ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT, dated as of February 1, 1999, by and
between ICCMAC MULTIFAMILY AND COMMERCIAL TRUST 1999-1, a Delaware business
trust (the "Trust"), and IMPERIAL CREDIT COMMERCIAL ASSET MANAGEMENT CORP., a
California corporation (the "Administrator").
W I T N E S S E T H :
WHEREAS, the Trust was established pursuant to the Deposit Trust
Agreement between the Depositor and the Owner Trustee;
WHEREAS, the Trust is issuing the Bonds pursuant to the Indenture between
the Trust and the Indenture Trustee, for the benefit of Holders of the Bonds;
WHEREAS, pursuant to the Indenture, the Trust is required to perform
certain duties in connection with the Bonds and the Collateral pursuant to the
Indenture;
WHEREAS, the Trust desires to have the Administrator perform certain
duties of the Trust referred to in the Indenture and to provide such additional
services consistent with the terms of this Administration Agreement as the Trust
may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Trust and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Definitions. Whenever used in this Administration Agreement, including
in the first paragraph and in the recitals, all capitalized terms not defined
herein shall have the meaning specified in Annex 1 hereto, unless the context
requires otherwise.
2. Duties of the Administrator.
(a) Duties with Respect to the Indenture.
The Administrator agrees to perform all its duties as Administrator and
certain of the duties of the Trust under the Indenture. The Administrator shall
monitor the performance by the Trust of its duties under the Indenture and shall
advise the Owner Trustee when action is necessary to comply with the Trust's
duties under the Indenture. The Administrator shall prepare (or cause to be
prepared) for execution by the Owner Trustee on behalf of the Trust, all
documents, reports, filings, instruments, certificates and opinions that the
Trust is required to prepare, file or deliver pursuant to the Indenture and the
Deposit Trust Agreement. In furtherance of the foregoing, the Administrator
shall take all appropriate action that the Trust is required to take pursuant to
the Trust's obligations under the following sections of the Indenture: 2.02(e),
2.04(a), 2.04(b), 2.04(c), 2.05(b), 2.05(c), 2.06, 2.07(a), 2.09, 2.10(a), 2.11,
2.12(c), 3.01, 3.02, 3.06, 3.07, 3.08, 3.09, 3.12, 3.15(a), 3.15(b), 4.01(c),
5.16(b), 6.09(b), 6.09(c), 6.09(f), 6.10, 6.13(a), 6.14, 7.04, 8.02, 8.03(a),
9.01, 9.02, 9.04, 10.01(e), 14.04 and 14.15; except any such duties that (i)
constitute Non-Ministerial Matters (as defined and described in Section 2(d) of
this Administration Agreement), or (ii) constitute payment obligations of the
Issuer (it being understood and agreed that the Administrator in its individual
capacity shall not be responsible for any payment obligations of the Issuer).
(b) Duties with Respect to the Deposit Trust Agreement.
The Administrator shall take all appropriate action that the Owner
Trustee is required to take pursuant to the Owner Trustee's obligations under
Sections 4.4 and 6.6 of the Deposit Trust Agreement.
(c) Performance of Duties.
(i) In carrying out the duties of the Trust under the Indenture and any
of its other obligations under this Administration Agreement, the Administrator
may enter into transactions or otherwise deal with any of its Affiliates;
provided, however, that the terms of any such transactions or dealings shall be
in accordance with any directions received from the Owner Trustee on behalf of
the Trust and shall be on terms and conditions that are, in the Administrator's
judgment, no less favorable to the Trust than would be available from
Unaffiliated Parties.
(ii) In carrying out any of its obligations under this Administration
Agreement, the Administrator may act either directly or through agents,
attorneys, accountants, independent contractors and auditors and enter into
agreements with any of them.
(d) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not be under any
obligation to take any action, and in any event shall not take any action unless
the Administrator shall have received instructions from the Owner Trustee or
from the Ownership Certificateholder. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Trust and the
compromise or settlement of any action, claim or lawsuit
brought by or against the Trust;
(C) the involvement in any lawsuit or other legal action against
the Indenture Trustee, including, without limitation,
consenting to the settlement of any third party claim by the
Indenture Trustee;
(D) exercising discretion with respect to any action or proposed
action in connection with the Mortgage Loans to the extent the
Trust has the right to exercise such discretion under the
terms of the Servicing Agreement;
(E) the appointment of successor Indenture Trustees pursuant to
the Indenture;
(F) the removal of the Owner Trustee;
(G) the removal of the Indenture Trustee; and
(H) any action that the Issuer is entitled but not obligated to
take under the Indenture;
provided that, notwithstanding the foregoing, the Administrator may, with the
consent of the Owner Trustee or Ownership Certificateholder, take any action
with respect to Non-Ministerial Matters that the Administrator, in its good
faith judgment, deems to be in the best interests of the Trust. The
Administrator shall be entitled to be reimbursed by the Trust for any expenses
or liabilities incurred without willful misconduct, bad faith or gross
negligence in connection with Non-Ministerial Matters.
(ii) Notwithstanding anything to the contrary in this Administration
Agreement, the Administrator shall not be obligated to, and shall not, take any
action on behalf of the Trust that the Trust directs the Administrator not to
take on its behalf.
(e) Additional Duties. In accordance with directions received from the
Trust, the Administrator shall administer, perform or supervise the performance
of such other activities in connection with the Operative Agreements (other than
any payment obligations) as are not covered by any of the foregoing provisions
and as are expressly requested by the Trust and are reasonably within the
capability of the Administrator. In accordance therewith, the Administrator
agrees to fulfill the obligations of the Issuer under Section 13.12 of the
Servicing Agreement.
3. Records. The Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Trust, the Depositor and the
Ownership Certificateholder at any time during normal business hours.
4. Compensation. As compensation for the performance of the
Administrator's obligations under this Administration Agreement, the
Administrator shall be entitled to the Administration Fee and interest and
investment income earned on funds held on deposit in the Bond Account from time
to time, which interest and income shall be payable as provided under the
Indenture. The Administrator may, subject to and in accordance with the terms of
the Indenture, direct the Indenture Trustee to invest funds on deposit in the
Bond Account from time to time and shall, in accordance with the Indenture,
deposit into the Bond Account an amount sufficient to cover any losses in
respect of the funds so invested promptly following the occurrence of each such
loss, if any.
5. Independence of the Administrator. For all purposes of this
Administration Agreement, the Administrator shall be an independent contractor
and shall not be subject to the supervision of the Trust, the Owner Trustee, the
Ownership Certificateholder or the Indenture Trustee with respect to the manner
in which it performs its obligations hereunder. Except to the extent expressly
set forth herein or otherwise authorized by the Trust, the Administrator shall
not have any authority to act for or represent the Trust, the Owner Trustee, the
Ownership Certificateholder or the Indenture Trustee in any way and shall not
otherwise be deemed an agent of the Trust or the Indenture Trustee.
6. No Joint Venture. Nothing contained in this Administration Agreement
(i) shall constitute the Administrator and the Trust, the Owner Trustee, the
Ownership Certificateholder, the Indenture Trustee or the Depositor as members
of any partnership, joint venture, association, syndicate, unincorporated
business or other separate entity, (ii) shall be construed to impose on any of
them liability as such a member or (iii) shall be deemed to confer on any of
them any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
7. Other Activities of the Administrator. Nothing herein shall prohibit
the Administrator or its Affiliates from (in its or their sole discretion)
engaging in other businesses or from acting in a similar capacity as a general
administrator or manager for any other person or entity, even though such Person
or entity may engage in business activities similar to those of the Trust, the
Owner Trustee or the Indenture Trustee.
8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Administration Agreement shall continue in force until the
dissolution, liquidation or other termination of the Trust, upon which event
this Administration Agreement shall automatically terminate.
(b) The Administrator may at any time resign from the obligations and
duties hereby imposed on it, subject to the provisions of this Section 8.
(c) Subject to Section 8(e) of this Administration Agreement, the Trust
may remove the Administrator without cause by providing the Administrator with
at least 60 days' prior written notice.
(d) Subject to Section 8(e) of this Administration Agreement, at the sole
option of the Trust, the Administrator may be removed immediately upon written
notice of termination from the Trust to the Administrator if any of the
following events shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Administration Agreement and, after notice of such
default, shall not cure such default within ten (10) days (or, if such
default cannot be cured in such time, shall not give within ten (10) days
such assurance of cure as shall be reasonably satisfactory to the Owner
Trustee on behalf of the Trust);
(ii) a court having jurisdiction over the property of the
Administrator shall enter a decree or order for relief, and such decree or
order shall not have been vacated within 60 days, in respect of the
Administrator in any involuntary case under any applicable bankruptcy,
insolvency or other similar Law now or hereafter in effect or appoint a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property or
order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar Law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such Law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official
for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial
part of its property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts generally as they become
due.
The Administrator agrees that if any of the events specified in clauses (ii) or
(iii) of this Section shall occur, it shall give written notice thereof to the
Trust, the Owner Trustee and the Indenture Trustee within seven (7) days
following the occurrence of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective unless and until (i) a successor Administrator shall
have been appointed by the Depositor (with the consent of the Owner Trustee,
which consent shall not be unreasonably withheld) and (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of this
Administration Agreement in the same manner as the predecessor Administrator is
bound hereunder.
(f) The appointment of any successor Administrator shall be effective
only after each Rating Agency, after having been given ten (10) days prior
notice of such proposed appointment, shall have confirmed in writing that such
appointment will not result in an Adverse Rating Event.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of any termination of this Administration Agreement pursuant to
Section 8(a) of this Administration Agreement or the resignation or removal of
the Administrator pursuant to Sections 8(b), 8(c) or 8(d) of this Administration
Agreement, respectively, the Administrator shall be entitled to be paid all fees
and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8(a) of this Administration Agreement deliver to the Trust
all property and documents of or relating to the Bonds or the Collateral then in
the custody of the Administrator. In the event of the resignation or removal of
the Administrator pursuant to Sections 8(b), 8(c) or 8(d) of this Administration
Agreement, respectively, the Administrator shall cooperate with the Trust and
take all reasonable steps requested to assist the Trust in making an orderly
transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
if to the Trust, to:
ICCMAC Multifamily and Commercial Trust 1999-1
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile number: (000) 000-0000
Attention: Corporate Trust Administration
if to the Administrator, to:
Imperial Credit Commercial Asset Management Corp.
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile number: (000) 000-0000
Attention: Xxxx X. Xxxxxx
if to the Indenture Trustee, to:
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile number: (000) 000-0000
Attention: Asset-Backed Securities Trust Services Group --
Collateralized Mortgage Bonds -- ICCMAC Multifamily and
Commercial Trust 1999-1
or to such other address as any such party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
11. Amendments.
(a) This Administration Agreement may be amended from time to time by the
parties hereto as specified in this Section, provided that any amendment be
accompanied by the written consent of the Indenture Trustee and an Opinion of
Counsel shall be furnished to the Indenture Trustee stating that such amendment
complies with the provisions of this Section.
(b) If the purpose of the amendment is to prevent the imposition of any
federal or state taxes at any time that any Bonds are outstanding, it shall not
be necessary to obtain the consent of any Bondholder to such amendment, but the
Indenture Trustee shall be furnished with an Opinion of Counsel that such
amendment is necessary or helpful to prevent the imposition of such taxes and is
not materially adverse to any Bondholder.
(c) If the purpose of the amendment is to add or eliminate or change any
provision of this Administration Agreement other than as contemplated in clause
(b) above, it shall not be necessary to obtain the consent of any Bondholder to
such amendment, but such amendment shall not be effective unless the Indenture
Trustee shall have been furnished with a letter from each Rating Agency
confirming that such amendment will not result in an Adverse Rating Event.
12. Successors and Assigns. This Administration Agreement shall not be
assigned by the Administrator unless (i) such assignment is previously consented
to in writing by the Trust and the Indenture Trustee, (ii) each Rating Agency,
after having been given ten (10) days' prior written notice of such assignment,
shall have confirmed in writing confirming that such assignment will not result
in an Adverse Rating Event, and (iii) the assignee shall have agreed in writing
to be bound by the terms of this Administration Agreement in the same manner as
the predecessor Administrator is bound hereunder. Notwithstanding the preceding
sentence, the Administrator may be merged with or consolidated with or into any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which the
Administrator shall be a party, or any Person succeeding to the business of the
Administrator, shall be the successor of the Administrator hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto; provided, however, that no such successor or resulting
Person shall succeed to the rights or duties of the Administrator hereunder
unless each Rating Agency shall have confirmed in writing that such succession
will not result in an Adverse Rating Event. Subject to the foregoing, this
Administration Agreement shall bind any successors or assigns of the parties
hereto.
13. Governing Law. This Administration Agreement shall be construed in
accordance with the Laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such Laws.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Administration Agreement.
15. Counterparts. This Administration Agreement may be executed in
counterparts, each of which when so executed shall together constitute but one
and the same agreement.
16. Severability. Any provision of this Administration Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. Limitation on Liability. It is expressly understood and agreed by the
parties hereto and the Indenture Trustee as a third-party beneficiary that (i)
this Administration Agreement is executed and delivered by Wilmington Trust
Company, not individually and personally but solely in its capacity as Owner
Trustee of the Trust, in the exercise of the powers and authority conferred and
vested in it, (ii) each of the representations, warranties, covenants,
agreements, undertakings and obligations herein made is made and intended not as
personal representations, warranties, covenants, agreements, undertakings and
obligations of Wilmington Trust Company but is made and intended for the purpose
of binding only the Trust, (iii) nothing herein contained shall be construed as
creating any liability on Wilmington Trust Company, individually or personally,
to perform any covenant either express or implied contained herein, all such
liability, if any, being expressly waived by the Indenture Trustee and the
parties hereto and by any person claiming by through or under the Indenture
Trustee or the parties hereto and (iv) under no circumstances shall Wilmington
Trust Company be personally liable for payment of any indebtedness or expenses
of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Administration Agreement or any related document.
18. Third-Party Beneficiary. The Indenture Trustee on behalf of the
Bondholders is a third-party beneficiary to this Administration Agreement and is
entitled to the rights and benefits hereunder and may enforce the provisions
hereof as if it were a party hereto.
[Signatures commence on next page.]
IN WITNESS WHEREOF, the parties have caused this Administration Agreement
to be duly executed and delivered as of the day and year first above written.
ICCMAC MULTIFAMILY AND COMMERCIAL
TRUST 1999-1, a
Delaware business trust
By: Wilmington Trust Company, a
Delaware banking corporation, not
in its individual capacity but
solely as Owner Trustee
By: __________________________
Name:
Title:
IMPERIAL CREDIT COMMERCIAL ASSET
MANAGEMENT CORP., a California
corporation, as Administrator
By: __________________________
Name:
Title:
ANNEX 1
DEFINED TERMS
"Accepted Master Servicing Practices": The procedures that the Master
Servicer shall follow in the servicing and administration of the Mortgage Loans,
consistent with the higher of (i) the standard of care, skill, prudence and
diligence with which the Master Servicer services and administers mortgage loans
that are held for other portfolios and are similar to the Mortgage Loans and
(ii) the standard of care, skill, prudence and diligence with which the Master
Servicer services and administers mortgage loans for its own portfolio and are
similar to the Mortgage Loans, in either case, giving due consideration to
customary and usual standards of practice of prudent institutional multifamily
and commercial mortgage loan servicers, but without regard to:
(i) any relationship that the Master Servicer or any Affiliate of the
Master Servicer may have with any Mortgagor or any Affiliate of
any Mortgagor or any other party to the Servicing Agreement;
(ii) the Master Servicer's obligations to make Advances with respect
to the Mortgage Loans;
(iii)the adequacy of the Master Servicer's compensation for its
services under the Servicing Agreement or with respect to any
particular transaction;
(iv) the ownership, servicing or management for others by the Master
Servicer of any other mortgage loans or property; or
(v) the ownership by the Master Servicer of any Bonds or other
securities.
To the extent consistent with the foregoing and subject to the express
limitations set forth in the Servicing Agreement, the procedures followed by the
Master Servicer shall seek to maximize the timely and complete recovery of
principal and interest on the Mortgage Loans.
"Accepted Special Servicing Practices": The procedures that the
Special Servicer shall follow in the servicing, administration and disposition
of Specially Serviced Mortgage Loans and the related Mortgaged Properties or REO
Properties, consistent with the higher of (i) the standard of care, skill,
prudence and diligence with which the Special Servicer services, administers and
disposes of distressed mortgage loans and related real property that are held
for other portfolios and are similar to the Mortgage Loans, Mortgaged Properties
and REO Properties and (ii) the standard of care, skill, prudence and diligence
with which the Special Servicer services, administers and disposes of distressed
mortgage loans and related real property that are held for its own portfolio and
are similar to the Mortgage Loans, Mortgaged Properties and REO Properties,
giving due consideration to customary and usual standards of practice of prudent
institutional multifamily and commercial mortgage lenders, loan servicers and
asset managers, but without regard to:
(i) any relationship that the Special Servicer or any Affiliate of
the Special Servicer may have with any Mortgagor or any Affiliate
of any Mortgagor or any other party to the Servicing Agreement;
(ii) the adequacy of the Special Servicer's compensation for its
services under the Servicing Agreement or with respect to any
particular transaction;
(iii)the ownership, servicing or management for others by the Special
Servicer of any other mortgage loans or property; or
(iv) the ownership by the Special Servicer of any Bonds or other
securities.
To the extent consistent with the foregoing and subject to the
express limitations set forth in the Servicing Agreement, the procedures
followed by the Special Servicer shall seek to maximize the net present value of
recoveries on the Specially Serviced Mortgage Loans.
"Account": Any account or fund, including any Pledged Account
established under the Indenture.
"Accountants": A person engaged in the practice of accounting who
(except when the Indenture requires an Independent Accountant) may be employed
by or Affiliated with the Issuer or an Affiliate of the Issuer.
"Accrued Bond Interest": In respect of any Class of Bonds (other
than the Class S, Class H and Class X Bonds) and any Payment Date, the amount of
interest accrued in the applicable Interest Accrual Period at the applicable
Bond Interest Rate on the aggregate Bond Principal Amount of such Class of Bonds
Outstanding immediately prior to the related Payment Date, calculated on (i) the
basis of the actual number of days elapsed in the applicable Interest Accrual
Period and a 360-day year with respect to the Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D and Class E Bonds, and (ii) a 360-day year consisting
of twelve 30-day months with respect to the Class F and Class G Bonds.
"Act": Any instrument or instruments (and the action embodied
therein and evidenced thereby) of the Bondholders signing such instrument or
instruments. As used in this definition, "instrument" refers to any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by the Indenture to be given or taken by Bondholders embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Bondholders in person or by agents 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 Indenture Trustee and, where
it is hereby expressly required, to the Issuer. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of the Indenture and (subject to Section 6.01 of the Indenture)
conclusive in favor of the Indenture Trustee and the Issuer if made in the
manner described in Section 14.03 of the Indenture.
"Actual Knowledge": With respect to the Owner Trustee or Holding
Trustee, any Responsible Officer of the Owner Trustee or Holding Trustee, as
applicable, within the Corporate Trust Administration office of such trustee
responsible for administering the Trust or the Holding Trust, respectively, who
has actual knowledge of an action taken or an action not taken that would be
material to the operation of either the Trust or the Holding Trust. Actions
taken or actions not taken of which such trustee should have had knowledge, or
are deemed to have had constructive knowledge, do not meet this definition of
Actual Knowledge.
"Additional Expense": Any costs, expenses and liabilities (exclusive
of Administrative Expenses and Servicing Expenses) that are required to be borne
by the Issuer and not otherwise in respect of the Trust Estate in accordance
with applicable Law, Section 7.2(c) of the Deposit Trust Agreement, or the terms
of the Indenture (including any federal, state and local taxes.
"Additional Fee Rate": With respect to any Payment Date, a rate per
annum equal to the sum of the Owner Trustee Calculation Fee Rate and the
Administration Calculation Fee Rate.
"Adjustable Rate Mortgage Loan": A Mortgage Loan as to which the
related Mortgage Note provides for periodic adjustments to the Mortgage Interest
Rate thereon based on changes in the related Index.
"Administration Agreement": The Administration Agreement, dated as
of February 1, 1999, between the Administrator and the Issuer, a copy of which
is attached to the Indenture as Exhibit G, and any amendments or supplements
thereto.
"Administration Calculation Fee Rate:" With respect to any Payment
Date, the rate per annum represented by a fraction, (i) the numerator of which
is $6,000 and (ii) the denominator of which is Stated Principal Balance of the
Mortgage Loans as of the first day of the immediately preceding calendar month.
"Administration Fee": A monthly fee of $500 payable to the
Administrator on each Payment Date commencing in March 2000.
"Administrative Expenses": The fees and expenses of the Indenture
Trustee and the Fiscal Agent payable thereto pursuant to Section 6.07 of the
Indenture, the fees of the Owner Trustee payable thereto pursuant to Section 7.1
of the Deposit Trust Agreement, and the Administration Fee payable to the
Administrator pursuant to the Administration Agreement and any other costs,
expenses and liabilities (exclusive of Servicing Expenses) that are required to
be borne by the Issuer in respect of the Trust Estate in accordance with
applicable opinions of and advice from Counsel required to be obtained in
connection with the Indenture Trustee's performance of its duties under the
Indenture (including the cost of such opinions and advice).
"Administrator": Imperial Credit Commercial Asset Management Corp.,
a California corporation, having its principal offices at 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, or its
successor in interest.
"Advance": A P&I Advance or a Property Protection Advance.
"Advance Rate": An annual rate equal to the Prime Rate in effect
from time to time.
"Adverse Rating Event": With respect to any Class of Rated Bonds, as
of any date of determination, a downgrade, withdrawal or qualification, if
applicable, of the rating then assigned to such Class by any Rating Agency.
"Affiliate": With respect to any specified Person, any other Person
that directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the person specified. 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 or
other beneficial interest, by contract or otherwise; and the terms "controlling"
and "controlled" have the meanings correlative to the foregoing.
"Agent": A person authorized by or appointed by the Issuer to
perform duties with respect to the Bonds, specified in a writing signed by such
Agent and the Issuer and acknowledged by the Indenture Trustee, or by such Agent
and the Indenture Trustee and acknowledged by the Issuer, including any Paying
Agent. As used in the Deposit Trust Agreement and the Holding Trust Agreement, a
person authorized or appointed by the Owner Trustee or the Holding Trustee,
respectively, to perform duties with respect to the Ownership Certificates or
the Holding Trust Certificates, respectively, specified in a writing signed by
such Agent and the Owner Trustee or Holding Trustee, as applicable.
"Appraisal Reduction Amount": For any Payment Date and for any
Mortgage Loan as to which any Appraisal Reduction Event has occurred, an amount
equal to the excess of (a) the outstanding Stated Principal Balance of such
Mortgage Loan as of the last day of the related Collection Period over (b) the
excess of (i) 90% of the sum of the appraised values of the related Mortgaged
Properties as determined by an MAI Appraisal over (ii) the sum of (A) to the
extent not previously advanced by the Master Servicer, the Indenture Trustee or
the Fiscal Agent, all unpaid interest on such Mortgage Loan at a per annum rate
equal to the Mortgage Interest Rate, (B) all unreimbursed Advances and interest
thereon at the Advance Rate in respect of such Mortgage Loan and (C) all
currently due and unpaid real estate taxes and assessments and insurance
premiums and all other amounts, including, if applicable, ground rents, due and
unpaid under the Mortgage Loan (which taxes, premiums and other amounts have not
been the subject of an Advance).
With respect to each Mortgage Loan as to which an Appraisal
Reduction Event has occurred and which has become a Corrected Mortgage Loan and
has remained current for twelve consecutive Monthly Payments (for such purposes
taking into account any amendment or modification of such Mortgage Loan), and
with respect to which no other Appraisal Reduction Event has occurred and is
continuing, such Mortgage Loan shall no longer be subject to any appraisal
reduction.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest occurrence of any of the following events: (i) the third anniversary of
the date on which an extension of the Loan Maturity Date of such Mortgage Loan
became effective as a result of a modification of such Mortgage Loan by the
Special Servicer, which extension does not change the amount of Monthly Payments
on the Mortgage Loan, (ii) 60 days after an uncured delinquency 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 the Mortgage Loan, becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer, (iv) 60 days after a
receiver has been appointed with respect to the related Mortgagor, (v)
immediately after the related Mortgagor declares bankruptcy, (vi) 60 days after
an involuntary petition of bankruptcy is filed with respect to the related
Mortgagor, if such petition is not dismissed prior to the expiration of such
period; and (vii) immediately after a related Mortgaged Property becomes an REO
Property.
"ASAP System": The "automatic statements accessed by phone" system
maintained by the Indenture Trustee and used by the Bondholders to obtain
certain reports and information about the Bonds.
"Asset Strategy Report": Any report prepared pursuant to Section
6.03(c) of the Servicing Agreement.
"Assignment of Leases and Rents": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Mortgagor, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the Cut-Off Date and from time to time thereafter.
"Assignment of Mortgage": An assignment of a Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the Laws
of the jurisdiction wherein the related Mortgaged Property is located to effect
the transfer of the Mortgage to the Issuer, which assignment, notice of transfer
or equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the same
jurisdiction, if permitted by Law.
"Assumed Monthly Payment": The amount deemed due in respect of any
Balloon Mortgage Loan that is delinquent in respect of its Balloon Payment
beyond the first Determination Date that follows its original Loan Maturity
Date. The Assumed Monthly Payment deemed due on any such Mortgage Loan on its
original Loan Maturity Date and on each successive Due Date that it remains or
is deemed to remain outstanding shall equal the Monthly Payment that would be
due in respect thereof on such date if the related Balloon Payment had not come
due but rather such Mortgage Loan had continued to amortize in accordance with
such Mortgage Loan's amortization schedule in effect on such date of
determination.
"Authenticating Agent": As defined in Section 2.04(c) of the
Indenture.
"Authorized Officer": With respect to the Owner Trustee, any officer
of the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identified on the list of authorized officers
delivered by the Owner Trustee to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter); with
respect to the Indenture Trustee or the Fiscal Agent, a Responsible Officer;
and, with respect to any other Person, the Chairman, President, any Senior Vice
President, any Vice President or any Assistant Vice President, and the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary (provided that, when any provision hereof
requires signatures of two Authorized Officers of any such other Person, at
least one of such Authorized Officers shall be the Chairman, President or any
Vice President).
"Available Interest Payment Amount": With respect to any Payment
Date, an amount equal to the excess of (i) the Available Payment Amount for such
Payment Date, over (ii) the Principal Payment Amount for such Payment Date.
"Available Payment Amount": With respect to any Payment Date, the
amount on deposit in the Payment Account as of 11:00 a.m., New York City time,
on such Payment Date, exclusive of any portion thereof that may be withdrawn
from the Payment Account pursuant to any of clauses (ii) and (iii) of Section
8.01(b) of the Indenture.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification provides for an amortization schedule
extending beyond its Loan Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the amount outstanding on the Loan Maturity Date of
such Mortgage Loan in excess of the portion of the related Monthly Payment which
is allocable to principal.
"Bank": As used in the Deposit Trust Agreement or the Holding Trust
Agreement, Wilmington Trust Company, a Delaware banking corporation, in its
individual capacity, not as Owner Trustee or Holding Trustee, as the case may
be.
"Bankruptcy Code": The federal Bankruptcy Code (Title 11 of the
United States Code), as amended from time to time.
"Bond": Any Class X-0, Xxxxx X-0, Class S, Class A-3, Class B, Class
C, Class D, Class X, Class E, Class F, Class G or Class H Bond.
"Bond Balance": With respect to any Bond, as of any date of
determination, the then Outstanding Bond Principal Amount of such Bond equal to
the product of (a) the Percentage Interest evidenced by such Bond, multiplied by
(b) the then aggregate Bond Principal Amount of the Class of Bonds to which such
Bond belongs.
"Bond Interest Rate": With respect to any Payment Date, the per
annum rate of interest for each Class of Bonds (except for the Class S, Class X,
Class F, Class G and Class H Bonds) equal to the lesser of (a) the applicable
Bond LIBOR Rate and (b) the Weighted Average Remittance Rate for such Payment
Date. The Bond Interest Rate with respect to any Payment Date for the Class F
and Class G Bonds is, with respect to each such Class, a per annum rate equal to
6.00%. The Class S, Class X and Class H Bonds do not have Bond Interest Rates.
"Bond LIBOR Rate": With respect to any Payment Date, the per annum
rate equal to One-Month LIBOR plus the related Margin, but in no event greater
than the Maximum Offered Bond Rate.
"Bond Owner": With respect to a Book-Entry Bond, the Person who is
the beneficial owner of such Bond as reflected on the books of the Depository or
on the books of a Depository Participant or on the books of an indirect
participating brokerage firm for which a Depository Participant acts as agent.
"Bond Principal Amount": With respect to any Class of Bonds (i) on
or prior to the first Payment Date, an amount equal to the aggregate initial
Bond Principal Amount of such Class and (ii) as of any date of determination
after the first Payment Date, the Bond Principal Amount of such Class of Bonds
on the Payment Date immediately prior to such date of determination, less actual
payments of principal thereon (and in the case of the Class S and Class X Bonds,
less payments of Distributable Amounts, Shortfall Amounts (excluding any
interest payments thereon), and Early Termination Amounts) on such prior Payment
Date. Realized Losses will not be allocated to reduce Bond Principal Amounts.
The initial Bond Principal Amounts are as follows:
Class A-1........... $100,000,000
Class A-2........... 94,831,000
Class S............. 12,150,000
Class A-3........... 17,447,000
Class B............. 11,631,000
Class C............. 14,539,000
Class D............. 13,085,000
Class X............. 2,700,000
Class E............. 4,361,000
Class F............. 8,723,000
Class G............. 5,815,000
Class H............. 7,269,000
The initial Bond Principal Amount for the Class S Bonds is equal to the
aggregate of the Class S Scheduled Payments. The initial Bond Principal Amount
of the Class X Bonds is equal to the aggregate of the Class X Scheduled
Payments. Upon payment in full of an Early Termination Amount, the Bond
Principal Amount of the Class S or Class X Bonds, as the case may be, will be
reduced to zero.
"Bond Redemption Amount": An amount equal to the sum of (i) with
respect to each Class of Bonds Outstanding (other than the Class S and Class X
Bonds), the sum of (A) the unpaid Bond Principal Amount thereof, (B) accrued and
unpaid interest at the applicable Bond Interest Rate through the Redemption
Date, and (C) any unpaid LIBOR Deficiency Amount, together with interest on such
unpaid LIBOR Deficiency Amount (to the extent permitted by applicable Law) at
the applicable Bond Interest Rate; (ii) with respect to the Class S Bonds
Outstanding, the sum of (A) to the extent not paid on prior Payment Dates, any
unpaid Class S Shortfalls, together with interest on such unpaid Class S
Shortfalls (to the extent permitted by applicable Law) at the Class S Rate and
(B) the Class S Early Termination Amount; (iii) with respect to the Class X
Bonds Outstanding, the sum of (A) to the extent not paid on prior Payment Dates,
any unpaid Class X Shortfalls, together with interest on such unpaid Class X
Shortfalls (to the extent permitted by applicable Law) at the Class X Rate and
(B) the Class X Early Termination Amount; and (iv) all unreimbursed Advances
with interest thereon at the Advance Rate, unpaid Master Servicer Fees, Special
Servicer Fees, Indenture Trustee Fees, Owner Trustee Fees and Administration
Fees and any unpaid expenses of the Issuer.
"Bond Register": The meaning specified in Section 2.05 of the
Indenture.
"Bond Registrar": The meaning specified in Section 2.05 of the
Indenture.
"Bondholder": The Person in whose name a Bond is registered on the
Bond Register.
"Book-Entry Bonds": Bonds for which the Indenture provides that
ownership and transfers of beneficial ownership interests in such Bonds shall be
made through book entries by the Depository, as described in Section 2.12 of the
Indenture; provided, however, that after the occurrence of a condition whereupon
book-entry registration is no longer permitted, Definitive Bonds shall be issued
to the Bond Owners of such Bonds and such Bonds shall no longer be "Book-Entry
Bonds."
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking and savings and loan institutions in the states of California,
Delaware, Texas, New York or Illinois are authorized or obligated by Law or
executive order to remain closed.
"Business Trust Statute": The Delaware Business Trust Act, Chapter
38, Title 12 of the Delaware Code, 12 Delaware Code, ss. 3801 et.
seq., as the same may be amended from time to time.
"Certificate Percentage Interest": With respect to any Ownership
Certificate or Holding Trust Certificate, the portion of the total outstanding
Ownership Certificates or Holding Trust Certificates, as applicable, evidenced
by such Ownership Certificate or Holding Trust
Certificate, as applicable, expressed as a percentage.
"Certificate Voting Rights": The portion of the voting rights of all
of the Ownership Certificates or Holding Trust Certificates, as applicable,
allocated to any Ownership Certificate or Holding Trust Certificate, as
applicable, as of the date of determination. Certificate Voting Rights shall be
allocated among the Ownership Certificates or Holding Trust Certificates, as
applicable, pro rata based upon the Certificate Percentage Interest of each
Ownership Certificate or Holding Trust Certificate, as applicable.
"Certificate of Trust": The certificate of trust filed prior to the
Closing Date by the Owner Trustee, with respect to the Trust, or the Holding
Trustee, with respect to the Holding Trust, as applicable, in the office of the
Secretary of State of the State of Delaware, as required by the Business Trust
Statute.
"Class": All Bonds having the same alphabetical and/or numerical
class designation and otherwise having the same characteristics (except for the
denomination of such Bond).
"Class A-1 Bond": Any of the Bonds with a "Class A-1" designation on
the face thereof, executed by the Issuer and authenticated by the Indenture
Trustee substantially in the form of Exhibit A-1 attached to the Indenture.
"Class A-2 Bond": Any of the Bonds with a "Class A-2" designation on
the face thereof, executed by the Issuer and authenticated by the Indenture
Trustee substantially in the form of Exhibit A-2 attached to the Indenture.
"Class A-3 Bond": Any of the Bonds with a "Class A-3" designation on
the face thereof, executed by the Issuer and authenticated by the Indenture
Trustee substantially in the form of Exhibit A-4 attached to the Indenture.
"Class B Bond": Any of the Bonds with a "Class B" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
substantially in the form of Exhibit A-5 attached to the Indenture.
"Class C Bond": Any of the Bonds with a "Class C" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
substantially in the form of Exhibit A-6 attached to the Indenture.
"Class D Bond": Any of the Bonds with a "Class D" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
substantially in the form of Exhibit A-7 attached to the Indenture.
"Class E Bond": Any of the Bonds with a "Class E" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
substantially in the form of Exhibit A-9 attached to the Indenture.
"Class Exemption": A class exemption granted by the DOL, which
provides relief from some or all of the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code and the related excise tax
provisions of Section 4975 of the Code.
"Class F Bond": Any of the Bonds with a "Class F" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
substantially in the form of Exhibit A-10 attached to the Indenture.
"Class G Bond": Any of the Bonds with a "Class G" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
substantially in the form of Exhibit A-11 attached to the Indenture.
"Class H Bond": Any of the Bonds with a "Class H" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
substantially in the form of Exhibit A-12 attached to the Indenture.
"Class S Bond:" Any of the Bonds with a "Class S" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
substantially in the form of Exhibit A-3 attached to the Indenture.
"Class S Distributable Amount": On each Payment Date, an amount
equal to the lesser of (i) the Class S Scheduled Payment for such Payment Date,
and (ii) the excess of (A) the Available Interest Payment Amount for such
Payment Date, over (B) the aggregate Accrued Bond Interest payable to the Class
A-1, Class A-2, Class A-3, Class B, Class C, Class D and Class E Bonds on such
Payment Date.
"Class S Early Termination Amount": As of any date of determination,
the present value of the Class S Scheduled Payments remaining as of such date of
determination, calculated using a discount rate equal to the Class S Rate.
"Class S Rate": An interest rate per annum equal to 7.29%.
"Class S Scheduled Payment": With respect to each Payment Date, the
scheduled payment amount set forth in Exhibit H to the Indenture corresponding
to such Payment Date.
"Class S Shortfall": On any Payment Date, the sum of (i) the amount,
if any, by which the Class S Scheduled Payment for such Payment Date exceeds the
Class S Distributable Amount for such Payment Date and (ii) the amount of any
unpaid Class S Shortfalls on the immediately preceding Payment Date.
"Class X Bond": Any of the Bonds with a "Class X" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
substantially in the form of Exhibit A-8 attached to the Indenture.
"Class X Distributable Amount": On any Payment Date, an amount equal
to the lesser of (i) the Class X Scheduled Payment and (ii) the excess of (A)
the Available Interest Payment Amount for such Payment Date over (B) the sum of
(1) the aggregate Accrued Bond Interest payable to the Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D, Class E, Class F and Class G Bonds on such
Payment Date and (2) the Class S Distributable Amount and Class S Shortfall
payable to the Class S Bonds on such Payment Date.
"Class X Early Termination Amount": As of any date of determination,
the present value of the Class X Scheduled Payments remaining as of such date of
determination, calculated using a discount rate equal to the Class X Rate.
"Class X Rate": An interest rate per annum equal to 9.0%.
"Class X Scheduled Payment": With respect to each Payment Date, the
scheduled payment amount set forth in Exhibit I to the Indenture corresponding
to such Payment Date.
"Class X Shortfall": On any Payment Date, the sum of (i) the amount,
if any, by which the Class X Scheduled Payment for such Payment Date exceeds the
Class X Distributable Amount for such Payment Date and (ii) the amount of any
unpaid Class X Shortfalls on the immediately preceding Payment Date.
"Closing Date": March 10, 1999.
"Code": The Internal Revenue Code of 1986, as amended, and Treasury
Regulations promulgated thereunder including proposed regulations, to the extent
that by reason of their effective date they could apply to the Bonds.
"Collateral": The Trust Estate securing the Bonds. An "item" of
Collateral refers to a specific item of Mortgage Collateral or other asset,
which is Granted to the Indenture Trustee under the Indenture.
"Collateralized Mortgage Bonds": The Series 1999-1 Bonds issued by
the Issuer pursuant to the Indenture and secured by the Collateral.
"Collection Account": The trust account or accounts created and
maintained by the Master Servicer pursuant to Section 4.02 of the Servicing
Agreement which shall be entitled "Banc One Mortgage Capital Markets, LLC, in
trust for LaSalle National Bank, as Indenture Trustee, in trust for Holders of
ICCMAC Multifamily and Commercial Trust 1999-1, Collateralized Mortgage Bonds,
Series 1999-1, Collection Account" and which must be an Eligible Account.
"Collection Period": With respect to any Payment Date, the period
commencing immediately following the Determination Date in the month immediately
preceding the month in which such Payment Date occurs (or, in the case of the
initial Collection Period, commencing immediately following the Cut-Off Date)
and ending on and including the Determination Date in the month in which such
Payment Date occurs.
"Commission": The Securities and Exchange Commission, or any
successor thereto.
"Condemnation Proceeds": With respect to each Mortgage Loan, all
awards or settlements in respect of the related Mortgaged Property, whether
permanent or temporary, partial or entire, on account of the exercise of the
power of eminent domain or condemnation of such Mortgaged Property, held in an
escrow account or a trust account, which is an Eligible Account, pursuant to the
terms of the related Mortgage Loan Documents and applicable Law, and applied or
to be applied to the restoration or repair of such Mortgaged Property or
required to be released to the related Mortgagor in accordance with the terms of
such Mortgage Loan Documents or, to the extent not expressly provided therein,
in accordance with Accepted Master Servicing Practices or Accepted Special
Servicing Practices, as applicable, and applicable Law.
"Corporate Trust Office": The principal corporate trust office of
the Indenture Trustee at which at any particular time its corporate trust
business with respect to the Indenture shall be administered, which is currently
located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Asset Backed Securities Trust Services Group--ICCMAC 1999-1.
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan) and (provided that no additional Servicing Transfer Event is
foreseeable in the reasonable judgment of the Special Servicer) the Special
Servicer has returned servicing of such Mortgage Loan to the Master Servicer
pursuant to Section 6.02 of the Servicing Agreement.
"CSSA Standard Information Package": The report in the format of the
Commercial Secondary Market and Securitization Association Standard information
package, as in effect from time to time.
"Custodian": A Person who is at any time appointed by the Indenture
Trustee pursuant to Section 6.14 of the Indenture as a document custodian.
"Cut-Off Date": February 1, 1999.
"Cut-Off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-Off Date, net
of the principal portion of all unpaid Monthly Payments due on or before such
date, excluding, with respect to each Mortgage Loan, the right to receive
Prepayment Premiums, which Prepayment Premiums shall remain property of the
Mortgage Loan Seller.
"DCR": Duff & Xxxxxx Credit Rating Co., and its successors in
interest.
"Defaulted Mortgage Loan": Any Mortgage Loan which is more than 60
days delinquent in whole or in part in respect of any Monthly Payment, or is
more than 30 days delinquent in whole or in part in respect of the related
Balloon Payment, if any; provided that for purposes of this definition, no
Monthly Payment (other than a Balloon Payment) shall be deemed delinquent if
less than five dollars ($5.00) of all amounts due and payable on such Mortgage
Loan has not been received as of the most recent Due Date therefor.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the related Mortgaged Property
in an amount less than the then Stated Principal Balance of such Mortgage Loan,
or any reduction in the amount of principal to be paid in connection with any
scheduled Monthly Payment that constitutes a permanent forgiveness of principal,
which valuation results from a proceeding initiated under the Bankruptcy Code
with respect to the related Mortgagor or a state court deficiency proceeding.
"Definitive Bond": As defined in Section 2.12(a) of the Indenture.
"Deposit Trust Agreement": The Deposit Trust Agreement, dated as of
February 1, 1999, between the Depositor and the Owner Trustee, pursuant to which
the Issuer was created, and any amendments or supplements thereto.
"Depositor": Imperial Credit Commercial Mortgage Acceptance Corp., a
California corporation, and its successors in interest.
"Depository": The Depository Trust Company and any successor thereto
appointed by the Issuer as a Depository; provided that the Depository shall at
all times be a "clearing corporation" as defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of New York and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act; and
provided, further, that no entity shall be a successor Depository unless Bonds
held through such entity or its nominees are treated for U.S. Federal income tax
purposes as being in "registered form" within the meaning of Section 163(f) of
the Code.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Representation Letter": The Letter of Representations
dated March 10, 1999 among the Issuer, the Indenture Trustee and initial
Depository in connection with the issuance of the Class X-0, Xxxxx X-0, Class S,
Class A-3, Class B and Class C Bonds.
"Determination Date": With respect to any Payment Date, the 17th day
of the month in which such Payment Date occurs, or, if such 17th day is not a
Business Day, the immediately preceding Business Day.
"Directing Bondholder": The Monitoring Bondholder selected by a
majority of the Monitoring Bondholders, by Bond Balance, as certified to the
Indenture Trustee by the Bondholders or Bond Owners, as the case may be, from
time to time; provided, that, absent such selection, or (i) until a Directing
Bondholder is so selected, or (ii) upon receipt of notice from a majority of the
Monitoring Bondholders, by Bond Balance, that a Directing Bondholder is no
longer so designated, the Monitoring Bondholder(s) which owns the largest
aggregate Bond Balance of one or more Monitoring Classes shall be the Directing
Bondholder.
"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, the use of such REO Property in a trade or
business conducted by the Issuer or the performance of any construction work on
the REO Property (other than the completion of a building or improvement, where
more than 10% of the construction of such building or improvement was completed
before default became imminent), other than through an Independent Contractor;
provided, however, that the Issuer (or the Special Servicer on behalf of the
Issuer) shall not be considered to Directly Operate an REO Property solely
because the Issuer (or the Special Servicer on behalf of the Issuer) 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).
"Diskette": Any one of the computer diskettes attached to the inside
back cover of the Prospectus Supplement, each of which contains information
about each of the Mortgage Loans.
"Disposition Fee": A fee payable to the Special Servicer as
additional compensation equal to 1.0% of the net proceeds of the sale or
liquidation ( in whole or in part) of any Specially Serviced Mortgage Loan or
REO Property that is sold or transferred or otherwise liquidated by the Special
Servicer pursuant to Section 6.12 of the Servicing Agreement.
"Distributable Amount": Any Class S Distributable Amount or Class X
Distributable Amount, as applicable.
"Document Defect": As defined in Section 2.02(a) of the Servicing
Agreement.
"DOL": The United States Department of Labor, or any successor in
interest.
"DOL Regulations": The regulations promulgated at 29 C.F.R. ss.
2510.3-101.
"Dollar" or "$": A dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public or private debts.
"Due Date": With respect to any Mortgage Loan, the day of the month
set forth in the related Mortgage Note on which each Monthly Payment thereon is
scheduled to be due.
"Early Termination Amount": Any Class S Early Termination Amount or
Class X Early Termination Amount, as applicable.
"Eligible Account": Either (i) (A) an account or accounts maintained
with either a federal or state chartered depository institution or trust company
the long-term unsecured debt obligations (or short-term unsecured debt
obligations if the account holds funds for less than 30 days) or commercial
paper of which are rated by each of the Rating Agencies in its highest rating
category at all times (or short-term unsecured debt obligations if the account
holds funds for less than 30 days) of which are rated at least "AA-" or the
equivalent by each Rating Agency or, if applicable, the short-term rating
equivalent thereof, which is at least "D-1" by DCR and "A-1" by Standard &
Poor's and DCR, or (B) as to which the Master Servicer or the Indenture Trustee,
as applicable, has received written confirmation from each of the Rating
Agencies that holding funds in such account would not in and of itself, result
in an Adverse Rating Event, or (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity which, in the case of a state chartered
depository institution or trust company is subject to regulations 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 or state authority, or (iii) any other account that, as evidenced by a
written confirmation from each Rating Agency, would not, in and of itself,
result in an Adverse Rating Event, which may be an account maintained with the
Indenture Trustee or the Master Servicer; provided, however, that accounts held
at Banc One Texas, N.A. (or any successor in interest), and any other bank
authorized under the applicable Loan Documents (solely with respect to the
related Mortgage Loan), shall be Eligible Accounts for so long as there is no
downgrade, withdrawal or qualification of the long-term or short-term unsecured
debt rating of such institutions from their ratings as of the Closing Date (or,
with respect to any successor in interest of Banc One Texas, N.A., for so long
as there is no downgrade, withdrawal or qualification of the long-term or
short-term unsecured debt rating of such successor in interest, provided that
such successor in interest had a rating equal to or better than the rating of
Banc One Texas, N.A. as of the Closing Date at the time such bank became a
successor in interest).
"Eligible Trustee": A bank (within the meaning of Section 2(a)(5) of
the Investment Company Act) that meets the requirements of Section 26(a)(1) of
the Investment Company Act, that is not an Affiliate of the Depositor, the
Issuer or the Mortgage Loan Seller or an Affiliate of any Person involved in the
organization or operation of the Depositor, the Issuer or the Mortgage Loan
Seller, that is organized and doing business under the Laws of any state or the
United States of America, that is authorized under such Laws to exercise
corporate trust powers and to accept the trust conferred under the Deposit Trust
Agreement or the Holding Trust Agreement, as the case may be, that has a
combined capital and surplus and undivided profits of at least $100,000,000 and
that is subject to supervision or examination by federal or state authority and
that has a long-term unsecured debt rating from each Rating Agency of "A" or
better. If such bank publishes reports of condition at least annually, pursuant
to Law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this definition the combined capital,
surplus and undivided profits 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.
"Environmental Laws": Any present or future federal, state or local
Law, statute, regulation or ordinance, and any judicial or administrative order
or judgment thereunder, pertaining to health, industrial hygiene, Hazardous
Materials or the environment, including, but not limited to, each of the
following, as enacted as of the date hereof or as hereafter amended:
(i) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. xx.xx. 9601-9657;
(ii) the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
xx.xx. 6901-6991;
(iii)the Toxic Substance Control Act, 15 U.S.C. xx.xx. 2601-2629;
(iv) the Water Pollution Control Act (also known as the Clean Water
Act), 33 U.S.C. ss. 1251 et seq.;
(v) the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; and
(vi) the Hazardous Materials Transportation Act, 49 X.X.X.xx. 1801 et
seq.
"Environmental Site Assessment": In respect of any Mortgaged
Property, one or more reports regarding the environmental condition of such
Mortgaged Property prepared in connection with the origination of the related
Mortgage Loan or otherwise addressed to the Mortgage Loan Seller and its
successors and assigns. Such reports include, but are not limited to, Phase I
Environmental Reports and a review of a compilation of databases, made available
by several regulatory agencies and conducted by a private service with respect
to an area within a certain radius surrounding the related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as the
same may be amended from time to time.
"Excess Condemnation Proceeds": With respect to each Mortgage Loan,
all awards or settlements in respect of the related Mortgaged Property, whether
permanent or temporary, partial or entire, on account of the exercise of the
power of eminent domain or condemnation with respect to such Mortgaged Property,
other than any such awards or settlements held in an escrow account or a trust
account, which shall be an Eligible Account, pursuant to the terms of the
related Mortgage Loan Documents and applicable Law, and applied or to be applied
to the restoration or repair of such Mortgaged Property or required to be
released to the related Mortgagor in accordance with the terms of such Mortgage
Loan Documents or, to the extent not expressly provided therein, in accordance
with Accepted Master Servicing Practices or Accepted Special Servicing
Practices, as applicable, and applicable Law.
"Excess Insurance Proceeds": With respect to each Mortgage Loan,
proceeds of any primary hazard insurance policy required to be maintained
pursuant to Section 4.06 of the Servicing Agreement, title insurance policy or
any other Insurance Policy covering such Mortgage Loan or the related Mortgaged
Property, other than any proceeds to be held in an escrow account or a trust
account, which shall be an Eligible Account, pursuant to the terms of the
related Mortgage Loan Documents and applicable Law, and applied or to be applied
to the restoration or repair of such Mortgaged Property or required to be
released to the related Mortgagor in accordance with the terms of the related
Mortgage Loan Documents or, to the extent not expressly provided therein, in
accordance with Accepted Master Servicing Practices or Accepted Special
Servicing Practices, as applicable, and applicable Law.
"Exchange Act": The Securities Exchange Act of 1934, as amended, and
the rules, regulations and published interpretations of the Commission
promulgated thereunder from time to time.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Specially Serviced Mortgage Loan, as certified in
writing by a Servicing Officer setting forth such determination and the
procedures and considerations of the Special Servicer forming the basis of such
determination, that there has been a recovery of all REO Proceeds, Liquidation
Proceeds and other payments or recoveries that the Special Servicer, in its
reasonable good faith judgment, expects to be ultimately recoverable.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking
corporation and the corporate parent of the Indenture Trustee, and its
successors in interest.
"GAAP": Generally accepted accounting principles, as in effect in
the United States.
"Governmental Authority": Any government, or any commission,
authority, board, agency, division, subdivision or any court or tribunal of the
government, of the United States of America or of any state, territory, city,
municipality, county or town thereof or of the District of Columbia, or of any
foreign jurisdiction, including the employees or agents thereof.
"Grant": To mortgage, pledge, bargain, sell, warrant, alienate,
demise, convey, assign, transfer, create and grant a security interest in and
right of setoff against, deposit, set over and confirm. A Grant of Collateral
shall include all rights, powers and options (but none of the obligations) of
the Granting party thereunder, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest payments
in respect of the Collateral and all other monies and proceeds payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise, and generally to do
and receive anything which the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Hazardous Materials": All materials subject to any Environmental
Law, including, without limitation, materials listed in 49 C.F.R. ss. 172.010,
materials defined as hazardous pursuant to ss. 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
flammable, explosive or radioactive materials, hazardous or toxic wastes or
substances, lead-based materials, petroleum or petroleum distillates or asbestos
or material containing asbestos, polychlorinated biphenyls ("PCBs"), radon gas,
urea formaldehyde and any substances classified as being "in inventory", "usable
work in process" or similar classification that would, if classified as
unusable, be included in the foregoing definition.
"Highest Lawful Rate": As defined in Section 14.19 of the Indenture.
"Holder": A Bondholder.
"Holding Trust": ICCMIC Commercial Holding Trust 1999-1, a Delaware
business trust, and its successors in interest.
"Holding Trust Agreement": The Holding Trust Agreement, dated as of
February 1, 1999, between the Trustor and the Holding Trustee, pursuant to which
the Holding Trust was created, and any amendments or supplements thereto.
"Holding Trust Certificate": The certificate which represents 100%
of the ownership interest of the Holding Trust, with a "Holding Trust
Certificate" designation on the face thereof, executed and authenticated by the
Holding Trustee and substantially similar in form to Exhibit A attached to the
Holding Trust Agreement.
"Holding Trustee": Wilmington Trust Company, a Delaware banking
corporation, and its successors in interest, in its capacity as trustee under
the Holding Trust Agreement.
"Holding Trustee Fee": A fee of $4,000 per annum, payable each year
on the Payment Date occurring in the month in which the anniversary of the
Closing Date occurs, commencing in March 2000.
"Holding Trustee's Agent": Any agent or attorney of the Holding
Trustee appointed by the Holding Trustee to execute one or more of the trusts or
powers under the Holding Trust Agreement.
"Holding Trustee's Office": The principal corporate trust office of
the Holding Trustee at which, at any particular time, its corporate trust
business is administered, which office at the Closing Date is located at the
address of the Holding Trustee set forth in Section 13.4 of the Holding Trust
Agreement.
"Indenture": The Indenture, dated as of February 1, 1999 between the
Issuer, acting through the Owner Trustee and the Indenture Trustee and any
amendment or supplement thereto.
"Indenture Trustee": LaSalle National Bank, a national banking
association, and its successors in interest, in its capacity as Indenture
Trustee under the Indenture, or any successor trustee appointed as provided in
the Indenture.
"Indenture Trustee Fee": With respect to each Mortgage Loan and for
any Payment Date, an amount equal to one-twelfth of the product of (a) the
Indenture Trustee Fee Rate and (b) the Stated Principal Balance of each Mortgage
Loan as of the Due Date in the preceding calendar month, calculated on the basis
of a 360-day year consisting of twelve 30-day months.
"Indenture Trustee Fee Rate": A fee rate of 0.008%.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Issuer, the Depositor, the
Mortgage Loan Seller, the Loan Originator, the Indenture Trustee, the Fiscal
Agent, the Owner Trustee, the Master Servicer, the Special Servicer and any and
all Affiliates thereof, (ii) does not have any direct financial interest in or
any material indirect financial interest in any of the Issuer, the Depositor,
the Mortgage Loan Seller, the Loan Originator, the Indenture Trustee, the Fiscal
Agent, the Owner Trustee, the Master Servicer, the Special Servicer or any
Affiliate thereof, and (iii) is not connected with the Issuer, the Depositor,
the Mortgage Loan Seller, the Loan Originator, the Indenture Trustee, the Fiscal
Agent, the Owner Trustee, the Master Servicer, the Special Servicer or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Issuer within the meaning of
Section 856(d)(3) of the Code, so long as the Issuer does not receive or derive
any income from such Person and provided that the relationship between such
Person and the Issuer is at arm's length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5) (except that the Master Servicer or the Special
Servicer shall not be considered to be an Independent Contractor under the
definition in this clause (i) unless an Opinion of Counsel has been delivered to
the Issuer to that effect) or (ii) any other Person (including the Master
Servicer and the Special Servicer) upon receipt by the Issuer and the Special
Servicer of an Opinion of Counsel, which shall be at no expense to the Issuer or
the Special Servicer, 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 856(e) of the Code or cause any income realized in
respect of such REO Property to fail to qualify as Rents from Real Property.
"Index": With respect to each Adjustable Rate Mortgage Loan and each
Interest Rate Adjustment Date, the base index used to determine the new Mortgage
Interest Rate in effect thereon as specified in the related Mortgage Note.
"Institutional Accredited Investor": An "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan, any insurance
policy required to be maintained under the Servicing Agreement or the related
Mortgage Loan Documents.
"Insurance Proceeds": With respect to each Mortgage Loan, proceeds
of any primary hazard insurance policy required to be maintained pursuant to
Section 4.06 of the Servicing Agreement, or any other Insurance Policy covering
such Mortgage Loan or the related Mortgaged Property, to be held in an escrow
account or a trust account, which is an Eligible Account, pursuant to the terms
of the related Mortgage Loan Documents, related to such Mortgage Loan and
applied or to be applied to the restoration or repair of the related Mortgaged
Property or required to be released to the related Mortgagor in accordance with
the terms of the related Mortgage Loan Documents and applicable Law, or, to the
extent not expressly provided therein, in accordance with Accepted Master
Servicing Practices or Accepted Special Servicing Practices, as applicable, and
applicable Law.
"Interest Accrual Period": With respect to any Payment Date and any
Class of Bonds (other than the Class S, Class X, Class F, Class G and Class H
Bonds), the period from the immediately preceding Payment Date (or with respect
to the initial Payment Date, from the Closing Date) to and including the day
immediately preceding the applicable Payment Date. The Interest Accrual Period
for the Class F and Class G Bonds (and for the Class S and Class X Bonds with
respect to Shortfall Amounts) on each Payment Date will be the calendar month
preceding the month in which such Payment Date occurs. The Class S, Class X and
Class H Bonds do not have Interest Accrual Periods and will not accrue interest
(other than with respect to Class S Shortfalls and Class X Shortfalls, as
applicable).
"Interest Rate Adjustment Date": With respect to each Adjustable
Rate Mortgage Loan, any date on which the related Mortgage Interest Rate is
subject to adjustment pursuant to the related Mortgage Note.
"Interested Person": As of any date of determination with respect to
any Mortgage Loan, the Mortgagor, the Mortgage Loan Seller, the Loan Originator,
the Issuer, the Indenture Trustee, the Fiscal Agent, the Owner Trustee, the
Special Servicer, any Independent Contractor engaged by the Special Servicer, or
the Master Servicer.
"Investment Company Act": The Investment Company Act of 1940, as
amended, and the rules, regulations and published interpretations of the
Commission promulgated thereunder from time to time.
"IRS": The Internal Revenue Service, or any successor thereto.
"Issuer": ICCMAC Multifamily and Commercial Trust 1999-1, a Delaware
business trust established pursuant to the Deposit Trust Agreement, and its
successors in interest.
"Issuer Default": Any occurrence which is, or with notice or the
lapse of time or both would become, an Issuer Event of Default.
"Issuer's Equity": The right of the Ownership Certificateholder or
its designee to (i) receive all payments on and proceeds of the Collateral not
otherwise allocable to pay interest, principal or other amounts due on the Bonds
in accordance with their terms or expenses of the Trust Estate, and (ii) to have
the remaining Collateral returned to it after the Indenture is satisfied and
discharged.
"Issuer Event of Default": As defined in Section 5.01 of the
Indenture.
"Issuer Request" or "Issuer Order": A written request or order
signed in the name of the Issuer by an Authorized Officer of the Owner Trustee
and delivered to the Indenture Trustee.
"Law": Any judgment, order, decree, writ, injunction, award,
statute, rule, regulation or requirement of any federal, state, local or other
agency, commission, instrumentality, tribunal, governmental authority,
arbitrator or court having or asserting jurisdiction over any particular Person,
property or matter applicable to such particular Person, property or matter.
"LIBOR": With respect to any Payment Date, the per annum rate for
U.S. Dollar deposits determined in accordance with Section 1.03 of the
Indenture.
"LIBOR Business Day": Any day other than (i) Saturday or a Sunday or
(ii) a day on which banking institutions in the cities of Chicago, Illinois, New
York, New York, or London, England are required or authorized by Law to be
closed.
"LIBOR Deficiency Amount": To the extent that the Bond Interest Rate
on the Class A-1, Class A-2, Class A-3, Class B, Class C, Class D or Class E
Bonds for any Payment Date is determined to be the Weighted Average Remittance
Rate, the excess with respect to such Payment Date of (i) the amount of interest
that would have been payable on such Bonds at the Bond LIBOR Rate for such Class
of Bonds and such Payment Date, over (ii) the amount of interest that is payable
on such Class of Bonds at the Weighted Average Remittance Rate for such Payment
Date.
"LIBOR Rate Adjustment Date": As defined in Section 1.03 of the
Indenture.
"Liquidation Event": With respect to any Mortgage Loan or Specially
Serviced Mortgage Loan, any of the following events: (i) such Mortgage Loan is
paid in full; (ii) a Final Recovery Determination is made with respect to such
Mortgage Loan or Specially Serviced Mortgage Loan; (iii) such Mortgage Loan is
repurchased by the Mortgage Loan Seller pursuant to Sections 2.05 or 3.01(d) of
the Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is repurchased by
the Loan Originator pursuant to Section 3 of the Warranty Agreement; (v) such
Mortgage Loan is repurchased by the Ownership Certificateholder pursuant to
Section 11.01 of the Indenture; or (vi) such Specially Serviced Mortgage Loan is
purchased (or sold to a third-party) by the Special Servicer pursuant to Section
6.05 of the Servicing Agreement.
"Liquidation Proceeds": Cash (including any Excess Insurance
Proceeds or Excess Condemnation Proceeds, but excluding REO Proceeds) received
in connection with the liquidation of a Mortgage Loan or Specially Serviced
Mortgage Loan, whether through the sale or assignment of such Mortgage Loan,
trustee's sale, foreclosure sale or otherwise.
"Loan Maturity Date": With respect to any Mortgage Loan as of any
date of determination, the date on which the last payment of principal is due
and payable under the related Mortgage Note.
"Loan Originator": Southern Pacific Bank, a California banking
corporation, and its successors in interest.
"Loss Mortgage Loan": Any Mortgage Loan (i) as to which a
Liquidation Event has occurred, (ii) with respect to which the Master Servicer,
the Indenture Trustee or the Fiscal Agent, as applicable, has determined that an
Advance previously made or proposed to be made is a Nonrecoverable Advance, or
(iii) with respect to which a Deficient Valuation has been made or a portion of
the principal balance thereof has been otherwise permanently forgiven, by
modification or otherwise.
"MAI Appraisal": Any appraisal prepared by an Independent member of
the Appraisal Institute (who has five years' experience with property types
comparable to the property type of the related Mortgaged Property and in the
jurisdiction in which the related Mortgaged Property is located) required
pursuant to Section 6.13 of the Servicing Agreement.
"Margin": With respect to the Class A-1, Class A-2, Class A-3, Class
B, Class C, Class D and Class E Bonds, the percentages set forth below:
Class Margin
----- ------
A-1 0.28%
A-2 0.42%
A-3 0.60%
B 0.88%
C 1.55%
D 2.00%
E 2.35%
"Master Servicer": Banc One Mortgage Capital Markets, LLC, a
Delaware limited liability company, and its successors in interest, or any
successor servicer appointed as such as provided in the Servicing Agreement.
"Master Servicing Duties": The duties and obligations of the Master
Servicer under the Servicing Agreement.
"Master Servicer Fee": With respect to each Mortgage Loan and for
any Payment Date, an amount equal to one-twelfth of the product of (a) the
Master Servicing Fee Rate and (b) the Stated Principal Balance of each Mortgage
Loan as of the Due Date in the preceding calendar month, calculated on the basis
of a 360-day year consisting of twelve 30-day months. The Master Servicer Fee
includes the fee payable to the Primary Servicer.
"Master Servicing Fee Rate": A fee rate of 0.30%.
"Maturity": With respect to any Bond, the date, if any, as of which
the principal of and interest on such Bond (or in the case of the Class S and
Class X Bonds, the final Class S Scheduled Payment and Class X Scheduled
Payment, respectively, or the Class S Early Termination Amount and Class X Early
Termination Amount, respectively) has become due and payable as provided in the
Indenture, whether at the Stated Maturity Date, if any, by declaration of
acceleration or otherwise.
"Maximum Offered Bond Rate": With respect to any Offered Bond (other
than the Class S Bonds), 14.00% per annum.
"Monitoring Bondholder": Each Holder (or Bond Owner, if applicable)
of a Bond of a Monitoring Class as certified to the Indenture Trustee from time
to time by such Holder or Bond Owner.
"Monitoring Class": As defined in Section 11.01(c) of the
Servicing Agreement.
"Monthly Payment": The amount due in respect of any Mortgage Loan on
any related Due Date, equal to the amount of the monthly payment that is
scheduled to be due in respect thereof on such date in accordance with the terms
of such Mortgage Loan in effect on the Closing Date (including any adjustments
made from time to time after the Closing Date to the Mortgage Interest Rate in
accordance with such terms), and assuming that each prior Monthly Payment has
been made in a timely manner.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note, including the assignment of leases and rents related
thereto.
"Mortgage Collateral": As used with respect to the Bonds, the
Pledged Mortgage Loans plus all payments thereon after the Cut-Off Date
(excluding Prepayment Premiums collected on such Mortgage Loans), together with
the related Mortgage Loan Files and Servicing Files and the Issuer's interest in
any Mortgaged Property that secured any Mortgage Loan but which is acquired by
foreclosure or deed in lieu of foreclosure or otherwise after the Closing Date.
"Mortgage Interest Rate": With respect to any Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan in accordance with
the terms of the related Mortgage Note.
"Mortgage Loan": Each of the mortgage loans which has been Granted
as Collateral pursuant to the Indenture and accepted by the Indenture Trustee
pursuant to Section 13.01 of the Indenture and from time to time held by the
Indenture Trustee on behalf of the Bondholders, the Mortgage Loans so held
pursuant to Section 13.01 of the Indenture being identified on the Mortgage Loan
Schedule (including, any successor REO Mortgage Loan). As used in this
definition, the term "mortgage loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage Loan
File but does not include the right to any Prepayment Premiums remitted by a
Mortgagor with respect to a Mortgage Loan, which Prepayment Premiums shall be
the property of the Mortgage Loan Seller.
"Mortgage Loan Documents": With respect to each Mortgage Loan, to
the extent applicable, each document or instrument set forth in clauses
(i)-(viii) of the definition of Mortgage Loan File, any collateral assignments
of property management agreements and other services agreements required by the
applicable commitment and other loan documents and all assumption, modification,
consolidation, substitution and extension agreements, any physical assessment
report of the Mortgaged Property, all surveys, all insurance policies, any
environmental site assessment of the Mortgaged Property, any lease subordination
agreements and tenant estoppels, any borrower's counsel opinions and other
agreements, if any, pertaining to such Mortgage Loan.
"Mortgage Loan File": With respect to any Pledged Mortgage Loan,
collectively, the following documents:
(i) the original executed Mortgage Note (or, if accompanied by a
"lost note" affidavit, a copy thereof), endorsed by the
Mortgage Loan Seller or the prior holder of record, in blank
or as follows: "Pay to the order of LaSalle National Bank, as
indenture trustee for the registered holders of ICCMAC
Multifamily and Commercial Trust 1999-1, Collateralized
Mortgage Bonds, Series 1999-1, without recourse";
(ii) an original of the Mortgage and of any intervening assignments
thereof that precede the assignment referred to in clause (iv)
of this definition, with evidence of recording indicated
thereon (unless such document has not yet been returned from
the applicable recording office, in which case a certified
copy of such document as submitted for recording);
(iii) an original of any related Assignment of Leases and Rents (if
such item is a document separate from the Mortgage) and of any
intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, with evidence of
recording indicated thereon (unless such document has not yet
been returned from the applicable recording office, in which
case a certified copy of such document as submitted for
recording);
(iv) an original Assignment of Mortgage, executed by the Mortgage
Loan Seller or the prior holder of record, in blank or to the
order of the Indenture Trustee, with the assignment to the
Indenture Trustee in the following form: "LaSalle National
Bank, as indenture trustee for the registered holders of
ICCMAC Multifamily and Commercial Trust 1999-1, Collateralized
Mortgage Bonds, Series 1999-1," in recordable form;
(v) an original assignment of any related Assignment of Leases and
Rents (if such item is a document separate from the Mortgage),
executed by the Mortgage Loan Seller or the prior holder of
record, in blank or to the order of the Indenture Trustee,
with the assignment to the Indenture Trustee in the following
form: "LaSalle National Bank, as indenture trustee for the
registered holders of ICCMAC Multifamily and Commercial Trust
1999-1, Collateralized Mortgage Bonds, Series 1999-1," in
recordable form;
(vi) originals or certified copies of all assumption, modification,
consolidation, substitution and extension agreements in those
instances where the terms or provisions of the Mortgage or
Mortgage Note have been modified or the Mortgage or Mortgage
Note has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued on the date of the origination
of such Pledged Mortgage Loan, or, if such policy has not been
issued, an irrevocable, binding commitment to issue such title
insurance policy, or, with respect to each related Mortgage
Loan for which the related Mortgaged Property is located in a
jurisdiction which does not provide for a lender's title
insurance policy, an attorney's opinion of title by an
attorney licensed to practice Law in the jurisdiction where
the related Mortgaged Property is located;
(viii)either (A) the originals of all intervening assignments
(other than the assignments set forth above), if any,
including warehousing assignments, with evidence of recording
thereon, (B) copies of such assignments certified by a title
company, if any, or escrow company to be true and complete
copies thereof where the originals have been transmitted for
recording until such time as the originals are returned by the
public recording office, or (C) copies of such assignments
certified by the public recording offices where such
assignments were recorded to be true and complete copies
thereof in those instances where the public recording offices
retain the original or where the original recorded assignments
are lost; and
(ix) any escrow, guarantee and environmental liability agreement.
provided, that whenever the term "Mortgage Loan File" is used to refer to
documents actually received by the Indenture Trustee or by a Custodian on its
behalf, such term shall not be deemed to include such documents required to be
included therein unless they are actually so received, and with respect to any
receipt or certification by the Indenture Trustee or the Custodian for documents
described in clause (vi) of this definition, shall be deemed to include only
such documents to the extent a Responsible Officer of the Indenture Trustee or
Custodian has actual knowledge of their existence.
"Mortgage Loan Purchase Agreement": The Mortgage Loan Purchase
Agreement, dated as of February 1, 1999, between the Mortgage Loan Seller and
the Depositor regarding the sale, transfer and assignment of the Mortgage Loans
to the Depositor, a copy of which is attached to the Indenture as Exhibit F.
"Mortgage Loan Schedule": The list of Mortgage Loans sold by the
Mortgage Loan Seller to the Depositor pursuant to the Mortgage Loan Purchase
Agreement which were simultaneously transferred to the Issuer pursuant to the
Deposit Trust Agreement and pledged by the Issuer to the Indenture Trustee and
granted as Collateral to secure the Bonds pursuant to the Indenture. Such list
is attached to the Servicing Agreement as Exhibit A, to the Indenture as
Schedule I, and to the Mortgage Loan Purchase Agreement as Exhibit A.
"Mortgage Loan Seller": Imperial Credit Commercial Mortgage
Investment Corp., a Maryland corporation, and its successors in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgaged Property": The underlying property (including any REO
Property) that secures a Mortgage Loan, in each case consisting of a parcel or
parcels of land improved by a commercial and/or multifamily building or
facility, together with any personal property, fixtures, leases and other
property or rights pertaining thereto.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"New Lease": Any lease of an REO Property entered into at the
direction of the Special Servicer on behalf of the Issuer, including any lease
renewed, modified or extended on behalf of the Issuer, if the Issuer has the
right to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Advance previously made or proposed to
be made by the Master Servicer, the Special Servicer, the Indenture Trustee or
the Fiscal Agent, in respect of a Mortgage Loan which together with interest
thereon, in the reasonable good faith judgment of the Master Servicer, the
Special Servicer, the Indenture Trustee or the Fiscal Agent, as applicable, will
not, or, in the case of a proposed Advance, would not, together with interest at
the Advance Rate thereon, be ultimately recoverable by the Master Servicer, the
Special Servicer, the Indenture Trustee or the Fiscal Agent, as applicable, from
net proceeds and collections received solely with respect to such Mortgage Loan
or the related Mortgaged Property, including related Excess Insurance Proceeds,
Liquidation Proceeds, REO Proceeds, Excess Condemnation Proceeds and escrowed
amounts, which determination shall be set forth in a Nonrecoverable Advance
Certificate filed with the Indenture Trustee. The Indenture Trustee and the
Fiscal Agent may conclusively rely on the determination of nonrecoverability
made by the Master Servicer or the Special Servicer.
"Nonrecoverable Advance Certificate": A certificate signed by a
Servicing Officer of the Master Servicer, or by a Responsible Officer of the
Indenture Trustee or the Fiscal Agent, as applicable, setting forth the
determination of a Nonrecoverable Advance and the procedures and considerations
of the Master Servicer, the Special Servicer, the Indenture Trustee or the
Fiscal Agent, as applicable, forming the basis of such determination (including
but not limited to copies of information such as related income and expense
statements, any appraisals, rent rolls, occupancy status, property inspections,
and other Servicer inquiries with respect to the value of the related Mortgaged
Property).
"Non-Registered Bond": Any Bond that has not been registered under
the Securities Act. As of the Closing Date, the Non-Registered Bonds are the
Class X, Class F, Class G and Class H Bonds.
"Non-U.S. Person": A person other than a U.S. Person.
"Offered Bonds": Any Class X-0, Xxxxx X-0, Class S, Class A-3, Class
B, Class C, Class D or Class E Bond.
"Officer's Certificate": A certificate signed by any one Authorized
Officer of the Person from whom said certificate is required or, in the case of
an Officer's Certificate of the Issuer, a certificate signed by any Authorized
Officer of the Owner Trustee, and, to the extent delivered to the Indenture
Trustee, complying with the applicable requirements of Section 14.01 of the
Indenture. Unless otherwise specified, any reference in the Indenture to an
Officer's Certificate shall be to an Officer's Certificate of the Issuer.
"One-Month LIBOR": With respect to any Payment Date, the applicable
one-month LIBOR rate for one-month U.S. dollar deposits, determined as set forth
in Section 1.03 of the Indenture.
"Operative Agreements": The Indenture, the Servicing Agreement, the
Primary Servicing Agreement, the Deposit Trust Agreement, the Holding Trust
Agreement, the Administration Agreement, the Mortgage Loan Purchase Agreement
and the Warranty Agreement.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Issuer, the Depositor, the Mortgage Loan
Seller, the Master Servicer, or Special Servicer (if required to be delivered
under any of the Operative Agreements, then acceptable and delivered to the
Indenture Trustee), except that any opinion of counsel relating to (i) federal
income taxation matters, (ii) the resignation of the Master Servicer or the
Special Servicer pursuant to Section 3.11 of the Servicing Agreement, or (iii)
any actions or duties which cannot be undertaken or are no longer permitted
under applicable Law, must be an opinion of counsel who is Independent.
"Outstanding": Shall mean, as of any date of determination, all
Bonds theretofore authenticated and delivered under the Indenture, except:
(i) Bonds theretofore canceled by the Bond Registrar or delivered to
the Bond Registrar for cancellation;
(ii) Bonds or portions thereof for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Indenture Trustee or any other Paying Agent (other than the
Issuer) in trust for the Holders of such Bonds; provided,
however, that if such Bonds are to be redeemed, notice of such
redemption has been duly given pursuant to the Indenture or
provision therefor, satisfactory to the Indenture Trustee or any
other Paying Agent, has been made; and
(iii)Bonds in exchange for or in lieu of which other Bonds have been
authenticated and delivered pursuant to the Indenture, other than
any such Bonds in respect of which there shall have been
presented to the Bond Registrar proof satisfactory to it that
such Bonds are held by a bona fide purchaser in whose hands such
Bonds are valid obligations of the Issuer;
provided, however, that in determining whether the Holders of Bonds with the
requisite aggregate Bond Principal Amount, or representing the requisite
percentage of Voting Rights, have given any request, demand, authorization,
vote, direction, notice, consent or waiver hereunder, except as otherwise
expressly provided herein, Bonds owned by the Issuer, any other obligor on Bonds
or the Depositor (each of the foregoing Persons, solely for purposes of this
definition, an "Interested Person") or by any Affiliate of an Interested Person
shall be disregarded and deemed not to be Outstanding (unless any such Person or
Persons owns all the Bonds), except that, in determining whether the Indenture
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Bonds which the Bond
Registrar knows to be so owned shall be so disregarded, and also except that
Bonds so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Bond Registrar
in its sole discretion the pledgee's right to act with respect to such Bonds and
that the pledgee is not an Interested Person or any Affiliate of an Interested
Person.
"Owner Trustee": Wilmington Trust Company, a Delaware banking
corporation, or its successors in interest, in its capacity as trustee under the
Deposit Trust Agreement.
"Owner Trustee Calculation Fee Rate" With respect to any Payment
Date, the rate per annum represented by a fraction, (i) the numerator of which
is $4,000 and (ii) the denominator of which is Stated Principal Balance of the
Mortgage Loans as of the first day of the immediately preceding calendar month.
"Owner Trustee Fee": An annual fee of $4,000.00, payable monthly on
each Payment Date, plus any additional fees and expenses payable to the Owner
Trustee, as set forth in the written Fee and Indemnity Agreement among the Owner
Trustee, the Mortgage Loan Seller and the Depositor.
"Owner Trustee's Agent": Any agent or attorney of the Owner Trustee
appointed by the Owner Trustee to execute one or more of the trusts or powers
hereunder.
"Owner Trustee's Office": The principal corporate trust office of
the Owner Trustee at which, at any particular time, its corporate trust business
is administered, which office at the Closing Date is located at the address of
the Owner Trustee set forth in Section 13.4 of the Deposit Trust Agreement.
"Ownership Certificate": The certificate which represents 100% of
the Issuer's Equity, with an "Ownership Certificate" designation on the face
thereof, executed and authenticated by the Owner Trustee and substantially in
the form of Exhibit A attached to the Deposit Trust Agreement.
"Ownership Certificateholder": With respect to the Ownership
Certificate, the Person in whose name the Ownership Certificate is registered on
the Ownership Certificate Register. Initially, the Holding Trust shall be the
Ownership Certificateholder.
"Ownership Interest": As to any Bond, any ownership or security
interest in such Bond as the Holder thereof and any other interest therein,
whether direct or indirect, legal or beneficial, as owner or as pledgee.
"Paying Agent": The Indenture Trustee or any other Person that meets
the eligibility standards for a Paying Agent specified in Section 3.03 of the
Indenture and is authorized and appointed pursuant to Section 3.03 of the
Indenture by the Issuer to pay the principal of, or interest on any Bonds on
behalf of the Issuer. The principal office of the initial Paying Agent is
located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
"Payment Account": The segregated trust account or accounts created
and maintained by the Indenture Trustee pursuant to Section 8.01 of the
Indenture.
"Payment Date": The 25th day of each month, or if such 25th day is
not a Business Day, the next succeeding Business Day, commencing in March 1999.
The final Payment Date on any Bond shall occur only after due notice by the
Indenture Trustee and only upon presentation and surrender of such Bond at the
location specified on the notice given by the Indenture Trustee.
"P&I Advance": As to any Mortgage Loan, any advance made by the
Master Servicer, the Trustee or the Fiscal Agent pursuant to Section 4.05 of the
Servicing Agreement. 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 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.
"Percentage Interest": With respect to any Bond, the portion of the
relevant Class evidenced by such Bond, expressed as a percentage, the numerator
of which is the initial Bond Principal Amount of such Bond as of the Closing
Date, as specified on the face thereof, and the denominator of which is the
initial aggregate Bond Principal Amount of the relevant Class.
"Permitted Investments": Any one or more of the obligations and
securities listed below that provide for a date of maturity of not more than 30
days but in any event not later than the date prior to the date such funds will
be required to be available for distribution:
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America, or any agency or instrumentality of the
United States of America the obligations of which are backed by
the full faith and credit of the United States of America;
(ii) federal funds, time deposits in, unsecured certificates of
deposits of, or bankers' acceptances issued by, any depository
institution or trust company incorporated or organized under the
Laws of the United States of America or any state thereof and
subject to supervision and examination by federal and/or state
banking authorities, the commercial paper or other short-term
debt obligations of such depository institution or trust company
(or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the
commercial paper or other short-term debt obligations of such
holding company) which has the Required Rating and a maturity of
not more than 365 days;
(iii)commercial or finance company paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more
than 270 days after the date of issuance thereof) that has the
Required Rating for short-term debt;
(iv) repurchase obligations with respect to any security described in
clause (i) above entered into with a depository institution or
trust company (acting as principal) meeting the rating standards
described in clause (ii) above and having maturities of not more
than 365 days;
(v) units of taxable money market funds, which funds seek to maintain
a constant asset value and have been rated "AAAm" or "AAAmg" by
Standard & Poor's, and by any other Rating Agency in its highest
rating category, or which have been designated in writing by each
Rating Agency as Permitted Investments for purposes of this
definition; and
(vi) any other obligation or security acceptable to each Rating
Agency, as confirmed in writing that would not result in a
downgrading, qualification or withdrawal of the ratings then
assigned to the Bonds;
provided, however, that no such instrument shall be a Permitted Investment if
(v) such instrument evidences a right to receive either (A) only interest
payments with respect to the obligations underlying such instrument or (B) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations; (w) its terms do not have a
predetermined fixed dollar amount of principal due at maturity that cannot vary
or change; (x) to the extent rated, an "r" highlighter is affixed to its rating;
(y) to the extent the related interest rate is variable, interest thereon is not
tied to a single interest rate index plus a single fixed spread (if any), or
does not move proportionately with that index; or (z) such instrument is
purchased at a premium over par.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability corporation, limited liability company, limited liability partnership,
or government or any agency or political subdivision thereof.
"Phase I Environmental Report": A report similar in form and
substance to a "phase I" report, as described in, and meeting the criteria of,
(i) Chapter 5 of the Federal National Mortgage Association Multifamily Guide or
any successor provisions covering the same subject matter, in the case of
Specially Serviced Mortgage Loans as to which the related Mortgaged Property is
multifamily property or (ii) the American Society for Testing and Materials in
the case of Specially Serviced Mortgage Loans as to which the related Mortgaged
Property is a non-multifamily property.
"Plan": Any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code.
"Pledged Account": Any account, including the Collection Account and
the Payment Account, Granted as security for the Bonds.
"Pledged Mortgage Loan": Any one of the Mortgage Loans pledged to
the Indenture Trustee by the Issuer pursuant to the granting clause of the
Indenture, that from time to time are held as a part of the Trust Estate and as
are more fully described on Schedule I of the Indenture.
"Predecessor Bond": With respect to any Bond and Class, every
previous Bond and Class evidencing all or a portion of the same debt as that
evidenced by such Bond; for the purpose of this definition, any Bond
authenticated and delivered under Section 2.06 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Bond of the same Class shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Bond.
"Prepayment Interest Excess": With respect to any Payment Date, for
each Mortgage Loan that was subject to a Principal Prepayment in full or in part
after the Due Date occurring in the related Collection Period, the amount of
interest accrued at the Remittance Rate for such Mortgage Loan on the amount of
such Principal Prepayment during the period from and after such Due Date, to the
extent collected.
"Prepayment Interest Shortfall": With respect to any Payment Date,
for each Non-Specially Serviced Mortgage Loan that was subject to a Principal
Prepayment in full or in part prior to the Due Date occurring in the related
Collection Period, the amount of interest that would have accrued at the
Remittance Rate (but without subtracting the Indenture Trustee Fee from the
calculation thereof) for such Mortgage Loan on the amount of such Principal
Prepayment during the period commencing on the date as of which such Principal
Prepayment was applied to the unpaid principal balance of such Mortgage Loan and
ending on the day immediately preceding such Due Date, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable,
as set forth in the related Mortgage Note, by a Mortgagor in connection with a
Principal Prepayment. The right to receive Prepayment Premiums shall be retained
by the Mortgage Loan Seller.
"Primary Servicer": Initially, Southern Pacific Bank, pursuant to
the Primary Servicing Agreement.
"Primary Servicing Agreement": The Primary Servicing Agreement,
dated as of February 1, 1999, between the Master Servicer and the Primary
Servicer regarding the initial primary servicing of the Mortgage Loans (except
for Specially Serviced Mortgage Loans) by the Primary Servicer, and any
amendments or supplements thereto.
"Prime Rate": As of any day, the per annum rate reported as the
"Prime Rate" in The Wall Street Journal on the immediately preceding Business
Day.
"Principal Payment Amount": With respect to any Payment Date, the
aggregate of the following:
(i) the principal portions of all Monthly Payments (other than
Balloon Payments) due, and any Assumed Monthly Payments deemed
due, as the case may be, in respect of the Mortgage Loans for
their respective Due Dates occurring during the related
Collection Period, to the extent such Monthly Payments or Assumed
Monthly Payments, as applicable, are received during such
Collection Period or a P&I Advance is made with respect to such
Monthly Payments or Assumed Monthly Payments prior to such
Payment Date;
(ii) all payments (including Principal Prepayments and Balloon
Payments, but excluding Prepayment Premiums) and other
collections (including Liquidation Proceeds, Condemnation
Proceeds and Insurance Proceeds) that were received on or in
respect of the Mortgage Loans during the related Collection
Period and that were identified and applied by the Master
Servicer or Special Servicer, as applicable, as recoveries of
principal thereof, in each case net of any portion of such
payment or other collection that represents a recovery of the
principal portion of any Monthly Payment (other than a Balloon
Payment) due, or the principal portion of any Assumed Monthly
Payment deemed due, in respect of the related Mortgage Loan on a
Due Date during or prior to the related Collection Period and not
previously recovered; and
(iii)if such Payment Date is subsequent to the initial Payment Date,
the excess, if any, of (A) the Principal Payment Amount for the
immediately preceding Payment Date, over (B) the aggregate
payments of principal made in respect of the Bonds on such
immediately preceding Payment Date.
"Principal Prepayment": Any payment or other recovery of principal
on a Mortgage Loan that is received in advance of its scheduled Due Date which
is not accompanied by an amount of interest representing scheduled interest due
on any date or dates in any month or months subsequent to the month of
prepayment.
"Private Bonds": The Class X, Class F, Class G and Class H Bonds.
"Proceeding": Any suit in equity, action at Law or other judicial or
administrative proceeding.
"Property Protection Advance": Any expenses identified in the
Servicing Agreement as Property Protection Expenses which are required to be
advanced by the Master Servicer, or by the Special Servicer, consistent with
Accepted Master Servicing Practices or Accepted Special Servicing Practices, as
applicable, or by the Indenture Trustee or the Fiscal Agent, to the extent the
Master Servicer or the Special Servicer fails to make such advances.
"Property Protection Expenses": The following costs and expenses,
but, with respect to items (ii) through (xiii) below, only to the extent that
they are paid to third persons in arms' length arrangements, which may, to the
extent expressly approved in the related Asset Strategy Report as to the Special
Servicer, be Affiliates, who are generally in the business of providing such
goods and services and that such expenses are reasonable for the types of goods
or services provided in the geographical area in which such goods or services
are provided: (i) real estate taxes, assessments and similar charges; (ii)
premiums for insurance; (iii) utility costs; (iv) payments required under
service contracts, including but not limited to service contracts for heating,
ventilation and air conditioning systems, elevators, landscape maintenance, pest
extermination, security, model furniture, swimming pool service, trash removal,
answering service, credit checks and monitoring the satisfaction of real estate
tax assessments and the designation from time to time of special flood hazard
areas; (v) payroll costs and benefits for on-site maintenance personnel,
including but not limited to housekeeping employees, porters and general
maintenance and security employees; (vi) property management fees; (vii) usual
and customary leasing and sales brokerage expenses and commissions and other
costs and expenses associated with marketing, selling or otherwise disposing of
Specially Serviced Mortgage Loans or REO Properties including, without
limitation, marketing brochures, auction services, reasonable legal fees,
surveys, title insurance premiums and other title company costs; (viii) permits,
licenses and registration fees and costs; (ix) any expense necessary in order to
prevent or cure a breach under a lease, contract or agreement, if the
consequences of failure to prevent or cure could, in the sole judgment of the
Special Servicer, have a material adverse effect with respect to the Mortgage
Loan, REO Property or Mortgaged Property; (x) any expense necessary in order to
prevent or cure a material violation of any applicable Law, regulation, code or
ordinance with respect to any Mortgaged Property, including without limitation
any environmental remediation; (xi) costs and expenses of appraisals,
valuations, surveys, inspections, environmental assessments, credit reports, or
market studies (including, in each case, review thereof); (xii) other such
reasonable marketing, legal, accountants expert witness fees and other fees and
expenses incurred by the Special Servicer in connection with the enforcement,
collection, foreclosure, management and operation of Specially Serviced Mortgage
Loans or REO Properties, the bankruptcy of any related Mortgagor, and the
performance of their servicing duties under the Servicing Agreement; and (xiii)
such other expenses as are reasonable and immediately necessary to operate a
Mortgaged Property or REO Property and to protect and maintain the lien of the
Mortgage on such Mortgaged Property or REO Property or to enforce the related
Mortgage Loan Documents.
"Prospectus": The prospectus, dated February 19, 1999 of the
Depositor.
"Prospectus Supplement": The prospectus supplement, dated March 5,
1999 to the Prospectus prepared by the Depositor in connection with the offering
of the Class X-0, Xxxxx X-0, Class S, Class A-3, Class B, Class C, Class D and
Class E Bonds.
"PTCE": A "prohibited transaction class exemption", as related to
ERISA.
"Purchase Price": With respect to any Mortgage Loan, the unpaid
principal balance thereof as of the date of purchase, together with (i) all
unpaid accrued interest thereon at the Mortgage Interest Rate on such Mortgage
Loan from the date as to which interest was last paid by the related Mortgagor
to the Due Date in the Collection Period in which the relevant repurchase is to
occur, (ii) all related unreimbursed Property Protection Advances, (iii) all
accrued and unpaid interest on related Advances, (iv) any related compensation
payable to the Special Servicer, and (v) any expense arising out of the
enforcement of the repurchase obligation and any costs associated with such
repurchase.
"QIB": A "qualified institutional buyer" within the meaning of Rule
144A.
"QRS": A "qualified REIT subsidiary" within the meaning of Section
856(i) of the Code.
"Qualified Insurer": An insurance company:
(i) duly qualified as such under the Laws of the state in which the
related Mortgaged Property is located;
(ii) duly authorized and, if required, licensed in such state to
transact the applicable insurance business and to write the
insurance provided; and
(iii)whose claims paying ability is rated at least "A" by each Rating
Agency (or, if not rated by each of the Rating Agencies, rated at
least "A" by Standard & Poor's and any other nationally
recognized statistical rating organization which rates the claims
paying ability of such insurance company.
"Rated Bond": Any of the Class X-0, Xxxxx X-0, Class S, Class A-3,
Class B, Class C, Class D, Class E, Class X, Class F, Class G and Class H Bonds.
"Rating Agency": Each of Standard & Poor's and DCR.
"Real Estate Loan Purchase and Sale Agreements": Collectively, those
four individual Agreements for Purchase and Sale of Real Estate Loans, dated as
of October 1, 1997, December 8, 1997, March 27, 1998 and June 30, 1998, each
between the Mortgage Loan Seller and the Loan Originator, whereby the Mortgage
Loan Seller acquired the Mortgage Loans from the Loan Originator.
"Realized Loss": With respect to each Loss Mortgage Loan for which
(A) an event set forth in clause (i) or (ii) of the definition of Loss Mortgage
Loan has occurred, an amount equal to (i) the Stated Principal Balance of the
Loss Mortgage Loan as of the date of such event, plus (ii) interest at the
Remittance Rate from the Due Date as to which interest was last paid or advanced
to Bondholders up to the last day of the month in which such event occurred on
the Stated Principal Balance of such Loss Mortgage Loan outstanding during each
Collection Period that such interest was not paid or advanced, plus (iii) any
unreimbursed Advances and interest accrued and payable thereon at the Advance
Rate, minus (iv) the proceeds, if any, received during the month in which such
event occurred, to the extent applied as recoveries of interest at the
Remittance Rate and to principal of the Mortgage Loan, or (B) an event set forth
in clause (iii) of the definition of Loss Mortgage Loan has occurred, the amount
determined to have been permanently forgiven.
With respect to each Loss Mortgage Loan with respect to which an
Advance previously made has been determined to be a Nonrecoverable Advance an
amount (not less than zero) equal to (i) the Stated Principal Balance of the
Mortgage Loan (or REO Mortgage Loan) as of the date of such determination, plus
(ii) interest at the Remittance Rate from the Due Date as to which interest was
last paid or advanced to Bondholders up to the last day of the month in which
such determination was made on the Stated Principal Balance of such Mortgage
Loan (or REO Mortgage Loan) outstanding during each Collection Period that such
interest was not paid or advanced, plus (iii) any unreimbursed Advances and
interest accrued and payable thereon at the Advance Rate, minus (iv) the
proceeds, if any, received during the month in which such determination was
made, to the extent applied as recoveries of interest at the Remittance Rate and
to principal of the Mortgage Loan.
With respect to each Mortgage Loan which has become the subject of a
Deficient Valuation, the difference between the principal balance of the
Mortgage Loan outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the Deficient Valuation.
Realized Losses will not be allocated to reduce the Bond Principal Amounts of
the Bonds.
"Record Date": With respect to any Class of Bonds, the Ownership
Certificate or the Holding Trust Certificate for any Payment Date, the last
Business Day of the month immediately preceding the month in which the related
Payment Date occurs (or, in the case of the first Payment Date, the Closing
Date).
"Redemption Date": The Payment Date specified by the Indenture
Trustee for the redemption of Bonds of any Class pursuant to Section 11.01 of
the Indenture.
"Redemption Price": The greater of (i) the Bond Redemption Amount
and (ii) the aggregate fair market value of the Mortgage Loans and any REO
Properties included in the Trust Estate.
"Registration Statement": The Depositor's Registration Statement on
Form S-3, No. 333-61305, which was filed with the Commission pursuant to the
Securities Act and declared effective on November 20, 1998.
"Registered Bond": Any Bond registered under the Securities Act.
"Registered Holder": The Person whose name appears on the Bond
Register on the applicable Record Date.
"REIT": A "real estate investment trust" within the meaning of
Section 856(a) of the Code.
"Remittance Date": With respect to each Payment Date, one Business
Day preceding such Payment Date.
"Remittance Rate": With respect to any Mortgage Loan as of any
Payment Date, the per annum rate equal to the excess of the related Mortgage
Interest Rate (without giving effect to any modification, waiver, or amendment
or other reduction thereof following the Cut-Off Date) after giving effect to
the Master Servicer Fee and the Indenture Trustee Fee on the Mortgage Loans as
of the Due Date in the month preceding the month in which such Payment Date
occurs.
"Remittance Report": The report prepared pursuant to Section 4.09(a)
of the Servicing Agreement.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": The trust account or accounts created and maintained
by the Master Servicer pursuant to Section 6.06 of the Servicing Agreement which
shall be entitled "Banc One Mortgage Capital Markets, LLC, in trust for LaSalle
National Bank, as Indenture Trustee, in trust for Holders of ICCMAC Multifamily
and Commercial Trust 1999-1, Collateralized Mortgage Bond Series 1999-1, REO
Account" and which must be an Eligible Account.
"REO Account Report": The report prepared pursuant to Section
6.08(b) of the Servicing Agreement.
"REO Acquisition": The acquisition by the Special Servicer on behalf
of the Issuer for the benefit of the Bondholders of any Mortgaged Property.
"REO Mortgage Loan": Any Mortgage Loan as to which the related
Mortgaged Property has been acquired by the Special Servicer on behalf of the
Issuer through foreclosure or by deed in lieu of foreclosure, or otherwise in
connection with a defaulted Mortgage Loan, until the Special Servicer has
determined that all amounts that it reasonably expects to recover from or on
account of such Mortgage Loan have been recovered, whether from Excess
Condemnation Proceeds, Excess Insurance Proceeds, Condemnation Proceeds,
Insurance Proceeds, Liquidation Proceeds, REO Proceeds or otherwise (in which
case such Mortgage Loan shall no longer be an REO Mortgage Loan).
"REO Proceeds": Proceeds received in respect of any REO Property
(including, without limitation, proceeds from the rental of the related
Mortgaged Property).
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Issuer and is part of the Trust Estate securing the
Bonds through foreclosure, deed-in-lieu of foreclosure or otherwise in
connection with a defaulted Mortgage Loan.
"Representative": X.X. Xxxxxx Securities Inc., acting on behalf of
the several Underwriters pursuant to the Underwriting Agreement.
"Request for Release and Receipt of Documents": A written Request
for Release and Receipt of Documents, substantially in the form of Exhibit B to
the Servicing Agreement.
"Required Rating": For purposes of the definition of "Permitted
Investments" the following ratings:
(a) with respect to commercial paper, short-term debt obligations or
other short-term deposits, the highest short-term rating category of each Rating
Agency (or, if such obligations are not rated by DCR, any two nationally
recognized statistical rating organizations, which shall include Standard &
Poor's and any other rating agency which rates such obligations or deposits; or
(b) with respect to long-term debt obligations, the highest
long-term rating category of each Rating Agency (or, if such obligations are not
rated by DCR, any two nationally recognized statistical rating organizations,
which shall include Standard & Poor's and any other rating agency which rates
such obligations or deposits.
"Resolution": A copy of a resolution certified by an Authorized
Officer of the Owner Trustee to have been duly adopted by the Owner Trustee and
to be in full force and effect on the date of such certification.
"Responsible Officer": As used with respect to the Indenture Trustee
or the Fiscal Agent, any officer assigned to and working in its Asset Backed
Securities Trust Services Group with direct responsibility for the
administration of the Servicing 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.
As used with respect to the Owner Trustee, any officer of the Owner
Trustee assigned to the Owner Trustee's Office with direct responsibility for
the administration of the Owner Trust Agreement and also, with respect to a
particular matter, any officer of the Owner Trustee employed within the Owner
Trustee's Office, 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 appears on a list of corporate trust officers
furnished to the Depositor and the Indenture Trustee by the Owner Trustee, as
such list may from time to time be amended.
As used with respect to the Holding Trustee, any officer of the
Holding Trustee assigned to the Holding Trustee's Office with direct
responsibility for the administration of the Holding Trust Agreement and also,
with respect to a particular matter, any officer of the Holding Trustee employed
within the Holding Trustee's Office, 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 appears on a list of
corporate trust officers furnished to the Trustor by the Holding Trustee, as
such list may from time to time be amended.
"Retained Public Bonds": The Class D and Class E Bonds.
"Rule 144A": Rule 144A under the Securities Act.
"Scheduled Payments": Any of the Class S Scheduled Payments and the
Class X Scheduled Payments, as applicable.
"Securities Act": The Securities Act of 1933, as amended, and the
rules, regulations and published interpretations of the Commission promulgated
thereunder from time to time.
"Servicer": The Master Servicer or the Special Servicer, as
applicable.
"Servicer Event of Default": One or more of the events described
in Section 9.01 of the Servicing Agreement.
"Servicing Agreement": The Servicing Agreement dated as of February
1, 1999, among the Issuer, the Indenture Trustee, the Fiscal Agent, the Master
Servicer and the Special Servicer, and any amendments or supplements thereto.
"Servicing Expense": Any fees, expenses or advances payable or
reimbursable to the Master Servicer or the Special Servicer under the Servicing
Agreement or otherwise in connection with the servicing and administration of
the Mortgage Collateral thereunder.
"Servicing Fee": With respect to any Mortgage Loan and (a) the
Master Servicer, the Master Servicer Fee; or (b) the Special Servicer, the
Special Servicing Fee, as applicable.
"Servicing Files": With respect to any Mortgage Loan:
(i) each related appraisal;
(ii) any related physical assessment report;
(iii)any related Environmental Site Assessment;
(iv) each related Insurance Policy required by the terms of the
Mortgage Loan Documents together with proof of payment of
premiums relating thereto; and
(v) any and all documents in the possession of the Mortgage Loan
Seller or any Affiliate or agent thereof generated or obtained in
connection with the origination or servicing of such Mortgage
Loan (other than any document included in the definition of
"Mortgage Loan File").
"Servicing Officer": With respect to any Servicer, any Assistant
Treasurer, Assistant Secretary, Assistant Vice President, Vice President or
other employee of such Servicer or its general partner, if applicable, involved
in, or responsible for, the administration and servicing of the Mortgage Loans
under the Servicing Agreement and authorized to act on behalf of such Servicer,
as designated by inclusion on a list of such Persons furnished to the Indenture
Trustee and each other Servicer by the related Servicer, as such list may from
time to time be amended by the related Servicer.
"Servicing Transfer Date": The date after (i) the occurrence of a
Servicing Transfer Event and (ii) the Special Servicer receives the information,
documents and records required to be delivered thereto pursuant to Section
6.02(c) of the Servicing Agreement.
"Servicing Transfer Event": The occurrence of any of the following
with respect to a Mortgage Loan: (i) such Mortgage Loan becomes a Defaulted
Mortgage Loan; (ii) the related Mortgagor has entered into or consented to
bankruptcy, appointment of a receiver or conservator or a similar insolvency or
similar proceeding, or the Mortgagor has become the subject of a decree or order
for such proceeding which shall have remained in force undischarged or unstayed
for a period of 60 days; (iii) the Master Servicer shall have received notice of
the foreclosure or proposed foreclosure of any other lien on the Mortgaged
Property; (iv) in the judgment of the Master Servicer, a payment default has
occurred and is not likely to be cured by the related Mortgagor within 60 days;
(v) the related Mortgagor admits in writing its inability to pay its debts
generally as they become due, files a petition to take advantage of any
applicable insolvency or reorganization statute, makes an assignment for the
benefit of its creditors, or voluntarily suspends payment of its obligations;
(vi) any other material default has, in the Master Servicer's judgment, occurred
which is not reasonably susceptible of cure within the time periods and on the
terms and conditions, if any, provided in the related Mortgage; (vii) the
related Mortgaged Property becomes REO Property; (viii) if for any reason, the
Master Servicer cannot enter into an assumption agreement upon the transfer by
the related Mortgagor of the Mortgage; or (ix) an event has occurred which, in
the reasonable judgment of the Master Servicer, has or will materially and
adversely affect the value of the Mortgaged Property.
"Shortfall Amount": Any Class S Shortfall or Class X Shortfall,
as applicable.
"Special Servicer's Appraisal Reduction Estimate": Any estimate of
the value of a Mortgaged Property prepared by the Special Servicer as required
by Section 6.13(a) of the Servicing Agreement.
"Special Servicer": Banc One Mortgage Capital Markets, LLC, a
Delaware limited liability company, or its successors in interest or any
successor special servicer appointed as such as provided in the Servicing
Agreement.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and any Payment Date, an amount equal to one-twelfth of the
product of (a) the Special Servicing Fee Rate and (b) the Stated Principal
Balance of each Specially Serviced Mortgage Loan or REO Mortgage Loan as of the
Due Date in the preceding calendar month, calculated on the basis of a 360-day
year consisting of twelve 30-day months.
"Special Servicing Fee Rate": A fee rate of 0.45%.
"Specially Serviced Mortgage Loan": Any Mortgage Loan with respect
to which a Servicing Transfer Event has occurred and which has not ceased to be
a Specially Serviced Mortgage Loan pursuant to Section 6.10 of the Servicing
Agreement.
"Specially Serviced Mortgage Loan Status Report": With respect to
any Mortgage Loan, shall have the meaning set forth in Section 6.08 of the
Servicing Agreement.
"Standard & Poor's": Standard & Poor's Rating Services, a division
of the XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"State": Any one of the 50 states of the United States of America,
or the District of Columbia.
"Stated Maturity Date": June 1, 2030, which is the Payment Date
occurring two years after the scheduled Loan Maturity Date of the latest
maturing Mortgage Loan.
"Stated Principal Balance": With respect to any Mortgage Loan
(other than an REO Mortgage Loan), as of any date of determination, an amount
equal to (x) the related Cut-Off Date Balance, minus (y) the sum, without
duplication, of:
(i) the principal portion of each Monthly Payment and Balloon Payment
due on such Mortgage Loan after the Cut-Off Date, to the extent
received from the Mortgagor or advanced by the Master Servicer,
Indenture Trustee or Fiscal Agent (in the case of any delinquent
Monthly Payment) and distributed to Bondholders prior to such
date of determination;
(ii) all Principal Prepayments received with respect to such Mortgage
Loan after the Cut-Off Date, to the extent distributed to
Bondholders prior to such date of determination.
(iii)the principal portion of all Insurance Proceeds and Liquidation
Proceeds received with respect to such Mortgage Loan after the
Cut-Off Date, to the extent distributed to Bondholders prior to
such date of determination; and
(iv) any reduction in the outstanding principal balance of such
Mortgage Loan resulting from a Deficient Valuation that occurred
prior to the end of the Collection Period for the most recent
Payment Date.
With respect to any REO Mortgage Loan, as of any date of determination, an
amount (not less than zero) equal to (x) the Stated Principal Balance of the
related Mortgage Loan as of the date of the related REO Acquisition, minus (y)
the sum of:
(i) the principal portion of each P&I Advance made with respect to
such REO Mortgage Loan that was distributed to Bondholders prior
to such date of determination; and
(ii) the principal portion of all Insurance Proceeds, Liquidation
Proceeds and REO Proceeds received with respect to such REO
Mortgage Loan, to the extent distributed to Bondholders prior to
such date of determination.
A Mortgage Loan shall be deemed to be owned by the Issuer and pledged as
Collateral to secure the Bonds and to have an outstanding Stated Principal
Balance through and including the Payment Date on which the proceeds, if any,
received in connection with a Liquidation Event in respect thereof are to be
distributed to Bondholders.
"Successor Person": As defined in Section 3.13(a) of the Indenture.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a Bond.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Bond.
"Transferor": Any Person who is Transferring any Ownership Interest
in a Bond.
"Treasury Regulations": Temporary, final or proposed regulations (to
the extent that by reason of their proposed effective date such proposed
regulations would apply to the Issuer or a Trust Estate) of the United States
Department of the Treasury.
"Trust": The Issuer.
"Trust Estate": The corpus of the Trust created by the Depositor as
of the Closing Date and to be administered pursuant to the Deposit Trust
Agreement, consisting of all of the Issuer's right, title and interest in and to
any and all benefits accruing to the Issuer from: (a) the Mortgage Loans listed
in the Mortgage Loan Schedule annexed to the Indenture as Schedule I, and all
payments thereon after the Cut-Off Date (excluding the right to receive
Prepayment Premiums with respect to the Mortgage Loans), together with the
related Mortgage Loan Files and Servicing Files and the Issuer's interest in any
Mortgaged Property that secured any such Mortgage Loan, but which is acquired by
foreclosure or deed in lieu of foreclosure or otherwise after the Closing Date;
(b) the rights of the Issuer to enforce remedies against the Master Servicer,
the Special Servicer, the Indenture Trustee or the Fiscal Agent under the
Servicing Agreement, against the Administrator under the Administration
Agreement, against the Depositor under the Deposit Trust Agreement and, as
assignee of the Depositor, against the Mortgage Loan Seller under the Mortgage
Loan Purchase Agreement or the Loan Originator under the Warranty Agreement; (c)
the Payment Account; (d) the Collection Account; (e) all present and future
claims, demands, causes and choses in action in respect of the foregoing,
including the rights of the Issuer under the Pledged Mortgage Loans; and (f) all
proceeds of the foregoing of every kind and nature whatsoever, including,
without limitation, all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind, and other forms of obligations and receivables, instruments and
other property which at any time constitute all or part of or are included in
the proceeds of any of the foregoing.
"Trust Indenture Act" or "TIA": The Trust Indenture Act of 1939, as
amended, and the rules, regulations and published interpretations of the
Commission promulgated thereunder from time to time.
"Trustor": The Mortgage Loan Seller, solely in its capacity as the
trustor of the Holding Trust created pursuant to the Holding Trust Agreement.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana or the Commonwealth of Puerto Rico,
the comparable provisions of Louisiana or Puerto Rico Law, as applicable.
"Unaffiliated Party": With respect to any Person, any Person other
than an Affiliate.
"Underwriters": X.X. Xxxxxx Securities Inc., Prudential Securities
Incorporated and Imperial Capital, LLC (an Affiliate of the Depositor and the
Mortgage Loan Seller).
"Underwriting Agreement": A certain underwriting agreement, dated
March 5, 1999, among the several Underwriters, as purchasers of the Underwritten
Bonds, the Depositor and the Mortgage Loan Seller.
"Underwritten Bonds": The Class X-0, Xxxxx X-0, Class S, Class A-3,
Class B and Class C Bonds.
"Uniform Commercial Code" or "UCC": The Uniform Commercial Code as
in effect in any applicable jurisdiction, as amended from time to time.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in or under the Laws of the
United States or any political subdivision thereof, an estate whose income is
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 as of
August 20, 1996 which are eligible to elect to be treated as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Bonds which is assigned to any Class of Bond as of the date of determination.
The voting rights shall be (i) (A) 2.0% in the case of the Class S Bonds,
provided that the Voting Rights of the Class S Bonds shall be reduced to zero
upon the payment in full of all the Class S Scheduled Payments and any unpaid
Class S Shortfalls and accrued interest thereon (B) 1.0% in the case of the
Class X Bonds, provided that the Voting Rights of the Class X Bonds will be
reduced to zero upon the payment in full of all the Class X Scheduled Payments
and any unpaid Class X Shortfalls and accrued interest thereon (as used in this
definition, the sum of such percentages from time to time, is referred to as the
"Fixed Voting Rights Percentage"); and (ii) in the case of the Class A-1, Class
A-2, Class A-3, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Bonds, a percentage equal to product of (A) 100% minus the Fixed Voting Rights
Percentage multiplied by (B) a fraction, the numerator of which is equal to the
aggregate Outstanding Bond Principal Amount of any such Class (the Bond
Principal Amount of each of the Class H, Class G, Class F, Class E, Class D,
Class C, Class B and Class A-3 Bonds shall be notionally reduced, in that order
and solely for the purposes of determining the Voting Rights of the related
Class on any such Payment Date to the extent of any Appraisal Reduction Amounts
and Realized Losses notionally allocated to such Class, if applicable, on such
Payment Date) and the denominator of which is equal to the aggregate Outstanding
Bond Principal Amounts of all Classes of Bonds (other than the Class S and Class
X Bonds), which shall be reduced solely for this purpose by the aggregate amount
of any Appraisal Reduction Amounts and Realized Losses notionally allocated to
such Classes, if applicable. To the extent that the aggregate of the Appraisal
Reduction Amounts and Realized Losses for any Payment Date exceed the Bond
Principal Amount for any Class, such excess will be applied to notionally reduce
the Bond Principal Amount of the next most subordinate Class of Bonds on such
Payment Date solely for such purpose, provided, however, that no Bond Principal
Amount in respect of any such Class may be notionally reduced below zero. The
Voting Rights of any Class of Bonds shall be allocated among the Bondholders of
such Class in proportion to their respective Percentage Interests.
"Weighted Average Remittance Rate": With respect to any Payment
Date, (i) the rate per annum equal to the weighted average, by Stated Principal
Balance, expressed as a percentage and rounded to eight decimal places, of the
Remittance Rates on the Mortgage Loans prior to giving effect to distributions
thereon in the Collection Period immediately preceding such Payment Date, less
(ii) the Additional Fee Rate; provided that for purposes of calculating the
Weighted Average Remittance Rate, the Mortgage Interest Rates will not reflect
any default interest or increase in a Mortgage Interest Rate occurring after the
related Loan Maturity Date. The Mortgage Interest Rates will also be determined
without regard to any Mortgage Loan modifications, waivers or amendments entered
into after the Cut-Off Date. If a Mortgage Loan accrues interest based on a
360-day year consisting of twelve 30-day months, its interest rate for any month
that is not a 30-day month will be recalculated so that the amount of interest
that would accrue at that rate in such month, calculated based on the actual
number of days elapsed in such month and a 360-day year, will equal the amount
of interest that actually accrues on that Mortgage Loan in that month.
"Workout Fee": The fee payable at the Workout Fee Rate to the
Special Servicer with respect to each Corrected Mortgage Loan.
"Workout Fee Rate": A fee with respect to a Corrected Mortgage Loan
of 1.0% of each collection of interest (other than default interest) and
principal (including Monthly Payments, Principal Prepayments, and Balloon
Payments at the Loan Maturity Date), received on each Corrected Mortgage Loan
for so long as it remains a Corrected Mortgage Loan.
