor Fiscal Agent, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee or
Fiscal Agent herein, provided that the appointment of such successor Trustee and
successor Fiscal Agent shall not, as evidenced in writing, result in a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates. The predecessor Trustee shall deliver to the successor Trustee
all Mortgage Files and related documents and statements held by it hereunder,
and the Depositor and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations. 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.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 8.08, the Depositor shall mail notice of the succession
of such Trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register. If the Depositor fails to mail such notice
within 10 days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of the
Depositor.
(b) Any successor Trustee or Fiscal Agent appointed pursuant
to this Agreement shall satisfy the eligibility requirements set forth in
Section 8.06 hereof.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation 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.
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 Depositor 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 (at the expense of the Trustee) 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 Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. Except as required by applicable law, the appointment of a
co-trustee or separate trustee shall not relieve the Trustee of its
responsibilities, obligations and liabilities hereunder. 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
Certificateholders of the appointment of co-trustee(s) or separate trustee(s)
shall be required under Section 8.08 hereof.
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 (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
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 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 solely at the direction of the Trustee.
No trustee under this Agreement shall be personally liable by
reason of any act or omission of any prior trustee under this Agreement. The
Depositor and the Trustee acting jointly may at any time accept the resignation
of or remove any separate trustee or co-trustee, or if the separate trustee or
co-trustee is an employee of the Trustee, the Trustee acting alone may accept
the resignation of or remove any separate trustee or co-trustee.
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. Every such instrument shall be filed with
the Trustee. 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. In no
event shall any such separate trustee or co-trustee be entitled to any provision
relating to the conduct of affecting the liability of or affording protection to
such separate trustee or co-trustee that imposes a standard of conduct less
stringent than that imposed by the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal
Agent.
(a) The Trustee hereby appoints ABN AMRO Bank N.V. as the
initial Fiscal Agent hereunder for the purposes of exercising and performing the
obligations and duties imposed upon the Fiscal Agent by Sections 3.24 and 4.06.
(b) The Fiscal Agent undertakes to perform such duties and
only such duties as are specifically set forth in Sections 3.24 and 4.06.
(c) No provision of this Agreement shall be construed to
relieve the Fiscal Agent from liability for its own negligent failure to act or
its own willful misfeasance or for a breach of a representation or warranty
contained herein; provided, however, that (i) the duties and obligations of the
Fiscal Agent shall be determined solely by the express provisions of Sections
3.24 and 4.06, the Fiscal Agent shall not be liable except for the performance
of such duties and obligations, no implied covenants or obligations shall be
read into this Agreement against the Fiscal Agent and, in the absence of bad
faith on the part of the Fiscal Agent, the Fiscal Agent may conclusively rely,
as to the truth and correctness of the statements or conclusions expressed
therein, upon any resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Fiscal Agent by the
Depositor, the Servicer, the Special Servicer or the Trustee and which on their
face do not contradict the requirements of this Agreement, and (ii) the
provisions of clause (ii) of Section 8.01(c) shall apply to the Fiscal Agent.
(d) Except as otherwise provided in Section 8.11(c), the
Fiscal Agent also shall have the benefit of provisions of clauses (i), (ii),
(iii) (other than the proviso thereto), (iv), (v) (other than the proviso
thereto) and (vi) of Section 8.02(a).
ARTICLE IX
TERMINATION
SECTION 9.01. Termination.
(a) The respective obligations and responsibilities of the
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created hereby with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as
hereinafter set forth) shall terminate immediately following the occurrence of
the last action required to be taken by the Trustee pursuant to this Article IX
on the Termination Date; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of twenty-one years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the United Kingdom, living on the date
hereof.
(b) The Trust Fund, the Upper-Tier REMIC and the Lower-Tier
REMIC shall be terminated and the assets of the Trust Fund shall be sold or
otherwise disposed of in connection therewith, only pursuant to a "plan of
complete liquidation" within the meaning of Code Section 860F(a)(4)(A) providing
for the actions contemplated by the provisions hereof pursuant to which the
applicable Notice of Termination is given and requiring that the Trust Fund, the
Upper-Tier REMIC and the Lower-Tier REMIC shall terminate on a Distribution Date
occurring not more than 90 days following the date of adoption of the plan of
complete liquidation. For purposes of this Section 9.01(b), the Notice of
Termination given pursuant to Section 9.01(c) shall constitute the adoption of
the plan of complete liquidation as of the date such notice is given, which date
shall be specified by the Trustee in the final federal income tax returns of the
Upper-Tier REMIC and the Lower-Tier REMIC. The Loan REMICs shall be terminated
in such a complete liquidation simultaneously with the Upper-Tier REMIC and the
Lower-Tier REMIC and in accordance with the provisions of the respective Loan
REMIC Declarations; provided, that any Loan REMIC shall terminate without
liquidation on any early Distribution Date following a Final Recovery
Determination or other payment in full with respect to the related Mortgage
Loan. Notwithstanding the termination of the Trust REMICs, the Loan REMICs or
the Trust Fund, the Trustee shall be responsible for filing the final Tax
Returns for the Trust REMICs and the Loan REMICs and applicable income tax or
information returns for the Grantor Trust for the period ending with such
termination, and shall retain books and records with respect to the Trust
REMICs, the Loan REMICs and the Grantor Trust for the same period of retention
for which it maintains its own tax returns or other reasonable period.
(c) The Depositor, and if the Depositor does not exercise the
option, the Special Servicer, and if neither the Depositor nor the Special
Servicer exercises the option, the Servicer and, if none of the Servicer, the
Special Servicer or the Depositor exercises the option, the holders of the Class
LR Certificates representing greater than a 50% Percentage Interest in such
Class may effect an early termination of the Trust Fund, upon not less than 30
days' prior Notice of Termination given to the Trustee and Servicer any time on
or after the Early Termination Notice Date specifying the Anticipated
Termination Date, on any Distribution Date on which the aggregate Stated
Principal Balance as of the day immediately prior to such Distribution Date of
the Mortgage Loans remaining in the Trust Fund is less than 1% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans and
REO Properties then included in the Trust Fund, and all other property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of
each Mortgage Loan (excluding any REO
Mortgage Loan) included in the Trust Fund as
of the last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of principal);
(B) the fair market value of all other
property (including any REO Property)
included in the Trust Fund as of the last
day of the month preceding such
Distribution Date, as determined by an
Independent appraiser acceptable to the
Servicer as of the date not more than 30
days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage
Loan (including for this purpose any
Mortgage Loan as to which title to the
related Mortgaged Property has been
acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable), to
the last day of the Collection Period
preceding such Distribution Date (less any
P&I Advances previously made on account of
principal);
(D) the aggregate amount of unreimbursed
Advances, with interest thereon, and unpaid
Trust Fund expenses;
(E) the Repurchase Return of Premium Amount;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all REO Property in the Trust Fund, on the last
day of the month preceding such Distribution Date, as
determined by an Independent Appraiser acceptable to
the Servicer, together with one month's interest
thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and Loan REMIC Residual Interest in complete liquidation of such Loan
REMIC.
All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to this Section 9.01(c) shall
be borne by the party exercising its purchase rights hereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to this subsection (c).
Anything in this Section 9.01 to the contrary notwithstanding,
the holders of the Class A-2, Class A-3, Class A-4, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M-1 and
Class M-2 Certificates shall receive that portion of the proceeds of a sale of
the assets of the Trust Fund allocable to Excess Interest, as their interests
may appear based upon their original Certificate Balances.
(d) If the Trust Fund has not been previously terminated
pursuant to subsection (c) of this Section 9.01, the Trustee shall determine as
soon as practicable the Distribution Date on which the Trustee reasonably
anticipates, based on information with respect to the Mortgage Loans previously
provided to it, that the final distribution will be made (i) to the Holders of
outstanding Regular Certificates, and to the Trustee in respect of the
Lower-Tier Regular Interests notwithstanding that such distribution may be
insufficient to distribute in full the Certificate Balance of each Certificate
or Lower-Tier Regular Interest, together with amounts required to be distributed
on such Distribution Date pursuant to Section 4.01(a), (b), (c) or (d) or (ii)
if no such Classes of Certificates are then outstanding, to the Holders of the
Class LR Certificates of any amount remaining in the Collection Account or the
Distribution Account, to the Holders of the Class R Certificates of any amount
remaining in the Upper-Tier Distribution Account, to the Holders of the Class
A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M-1 and Class M-2 Certificates their
allocable shares of any amount remaining in the Excess Interest Distribution
Account, and to the Holders of the Class X Certificates of any amount remaining
in the Repurchase Price Return of Premium Distribution Account, in each case,
following the later to occur of (A) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund or (B) the
liquidation or disposition pursuant to Section 3.18 of the last asset held by
the Trust Fund.
(e) Notice of any termination of the Trust Fund pursuant to
this Section 9.01 shall be mailed by the Trustee to affected Certificateholders
with a copy to the Servicer, the Special Servicer and each Rating Agency at
their addresses shown in the Certificate Registrar as soon as practicable after
the Trustee shall have received, given or been deemed to have received a Notice
of Termination but in any event not more than thirty days, and not less than ten
days, prior to the Anticipated Termination Date. The notice mailed by the
Trustee to affected Certificateholders shall:
(i) specify the Anticipated Termination Date on which the
final distribution is anticipated to be made to
Holders of Certificates of the Classes specified
therein;
(ii) specify the amount of any such final distribution,
if known; and
(iii) state that the final distribution to
Certificateholders will be made only upon
presentation and surrender of Certificates at the
office of the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because
of the failure of any Certificateholders to tender their Certificates shall be
set aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date 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 Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor Trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Class R Certificateholders. No interest shall accrue or
be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01. Any such amounts transferred to
the Trustee may be invested in Permitted Investments and all income and gain
realized from investment of such funds shall be for the benefit of the Trustee.
(g) The Holder of 100% of the Percentage Interests in the
Class LR Certificates or the most subordinate Class of Certificates outstanding
(other than the Class M-2 Certificates) may purchase any Mortgage Loan on its
Anticipated Repayment Date, if any, at a price equal to the sum of the
following:
(i) 100% of the outstanding principal balance of such
Mortgage Loan on such Anticipated Repayment Date
(less any P&I Advances previously made on account of
principal);
(ii) all unpaid interest accrued on such principal balance
of such Mortgage Loan at the Mortgage Rate thereof,
to the last day of the Interest Accrual Period
preceding such Anticipated Repayment Date (less any
P&I Advances previously made on account of interest);
(iii) the aggregate amount of all unreimbursed Advances
with respect to such Mortgage Loan, with interest
thereon at the Advance Rate, and unpaid Special
Servicing Compensation, Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(iv) the amount of any Liquidation Expenses incurred by
the Trust Fund in connection with such purchase;
provided, that, such Holder, at its expense, has provided the Trustee with an
Opinion of Counsel to the effect that such purchase would not (x) result in a
gain which would be subject to the tax on net income derived from "prohibited
transactions" imposed by Code Section 860F(a)(1) or otherwise result in the
imposition of any other tax on the Lower-Tier REMIC, the Upper-Tier REMIC or any
Loan REMIC under the REMIC Provisions or (y) cause the Upper-Tier REMIC, the
Lower-Tier REMIC or any Loan REMIC to fail to qualify as a REMIC; such opinion
relying upon appraisals of the fair market value (for the purposes of Section
860F(c)(1) of the Code) of such Mortgage Loan by at least three Independent
appraisers.
Notwithstanding the foregoing, such Mortgage Loan may not be
purchased if the fair market value of the Mortgage Loan is greater than 100% of
the outstanding principal balance of such Mortgage Loan.
The Holder of 100% of the most subordinate Class of Sequential
Certificates (provided that the Class M-2 Certificates shall not be considered a
Class for such purposes) may purchase any Mortgage Loan on or after its
Anticipated Repayment Date under the same terms and conditions hereunder as in
the case of a purchase by the Holder of the Class LR Certificates if the Holder
of the Class LR Certificates either (i) notifies the Holder of the most
subordinate Class of Sequential Certificates that it will not purchase such
Mortgage Loan or (ii) does not, in fact, purchase such Mortgage Loan on its
Anticipated Repayment Date.
The proceeds of any such purchase hereunder shall be deposited
in the Collection Account and disbursed as provided herein.
Notwithstanding anything to the contrary contained in this
Section 9.01(g), if the Class LR or most subordinate Class of Certificates shall
be held by an Affiliate of the Depositor, such Affiliate may not exercise any of
the purchase rights under this Section 9.01(g) with respect to a Mortgage Loan
that is in default.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts.
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 10.02. Limitation on Rights of Certificateholders.
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.
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 person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right 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 such Holder previously shall have
given to the Trustee a written notice of default and of the continuance thereof,
as hereinbefore provided, and unless also the Holders of Certificates
representing Percentage Interests of at least 25% of each affected Class of
Certificates shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates of any Class shall have any right in any
manner whatever by virtue of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Certificates of such Class. 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 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Notices.
All demands, notices and communications hereunder shall be in
writing, shall be deemed to have been given upon receipt (except that notices to
Holders of Class X-0, Xxxxx X-0, Class R and Class LR Certificates or Holders of
any Class of Certificates no longer held through a Depository and instead held
in registered, definitive form shall be deemed to have been given upon being
sent by first class mail, postage prepaid) as follows:
If to the Trustee, to:
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset-Backed Securities
Trust Services, CMAT 1999-C1
If to the Fiscal Agent, to:
ABN AMRO Bank, N.V.
c/o LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset-Backed Securities
Trust Services, CMAT 1999-C1
If to the Depositor, to:
Asset Securitization Corporation
2 World Financial Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxxxx
and to:
Asset Securitization Corporation
2 World Financial Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: General Counsel
and to:
Asset Securitization Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
With a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
If to the Servicer, to:
First Union National Bank
Charlotte Plaza, 23rd Floor
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Commercial Mortgage Asset Trust,
Commercial Mortgage
Pass-Through Certificates,
Series 1999-C1
With a copy to:
Xxxxx Xxxxx & Xxxxx
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx
If to the Special Servicer, to:
Lennar Partners, Inc.
000 X.X. 000xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
With copies to:
Bilzin Xxxxxxx Xxxx Price & Xxxxxxx LLP
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
If to either Mortgage Loan Seller, to:
The Capital Company of America LLC
2 World Financial Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxxxx
and to:
The Capital Company of America LLC
2 World Financial Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: General Counsel
and to:
The Capital Company of America LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
If to NHA, to:
Nomura Holding America, Inc.
2 World Financial Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxx Xxxxx
and to:
Nomura Holding America, Inc.
2 World Financial Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Legal Department
If to any Certificateholder, to:
the address set forth in the
Certificate Register,
If to the Underwriters, to:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxx
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx/Commercial Mortgage
Trading
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
SECTION 10.05. 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,
to the extent permitted by applicable law, such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
SECTION 10.06. Notice to the Depositor and Each Rating
Agency.
(a) The Trustee shall use its best efforts to promptly provide
notice to the Depositor, each Underwriter and each Rating Agency with respect to
each of the following of which a Responsible Officer of the Trustee 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 merger, consolidation, resignation or
termination of the Servicer, Special Servicer, the
Trustee or Fiscal Agent;
(iv) the repurchase of Mortgage Loans pursuant to
Section 2.03(d) or 2.03(e);
(v) the final payment to any Class of
Certificateholders;
(vi) any change in the location of the Collection
Account or the Distribution Account;
(vii) any event that would result in the voluntary or
involuntary termination of any insurance of the
accounts of the Servicer;
(viii) each report to Certificateholders described in
Section 4.02 and Section 3.22;
(ix) any change in the lien priority of a Mortgage Loan;
(x) any new lease of an anchor or a termination of an
anchor lease at a retail Mortgaged Property;
(xi) any termination of licensing certification at a
Mortgaged Property securing a Senior
Housing/Healthcare Loan;
(xii) any material damage to a Mortgaged Property;
(xiii) any amendment, modification, consent or waiver to
or of any provision of a Mortgage Loan; and
(xiv) any substitution or release of collateral hereunder.
(b) The Servicer shall promptly furnish to each Rating Agency
(and to the Special Servicer with respect to clause (iii) and (iv) below) copies
of the following:
(i) each of its annual statements as to compliance
described in Section 3.14;
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.15;
(iii) a copy of each rent roll and each operating and
other financial statement and occupancy reports, to
the extent such information is required to be
delivered under a Mortgage Loan, in each case to
the extent collected pursuant to Section 3.03;
however, with respect to S&P, the Servicer shall
provide only the quarterly and annual statements or
reports; and
(iv) a copy of any notice with respect to a breach of a
representation or warranty with respect to any
Mortgage Loan.
(c) The Servicer shall furnish each Rating Agency, each
Underwriter and the Depositor with such information with respect to the Trust
Fund, a Mortgaged Property, a Borrower and any Mortgage Loan as such Rating
Agency, such Underwriter or the Depositor shall reasonably request and which the
Servicer can reasonably obtain without undue cost. The Servicer may request
reimbursement, for its reasonable copying costs with respect to such
information, from the requesting party (other than the Rating Agencies). The
Rating Agencies shall not be charged any fee or expense in connection therewith.
The Servicer shall send copies to the Depositor of any information provided to
any Rating Agency.
(d) Notices to each Rating Agency shall be addressed as
follows:
Standard & Poor's Rating Services
Division of The McGraw Hill Companies
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Managing Director
Commercial Mortgage-Backed Securities
or in each case to such other address as either Rating Agency shall specify by
written notice to the parties hereto. In addition, with respect to any request
for Rating Agency confirmation pursuant to any of the provisions of this
Agreement, the party seeking such Rating Agency confirmation shall deliver a
copy of such request to the Depositor.
SECTION 10.07. Amendment.
This Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders, (i)
to cure any ambiguity, (ii) to correct or supplement any provisions herein or
therein that may be defective or inconsistent with any other provisions herein
or therein, (iii) to amend any provision hereof to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions herein or therein that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, (v) to
amend or supplement any provision hereof to the extent necessary to reallocate
any responsibilities or rights as between the Servicer and the Special Servicer,
upon confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates or (vi) to make any other
provisions with respect to matters or questions arising under this Agreement,
which shall not be inconsistent with the provisions of this Agreement and will
not result in a downgrade, qualification or withdrawal of the then-current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
This Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
representing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment 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 Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under this Agreement, without the
consent of the Holders of all Certificates
representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii) alter the Servicing Standard or the obligations of
the Servicer, the Special Servicer, the Trustee or
the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all
Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby;
or
(iv) amend any section hereof which relates to the
amendment of this Agreement without the consent of
all the holders of all Certificates representing all
Percentage Interests of the Class or Classes affected
thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend this Agreement to modify, eliminate
or add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMICs as two separate REMICs, of the Loan REMICs
as three separate REMICs and of the portion of the Trust Fund exclusive of the
Trust REMICs as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
In the event that neither the Depositor nor any successor
thereto, if any, is in existence, any amendment under this Section 10.07 shall
be effective with the consent of the Trustee, the Fiscal Agent, the Special
Servicer and the Servicer, in writing, and to the extent required by this
Section, the Certificateholders. Promptly after the execution of any amendment,
the Servicer shall forward to the Trustee and the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder and
each Rating Agency.
It shall not be necessary for the consent of
Certificateholders under this Section 10.07 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The method 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; provided,
however, that such method shall always be by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no
amendment shall be made to this Agreement or any Custodial Agreement unless, if
requested by the Servicer and/or the Trustee, the Servicer and the Trustee shall
have received an Opinion of Counsel, at the expense of the party requesting such
amendment (or, if such amendment is required by either Rating Agency to maintain
the rating issued by it or requested by the Trustee for any purpose described in
clause (i) or (ii) of the first sentence of this Section, then at the expense of
the Trust Fund), to the effect that such amendment will not cause the Upper-Tier
REMIC, Lower-Tier REMIC or any Loan REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding, cause a tax to be imposed on the
Trust Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property) or cause the portion
of the Trust Fund exclusive of the Trust REMICs to fail to qualify as a grantor
trust.
Prior to the execution of any amendment to this Agreement or
any Custodial Agreement, the Trustee, the Fiscal Agent, the Special Servicer and
the Servicer may request and shall be entitled to rely conclusively upon an
Opinion of Counsel, at the expense of the party requesting such amendment (or,
if such amendment is required by either Rating Agency to maintain the rating
issued by it or requested by the Trustee for any purpose described in clause
(i), (ii), (iii) or (v) (which do not modify or otherwise relate solely to the
obligations, duties or rights of the Trustee) of the first sentence of this
Section, then at the expense of the Trust Fund) stating that the execution of
such amendment is authorized or permitted by this Agreement. The Trustee and the
Fiscal Agent may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's or the Fiscal Agent's own rights, duties or
immunities under this Agreement.
SECTION 10.08. Confirmation of Intent.
It is the express intent of the parties hereto that the
conveyance of the Trust Fund (including the Mortgage Loans) by the Depositor to
the Trustee on behalf of Certificateholders as contemplated by this Agreement
and the sale by the Depositor of the Certificates be, and be treated for all
purposes as, a sale by the Depositor of the undivided portion of the beneficial
interest in the Trust Fund represented by the Certificates. It is, further, not
the intention of the parties that such conveyance be deemed a pledge of the
Trust Fund by the Depositor to the Trustee to secure a debt or other obligation
of the Depositor. However, in the event that, notwithstanding the intent of the
parties, the Trust Fund is held to continue to be property of the Depositor then
(a) this Agreement shall also be deemed to be a security agreement under
applicable law; (b) the transfer of the Trust Fund provided for herein shall be
deemed to be a grant by the Depositor to the Trustee on behalf of
Certificateholders of a first priority security interest in all of the
Depositor's right, title and interest in and to the Trust Fund and all amounts
payable to the holders of the Mortgage Loans in accordance with the terms
thereof and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, including,
without limitation, all amounts from time to time held or invested in the
Collection Account, the Distribution Account, Upper-Tier Distribution Account,
Excess Interest Distribution Account and Repurchase Price Return of Premium
Distribution Account whether in the form of cash, instruments, securities or
other property; (c) the possession by the Trustee (or the Custodian on its
behalf) of Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the Delaware and Illinois Uniform Commercial Code; and (d)
notifications to Persons holding such property, and acknowledgments, receipts or
confirmations from Persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Any assignment of the
interest of the Trustee pursuant to any provision hereof shall also be deemed to
be an assignment of any security interest created hereby. The Depositor shall,
and upon the request of the Servicer, the Trustee shall, to the extent
consistent with this Agreement (and at the expense of the Trust Fund), take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement. It is
the intent of the parties that such a security interest would be effective
whether any of the Certificates are sold, pledged or assigned.
SECTION 10.09. Xxxxxx Act.
Any provisions required to be contained in this Agreement by
Section 126 and/or Section 130-k or Article 4-A of the New York Real Property
Law are hereby incorporated herein, and such provisions shall be in addition to
those conferred or imposed by this Agreement; provided, however, that to the
extent that such Section 126 and/or Section 130-k shall not have any effect, and
if said Section 126 and/or Section 130-k should at any time be repealed or cease
to apply to this Agreement or be construed by judicial decision to be
inapplicable, said Section 126 and/or Section 130-k shall cease to have any
further effect upon the provisions of this Agreement. In case of a conflict
between the provisions of this Agreement and any mandatory provisions of Article
4-A of the New York Real Property Law, such mandatory provisions of said Article
4-A shall prevail, provided that if said Article 4-A shall not apply to this
Agreement, should at any time be repealed, or cease to apply to this Agreement
or be construed by judicial decision to be inapplicable, such mandatory
provisions of such Article 4-A shall cease to have any further effect upon the
provisions of this Agreement.
SECTION 10.10. Intended Third-Party Beneficiaries.
Xxxxxxx, Sachs & Co., Xxxxxx Brothers Inc. Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation and Nomura Securities International, Inc. are
intended to be third-party beneficiaries hereunder. No other Person other than a
party to this Agreement and any Certificateholder shall have any rights with
respect to the enforcement of any of the rights or obligations hereunder.
Without limiting the foregoing, the parties to this Agreement specifically state
that no Borrower, property manager or other party to a Mortgage Loan is an
intended third-party beneficiary of this Agreement.
IN WITNESS WHEREOF, the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized all as of the day
and year first above written.
Signed and acknowledged ASSET SECURITIZATION CORPORATION,
in the presence of as Depositor
/s/ Xxx Xxxxxx
-----------------------------------
Print Name: Xxx Xxxxxx
By: /s/ Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx ------------------------------
----------------------------------- Name: Xxxxxx X. Xxxxxxxx
Print Name: Xxxxxxx Xxxxxxxx Title: Director
Signed and acknowledged FIRST UNION NATIONAL BANK,
in the presence of as Servicer
/s/ Peta-Gay Xxxxxx
------------------------------------ By: /s/ Xxxxxxx X. Xxxx
Print Name: Peta-Gay Xxxxxx ------------------------------
__________________________________ Name: Xxxxxxx X. Xxxx
Print Name: Title: Vice President
Signed and acknowledged LENNAR PARTNERS, INC.,
in the presence of as Special Servicer
__________________________________ By: /s/ Xxxxxx Xxxxx
Print Name: -----------------------------------
Name: Xxxxxx Xxxxx
__________________________________ Title: Vice President
Print Name:
Signed and acknowledged LASALLE NATIONAL BANK,
in the presence of: as Trustee, Custodian, Certificate
Registrar and Paying Agent
__________________________________
Print Name:
By: /s/ Xxxx X. Xxxxxxxx
__________________________________ ------------------------------
Print Name: Name: Xxxx X. Xxxxxxxx
Title: Assistant Vice
President
Signed and acknowledged ABN AMRO Bank N.V.,
in the presence of as Fiscal Agent
__________________________________
Print Name: By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
__________________________________ Name: Xxxxxx X. Xxxxxx
Print Name: Title: Group Vice President
Signed and acknowledged By: /s/ Xxxxxxx X. Xxxxxx
in the presence of ------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
__________________________________
Print Name:
__________________________________
Print Name:
ACCEPTED AND AGREED TO SOLELY
WITH RESPECT TO SECTION 3.28(c)
THE CAPITAL COMPANY OF AMERICA LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 25th day of March, 1999, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared Xxxxxx X. Xxxxxxxx, to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at Two World Financial Center,
New York, New York; that s/he is the Director of ASSET SECURITIZATION
CORPORATION, a Delaware corporation, the corporation described in and that
executed the foregoing instrument; and that s/he signed her/his name thereto
under authority of the board of directors of said corporation and on behalf of
such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Nez Mustafic
-----------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expies. 4/14/99
(stamp)
(seal)
This instrument prepared by:
__________________________________
Name: Cadwalader, Xxxxxxxxxx & Xxxx
Address: 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 25th day of March, 1999, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared Xxxxxxx X. Xxxx, to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, XX; that s/he is the Vice President; of FIRST UNION NATIONAL BANK,
the corporation described in and that executed the foregoing instrument; and
that he/she signed his/her name thereto under authority of the board of
directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxxxx Xxxxxx
-----------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expies. 4-7-2000
(stamp)
(seal)
This instrument prepared by:
__________________________________
Name: Cadwalader, Xxxxxxxxxx & Xxxx
Address: 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
On this 25 day of March, 1999, before me, the undersigned, a Notary Public
in and for the State of Florida, duly commissioned and sworn, personally
appeared Xxxxxx Xxxxx, to me known who, by me duly sworn, did depose and
acknowledge before me and say that he resides at 000 XX 000xx Xxxxxx, Xxxxx,
Xxxxxxx; that he is the Vice President of LENNAR PARTNERS, INC., the company
described in and that executed the foregoing instrument; and that he/she signed
his/her name thereto under authority of the board of directors of said
corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expires. 7-23-2001
(stamp)
(seal)
This instrument prepared by:
__________________________________
Name: Cadwalader, Xxxxxxxxxx & Xxxx
Address: 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On this 25th day of March, 1999, before me, the undersigned, a Notary
Public in and for the State of Illinois, duly commissioned and sworn, personally
appeared Xxxx X. Xxxxxxxx, to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at 000 Xxxxx XxXxxxx Xxxxxx;
that s/he is a Assistant Vice President of LASALLE NATIONAL BANK, a nationally
chartered bank, the corporation described in and that executed the foregoing
instrument; and that he/her signed his/her name thereto under authority of the
board of directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expires. 12-01-2001
(stamp)
(seal)
This instrument prepared by:
__________________________________
Name: Cadwalader, Xxxxxxxxxx & Xxxx
Address: 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX
On this 25th day of March, 1999, before me, the undersigned, a Notary
Public in and for the State of Illinois, duly commissioned and sworn, personally
appeared Xxxxxxx X. Xxxxxx, to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx; that s/he is a Group V.P. of ABN AMRO BANKN.V., a nationally
chartered bank, the corporation described in and that executed the foregoing
instrument; and that s/he signed her/his name thereto under authority of the
board of directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expires. 12-01-2001
(stamp)
(seal)
This instrument prepared by:
__________________________________
Name: Cadwalader, Xxxxxxxxxx & Xxxx
Address: 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On this 25th day of March, 1999, before me, the undersigned, a Notary
Public in and for the State of Illinois, duly commissioned and sworn, personally
appeared Xxxxxx X. Xxxxxx, to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx; that s/he is a Group Vice President of ABN AMRO BANK N.V., a
nationally chartered bank, the corporation described in and that executed the
foregoing instrument; and that s/he signed her/his name thereto under authority
of the board of directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expires. 12-01-2001
(stamp)
(seal)
This instrument prepared by:
__________________________________
Name: Cadwalader, Xxxxxxxxxx & Xxxx
Address: 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 25th day of March, 1999, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared Xxxxxx X. Xxxxxxxx, to me known who, by me duly sworn, did depose and
acknowledge before me and say that she resides at Two World Financial Center;
that she is a Director of The Capital Company of America LLC, a Delaware limited
liability company, the company described in and that executed the foregoing
instrument; and that she signed her name thereto under authority of the board of
members of said company and on behalf of such company.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxx X. Xxxxx
------------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
_____________________________
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C1 CLASS A-1
Pass-Through Rate: [__________]%
First Distribution Date: Cut-off Date: March 11, 1999
April 19, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1 Certificates: January 17, 2032
$[400,000,000]
CUSIP: 201730 AA 6 ISIN: US201730AA66
Common Code: [__________] Initial Certificate
Balance of this Certificate:
$[___________]
No.: A-1-
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily properties and held in trust by the Trustee
and serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans
are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are Class A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class
E, Class X, Class F, Class G, Class H, Class J, Class K, Class L, Class M-1,
Class M-2, Class R and Class LR Certificates (together with the Class A-1
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 11, 1999
(the "Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, First Union National Bank, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the seventeenth day
of each month (each such date, a "Distribution Date"); provided, that if the
seventeenth day of any month is not a Business Day, the Distribution Date shall
be the following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class A-1 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class A-1 Certificates will be calculated based on a 360-day
year consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" with respect to any Distribution Date commences on and includes
the eleventh day of the month preceding the month in which such Distribution
Date occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Trustee shall mail a
second notice to the remaining Certificateholders, at their last addresses shown
in the Certificate Register, to surrender their Certificates for cancellation in
order to receive, from such funds held, the final distribution with respect
thereto. If within one year after the second notice any Certificate shall not
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Trustee all amounts distributable to the Holders thereof, and
the Trustee shall thereafter hold such amounts for the benefit of such Holders
until the earlier of (i) its termination as Trustee under the Pooling and
Servicing Agreement and the transfer of such amounts to a successor Trustee or
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class R Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv)
all revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) any environmental indemnity
agreements relating to the Mortgaged Properties; (x) the rights and remedies
under the Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase
Agreement; and (xi) the proceeds of any of the foregoing. As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling
and Servicing Agreement or the obligations of the
Servicer, the Special Servicer, the Trustee or the
Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all
Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby;
or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMIC as two separate
REMICs, of the Loan REMICs as three separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the
option, the Special Servicer and, if neither the Special Servicer nor the
Depositor exercises the option, the Servicer and, if the Depositor, the Special
Servicer or the Servicer do not exercise their respective option, the Holders of
the Class LR Certificates representing greater than a 50% Percentage Interest in
such Class may effect an early termination of the Trust Fund, upon not less than
30 days' prior Notice of Termination given to the Trustee and Servicer any time
on or after the Early Termination Notice Date (defined as any date as of which
the aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0%
of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date) specifying the Anticipated Termination Date, on any Distribution
Date on which the aggregate Stated Principal Balance of the Mortgage Loans
remaining in the Trust Fund is less than 1% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and REO Property then included
in the Trust Fund, and all property acquired in respect of any Mortgage Loan, at
a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of
each Mortgage Loan included in the Trust
Fund as of the last day of the month
preceding such Distribution Date (less any
P&I Advances previously made on account of
principal);
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date (less
any P&I Advances previously made on account
of interest);
(D) the aggregate amount of unreimbursed
Advances, with interest thereon and unpaid
Trust Fund expenses;
(E) the Repurchase Price Return of Premium
Amount; and
(ii) the aggregate fair market value of the Mortgage Loans
and all REO Property in the Trust Fund, on the last
day of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer, together with one month's interest
thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and Loan REMIC Residual Interest in complete liquidation of such Loan
REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the repurchase of the Mortgage
Loans by the Depositor, the Servicer, the Special Servicer or the Holders of the
Class LR Certificates as described above; or (ii) the later of (a) the receipt
or collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class A-1
Certificate to be duly executed.
Dated: March __, 1999.
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
_____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-1 Certificates referred to in the
Pooling and Servicing Agreement.
Dated: March __, 1999.
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
_____________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto ________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Class A-1 Certificate of the entire Percentage Interest represented by the
within Class A-1 Certificates to the above-named Assignee(s) and to deliver such
Class A-1 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
__________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
________________________________________________________________________________
for the account of ___________________________________________________________
account number ___________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
___________________________________________
___________________________________________
[Please print or type name(s)]
___________________________________________
Title
___________________________________________
Taxpayer Identification Number
EXHIBIT A-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS A-2 CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND CERTAIN OTHER ASSETS.
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C1, CLASS A-2
Pass-Through Rate: [__________]%
First Distribution Date: Cut-off Date: March 11, 1999
April 19, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-2 Certificates: January 17, 2032
$[930,000,000]
CUSIP: 201730 AB 4 ISIN: US201730AB40
Common Code: [__________] Initial Certificate
Balance of this Certificate:
$[__________]
No.: A-2-
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily properties and held in trust by the Trustee
and serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans
are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-3, Class A-4, Class B, Class C, Class D,
Class E, Class X, Class F, Class G, Class H, Class J, Class K, Class L, Class
M-1, Class M-2, Class R and Class LR Certificates (together with the Class A-2
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 11, 1999
(the "Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, First Union National Bank, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the seventeenth day
of each month (each such date, a "Distribution Date"); provided, that if the
seventeenth day of any month is not a Business Day, the Distribution Date shall
be the following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class A-2 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class A-2 Certificates will be calculated based on a 360-day
year consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" with respect to any Distribution Date commences on and includes
the eleventh day of the month preceding the month in which such Distribution
Date occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Trustee shall mail a
second notice to the remaining Certificateholders, at their last addresses shown
in the Certificate Register, to surrender their Certificates for cancellation in
order to receive, from such funds held, the final distribution with respect
thereto. If within one year after the second notice any Certificate shall not
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Trustee all amounts distributable to the Holders thereof, and
the Trustee shall thereafter hold such amounts for the benefit of such Holders
until the earlier of (i) its termination as Trustee under the Pooling and
Servicing Agreement and the transfer of such amounts to a successor Trustee or
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class R Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv)
all revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) any environmental indemnity
agreements relating to the Mortgaged Properties; (x) the rights and remedies
under the Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase
Agreement; and (xi) the proceeds of any of the foregoing. As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling
and Servicing Agreement or the obligations of the
Servicer, the Special Servicer, the Trustee or the
Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all
Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby;
or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMIC as two separate
REMICs, of the Loan REMICs as three separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the
option, the Special Servicer and, if neither the Servicer nor the Depositor
exercises the option, the Servicer and, if the Depositor, Special Servicer or
the Servicer do not exercise their respective option, the Holders of the Class
LR Certificates representing greater than a 50% Percentage Interest in such
Class may effect an early termination of the Trust Fund, upon not less than 30
days' prior Notice of Termination given to the Trustee and Servicer any time on
or after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of
each Mortgage Loan included in the Trust
Fund as of the last day of the month
preceding such Distribution Date (less any
P&I Advances previously made on account of
principal);
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date (less
any P&I Advances previously made on account
of interest);
(D) the aggregate amount of unreimbursed
Advances, with interest thereon and unpaid
Trust Fund expenses;
(E) the Repurchase Price Return of Premium
Amount; and
(ii) the aggregate fair market value of the Mortgage Loans
and all REO Property in the Trust Fund, on the last
day of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer, together with one month's interest
thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and Loan REMIC Residual Interest in complete liquidation of such Loan
REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the repurchase of the Mortgage
Loans by the Depositor, the Servicer, the Special Servicer or the Holders of the
Class LR Certificates as described above; or (ii) the later of (a) the receipt
or collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class A-2
Certificate to be duly executed.
Dated: March __, 1999.
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-2 Certificates referred to in the
Pooling and Servicing Agreement.
Dated: March __, 1999.
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto_________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Class A-2 Certificate of the entire Percentage Interest represented by the
within Class A-2 Certificates to the above-named Assignee(s) and to deliver such
Class A-2 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
______________________________________________
Signature by or on behalf of
Assignor(s)
______________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_____________________________________________________________________________for
the account of _______________________________________________________________
account number _________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
__________________________________________
__________________________________________
[Please print or type name(s)]
__________________________________________
Title
__________________________________________
Taxpayer Identification Number
EXHIBIT A-3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS A-3 CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND CERTAIN OTHER ASSETS.
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C1, CLASS A-3
Pass-Through Rate: [__________]%
First Distribution Date: Cut-off Date: March 11, 1999
April 19, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-3 Certificates: January 17, 2032
$[368,115,000]
CUSIP: 201730 AC 2 ISIN: US201730AC23
Common Code: [__________] Initial Certificate
Balance of this Certificate:
$[__________]
No.: A-3-
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-3 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily properties and held in trust by the Trustee
and serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans
are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-4, Class B, Class C, Class D,
Class E, Class X, Class F, Class G, Class H, Class J, Class K, Class L, Class
M-1, Class M-2, Class R and Class LR Certificates (together with the Class A-3
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 11, 1999
(the "Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, First Union National Bank, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the seventeenth day
of each month (each such date, a "Distribution Date"); provided, that if the
seventeenth day of any month is not a Business Day, the Distribution Date shall
be the following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class A-3 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class A-3 Certificates will be calculated based on a 360-day
year consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" with respect to any Distribution Date commences on and includes
the eleventh day of the month preceding the month in which such Distribution
Date occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Trustee shall mail a
second notice to the remaining Certificateholders, at their last addresses shown
in the Certificate Register, to surrender their Certificates for cancellation in
order to receive, from such funds held, the final distribution with respect
thereto. If within one year after the second notice any Certificate shall not
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Trustee all amounts distributable to the Holders thereof, and
the Trustee shall thereafter hold such amounts for the benefit of such Holders
until the earlier of (i) its termination as Trustee under the Pooling and
Servicing Agreement and the transfer of such amounts to a successor Trustee or
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class R Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv)
all revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) any environmental indemnity
agreements relating to the Mortgaged Properties; (x) the rights and remedies
under the Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase
Agreement; and (xi) the proceeds of any of the foregoing. As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling
and Servicing Agreement or the obligations of the
Servicer, the Special Servicer, the Trustee or the
Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all
Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby;
or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMIC as two separate
REMICs, of the Loan REMICs as three separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the
option, the Special Servicer and, if neither the Special Servicer nor the
Depositor exercises the option, the Servicer and, if the Depositor, the Special
Servicer or the Servicer do not exercise their respective option, the Holders of
the Class LR Certificates representing greater than a 50% Percentage Interest in
such Class may effect an early termination of the Trust Fund, upon not less than
30 days' prior Notice of Termination given to the Trustee and Servicer any time
on or after the Early Termination Notice Date (defined as any date as of which
the aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0%
of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date) specifying the Anticipated Termination Date, on any Distribution
Date on which the aggregate Stated Principal Balance of the Mortgage Loans
remaining in the Trust Fund is less than 1% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and REO Property then included
in the Trust Fund, and all property acquired in respect of any Mortgage Loan, at
a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of
each Mortgage Loan included in the Trust
Fund as of the last day of the month
preceding such Distribution Date (less any
P&I Advances previously made on account of
principal);
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date (less
any P&I Advances previously made on account
of interest);
(D) the aggregate amount of unreimbursed
Advances, with interest thereon and unpaid
Trust Fund expenses;
(E) the Repurchase Price Return of Premium
Amount; and
(ii) the aggregate fair market value of the Mortgage Loans
and all REO Property in the Trust Fund, on the last
day of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer, together with one month's interest
thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and Loan REMIC Residual Interest in complete liquidation of such Loan
REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the repurchase of the Mortgage
Loans by the Depositor, the Servicer, the Special Servicer or the Holders of the
Class LR Certificates as described above; or (ii) the later of (a) the receipt
or collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class A-3
Certificate to be duly executed.
Dated: March __, 1999.
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
__