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NATIONSLINK FUNDING CORPORATION,
Depositor,
NATIONSBANK, N.A.,
Mortgage Loan Seller,
CAPITAL LEASE FUNDING, L.P.,
Mortgage Loan Seller,
MIDLAND LOAN SERVICES, INC.
Master Servicer and Special Servicer,
LASALLE NATIONAL BANK,
Trustee and REMIC Administrator,
and
ABN AMRO BANK n.v.,
Fiscal Agent,
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POOLING AND SERVICING AGREEMENT
Dated as of February 15, 1999
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$492,491,697
Commercial Loan Pass-Through Certificates
Series 1999-LTL-1
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
AND THE CERTIFICATES
SECTION 1.01 Defined Terms
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans
SECTION 2.02 Acceptance of REMIC I by Trustee
SECTION 2.03 Mortgage Loan Sellers'Repurchase of Mortgage Loans for
Document Defects and Certain Breaches of Representations and
Warranties
SECTION 2.04 Representations and Warranties of the Depositor
SECTION 2.05 Representations and Warranties of the Mortgage Loan Sellers
SECTION 2.06 Representations, Warranties and Covenants of the Master
Servicer
SECTION 2.07 Representations, Warranties and Covenants of the Special
Servicer
SECTION 2.08 Representations and Warranties of the Trustee and the REMIC
Administrator
SECTION 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests
SECTION 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee
SECTION 2.11 Issuance of the REMIC II Certificates
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans
SECTION 3.02 Collection of Mortgage Loan Payments; Rent Escrow Account
SECTION 3.03 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Servicing Advances; Reserve Accounts
SECTION 3.04 Certificate Account, the Distribution Account and the REMIC II
Distribution Account
SECTION 3.05 Permitted Withdrawals From the Certificate Account and the
Distribution Account
SECTION 3.06 Investment of Funds in the Investment Accounts
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing
SECTION 3.09 Realization Upon Defaulted Mortgage Loans
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files
SECTION 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee and
Fiscal Agent Regarding Back-up Servicing Advances
SECTION 3.12 Inspections; Collection of Financial Statements
SECTION 3.13 Annual Statement as to Compliance
SECTION 3.14 Reports by Independent Public Accountants
SECTION 3.15 Access to Certain Information
SECTION 3.16 Title to REO Property; REO Account
SECTION 3.17 Management of REO Property
SECTION 3.18 Sale of Mortgage Loans and REO Properties
SECTION 3.19 Additional Obligations of the Master Servicer and the Special
Servicer
SECTION 3.20 Modifications, Waivers, Amendments and Consents
SECTION 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report
SECTION 3.22 Sub-Servicing Agreements
SECTION 3.23 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class
SECTION 3.24 Confidentiality
SECTION 3.25 No Solicitation of Prepayments
SECTION 3.26 Certain Matters with Respect to Loans Permitting Defeasance,
Franchise Loans and Certain Loans Permitting Additional Debt
SECTION 3.27 Performance of Borrower Credit Lease Obligations; Expense
Reserve Fund
SECTION 3.28 Maintenance of Lease Enhancement Policies
SECTION 3.29 Maintenance of Extended Amortization Policies
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01 Distributions on the Certificates
SECTION 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer
SECTION 4.03 P&I Advances
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates
SECTION 5.02 Registration of Transfer and Exchange of Certificates
SECTION 5.03 Book-Entry Certificates
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates
SECTION 5.05 Persons Deemed Owners
SECTION 5.06 Certification by Certificate Owners
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLERS, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan Sellers, the
Master Servicer, the Special Servicer and the REMIC
Administrator
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special
Servicer or the REMIC Administrator
SECTION 6.03 Limitation on Liability of the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator and Others
SECTION 6.04 Master Servicer, Special Servicer and REMIC Administrator Not
to Resign
SECTION 6.05 Rights of the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default
SECTION 7.02 Trustee to Act; Appointment of Successor
SECTION 7.03 Notification to Certificateholders
SECTION 7.04 Waiver of Events of Default
SECTION 7.05 Additional Remedies of Trustee Upon Event of Default
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee
SECTION 8.02 Certain Matters Affecting the Trustee
SECTION 8.03 Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans
SECTION 8.04 Trustee May Own Certificates
SECTION 8.05 Fees of Trustee; Indemnification of Trustee
SECTION 8.06 Eligibility Requirements for Trustee
SECTION 8.07 SECTION 8.07 Resignation and Removal of the Trustee
SECTION 8.08 Successor Trustee and Fiscal Agent
SECTION 8.09 Merger or Consolidation of Trustee or Fiscal Agent
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee
SECTION 8.11 Appointment of Custodians
SECTION 8.12 SECTION 8.12 Access to Certain Information
SECTION 8.13 Filings with the Securities and Exchange Commission
SECTION 8.14 Fiscal Agent Appointed; Concerning the Fiscal Agent
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Mortgage
Loans
SECTION 9.02 Additional Termination Requirements
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 SECTION 10.01 REMIC Administration
SECTION 10.02 Depositor, Master Servicer, Special Servicer and Trustee to
Cooperate with REMIC Administrator
SECTION 10.03 Fees of the REMIC Administrator
SECTION 10.04 Use of Agents
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment
SECTION 11.02 Recordation of Agreement; Counterparts
SECTION 11.03 Limitation on Rights of Certificateholders
SECTION 11.04 Governing Law
SECTION 11.05 Notices
SECTION 11.06 Severability of Provisions
SECTION 11.07 Successors and Assigns; Beneficiaries
SECTION 11.08 Article and Section Headings
SECTION 11.09 Notices to and from Rating Agencies
SECTION 11.10 Standing Requests for Information
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class X Certificate
EXHIBIT A-5 Form of Class B Certificate
EXHIBIT A-6 Form of Class C Certificate
EXHIBIT A-7 Form of Class D Certificate
EXHIBIT A-8 Form of Class E Certificate
EXHIBIT A-9 Form of Class F Certificate
EXHIBIT A-10 Form of Class G Certificate
EXHIBIT A-11 Form of Class R-I Certificate
EXHIBIT A-12 Form of Class R-II Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to
Section 5.02(d)(i)(D)
EXHIBIT D Request for Release
EXHIBIT E Form of REO Status Report
EXHIBIT F Form of ERISA Representation Letter
EXHIBIT G Form of Certificateholder Confirmation Certificate
EXHIBIT H Form of Prospective Purchaser Certificate
EXHIBIT I Form of Lease Enhancement Policy
EXHIBIT J Form of Extended Amortization Policy
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Sub-Servicing Agreements in Effect as of the Closing Date
SCHEDULE III Reserved
SCHEDULE IV Reserved
SCHEDULE V Credit Lease Loan Exception Schedule
SCHEDULE VI Schedule of Exceptions to Mortgage File Delivery
This Pooling and Servicing Agreement (this "Agreement"), is dated
and effective as of February 15, 1999, among NATIONSLINK FUNDING CORPORATION, as
Depositor, NATIONSBANK, N.A., as Mortgage Loan Seller, CAPITAL LEASE FUNDING,
L.P., as Mortgage Loan Seller, MIDLAND LOAN SERVICES, INC., as Master Servicer
and as Special Servicer, LASALLE NATIONAL BANK, as Trustee and as REMIC
Administrator, and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder
in multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust to be created hereunder.
As provided herein, the Trustee will elect that the Trust Fund,
exclusive of the Expense Reserve Fund, be treated for federal income tax
purposes as two separate real estate mortgage investment conduits ("REMIC I" and
the "REMIC II," respectively). The Class A-1, Class A-2, Class A-3, Class X,
Class B, Class C, Class D, Class E, Class F and Class G Certificates constitute
"regular interests" in REMIC II, and the Class R-II Certificates constitute the
sole class of "residual interest" in REMIC II for purposes of the REMIC
Provisions. The Class LA-1, Class LA-2, Class LA-3, Class LB, Class LC, Class
LD, Class LE, Class LF, Class LG and Class LWAC Uncertificated Interests
constitute "regular interests" in REMIC I and the Class R-I Certificates
constitute the sole class of "residual interest" in REMIC I created hereunder
for purposes of the REMIC Provisions. The parties intend that the portion of the
Trust Fund representing the Expense Reserve Fund be treated as an "outside
reserve fund" beneficially owned by Capital Lease Funding, L.P. within the
meaning of the REMIC Provisions.
The following table sets forth the designation, the Pass-Through
Rate, and the Initial Class Principal Balance for each of the Classes of REMIC
II Regular Certificates.
Initial Class
Designation Pass-Through Rate Principal Balance
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Class A-1 6.3330% per annum $75,245,000
Class A-2 6.8670% per annum $193,863,000
Class A-3 7.1040% per annum $127,347,816
Class X Variable(1) N/A(2)
Class B 7.2050% per annum $25,855,814
Class C 7.3990% per annum $20,930,897
Class D 6.4500% per annum $30,780,731
Class E 5.0000% per annum $11,081,063
Class F 5.0000% per annum $3,693,687
Class G 5.0000% per annum $3,693,689
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(1) Calculated in accordance with the definition of "Class X Pass-Through Rate".
(2) The Class X Certificates will not have a Class Principal Balance; rather,
such Class of Certificates will accrue interest as provided herein on the
Class X Notional Amount that is, as of any date of determination, equal to
the Uncertificated Principal Balance of the Class LWAC Uncertificated
Interest, which corresponds to 99.99% of the aggregate Certificate Balance
of the Classes of the Sequential Pay Certificates.
The initial Uncertificated Principal Balances and per annum rates of
interest for the REMIC I Regular Interests are set forth in Section 4.01(c). The
Class R-I and Class R-II Certificates will be Residual Certificates bearing no
Pass-Through Rate and having no initial Certificate Principal Balances.
In consideration of the mutual agreements herein contained, the
Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator and the Fiscal Agent agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
AND THE CERTIFICATES
SECTION 1.01 Defined Terms
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to any Class of REMIC
II Regular Certificates, for any Distribution Date, one month's interest
(calculated on the basis of a 360-day year consisting of twelve 30-day months)
at the Pass-Through Rate applicable to such Class of Certificates for such
Distribution Date, accrued on the related Class Principal Balance or Class
Notional Amount, as the case may be, of such Class of Certificates outstanding
immediately prior to such Distribution Date. The Accrued Certificate Interest in
respect of any Class of REMIC II Regular Certificates for any Distribution Date
shall be deemed to have accrued during the applicable Interest Accrual Period.
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Regular
Certificateholders' receiving less than the full amount of principal and/or
interest to which they are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Mortgage Loan or
REO Loan, for any Distribution Date, the annualized rate at which interest would
have to accrue thereon on the basis of a 360-day year consisting of twelve
30-day months (a "30/360 basis") during the most recently ended calendar month
in order to produce the actual amount of interest accrued (or, if such Mortgage
Loan or REO Loan, as the case may be, is prepaid, in whole or in part, or
otherwise liquidated during such calendar month, that otherwise would have
accrued) in respect of such Mortgage Loan or REO Loan, as the case may be, at
the related Net Mortgage Rate in effect for such Mortgage Loan or REO Loan
during such calendar month. Such rate shall be calculated by multiplying (i) the
Net Mortgage Rate by (ii) the actual number of days of accrued interest for the
related period for such Mortgage Loan, divided by 30.
"Administrative Fee Rate": With respect to each Mortgage Loan and
REO Loan, as specified in the Mortgage Loan Schedule, the sum of the related
Master Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advanced Amount": For any date of determination with respect to any
Credit Lease Loan, the sum of all outstanding Servicing Advances with respect to
such Credit Lease Loan, together with accrued and unpaid interest thereon at the
applicable Reimbursement Rate.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer, the Special Servicer or
the Trustee, as the case may be, all in accordance with Section 3.11(f) or
Section 4.03(d), as applicable.
"Adverse REMIC Event": With respect to each of REMIC I and REMIC II,
either (i) the endangerment of the status of such REMIC as a REMIC or (ii),
except as permitted by Section 3.17(a), the imposition of a tax upon such REMIC
or any of its assets or transactions (including, without limitation, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on certain contributions set forth in Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing. The Trustee may
obtain and rely on an Officer's Certificate of the Master Servicer, the Special
Servicer or the Depositor to determine whether any Person is or is not an
Affiliate of such party.
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Anticipated Liquidation Value": For any date of determination with
respect to any Credit Lease Loan, the current value of such Mortgaged Property
as determined by the Master Servicer, assuming that the Mortgaged Property is
vacant and unencumbered by the Credit Lease Loan and the related Credit Lease.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of the states in which the Corporate Trust
Office of the Trustee and the Primary Servicing Offices of the Master Servicer
and the Special Servicer are located, (b) the laws of the states in which any
Mortgage Loan documents are held and/or any REO Properties are located, (c) such
other state and local law whose applicability shall have been brought to the
attention of the REMIC Administrator by either (i) an Opinion of Counsel
delivered to it or (ii) written notice from the appropriate taxing authority as
to the applicability of such state law, and (d) such other state or local law as
to which the REMIC Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as to which an appraisal is required to be performed pursuant to the terms of
this Agreement, a narrative appraisal complying with USPAP (or, in the case of
Mortgage Loans and REO Loans with a Stated Principal Balance as of the date of
such appraisal of $2,000,000 or less, a limited appraisal and a summary report)
that indicates the "market value" of the subject property, as defined in 12
C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser (or by the
Special Servicer, in the case of a limited appraisal and summary report with
respect to a Mortgage Loan or an REO Loan with a Stated Principal Balance as of
the date of such appraisal of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of the Determination Date immediately following
the later of (a) the date on which the most recent Appraisal that meets the
requirements of Section 3.19(b) in respect of such Required Appraisal Loan, was
obtained by the Master Servicer or the Special Servicer, as the case may be, and
(b) the earliest of the relevant dates in respect of such Required Appraisal
Loan specified in the first sentence of Section 3.19(b) hereof) equal to the
excess, if any, of (x) the sum of (i) the Stated Principal Balance of such
Required Appraisal Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer, the Trustee or the Fiscal Agent, all accrued and
unpaid interest on such Required Appraisal Loan through the most recent Due Date
prior to such Determination Date at a per annum rate equal to the sum of the
related Net Mortgage Rate and the Trustee Fee Rate, (iii) all accrued but unpaid
Master Servicing Fees and Special Servicing Fees in respect of such Required
Appraisal Loan, (iv) all related unreimbursed Advances made by or on behalf of
the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent in
respect of such Required Appraisal Loan, together with all unpaid Advance
Interest accrued on such Advances, and (v) all currently due but unpaid real
estate taxes and assessments, insurance premiums and, if applicable, ground
rents in respect of the related Mortgaged Property or REO Property (net of any
Escrow Payments or other reserves held by the Master Servicer or the Special
Servicer with respect to any such item), over (y) 90% of an amount equal to (i)
the Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by the most recent relevant Appraisal acceptable for
purposes of Section 3.19(b) hereof, net of (ii) the amount of any liens on such
property (other than in respect of items described in clause (x)(v) above) that
are prior to the lien of the Required Appraisal Loan. Notwithstanding the
foregoing, if an Appraisal is required to be obtained pursuant to Section
3.19(b) but has not been received within the 60-day period contemplated by such
section, then until the date such Appraisal is obtained the "Appraisal Reduction
Amount" for the subject Required Appraisal Loan will be deemed to equal 30% of
the Stated Principal Balance of such Required Appraisal Loan; provided that upon
receipt of an Appraisal acceptable for purposes of Section 3.19(b) hereof, the
Appraisal Reduction Amount for such Required Appraisal Loan will be recalculated
in accordance with the preceding sentence.
"Appraised Value": As of any date of determination, the appraised
value of a Mortgaged Property based upon the most recent Appraisal, which in the
case of a Credit Lease Loan shall take into account the related Credit Lease,
obtained pursuant to this Agreement.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Final Distribution Date": As defined in Section 4.01(d).
"Assumed Monthly Payment": With respect to any Balloon Mortgage Loan
for its Stated Maturity Date (provided that such Mortgage Loan has not been paid
in full, and no other Liquidation Event has occurred in respect thereof, on or
before the end of the Collection Period in which such Stated Maturity Date
occurs) and for any subsequent Due Date therefor as of which such Mortgage Loan
remains outstanding and part of the Trust Fund, if no Monthly Payment (other
than a delinquent Balloon Payment) is due for such Due Date, the scheduled
monthly payment of principal and/or interest deemed to be due in respect thereof
on such Due Date equal to the amount that would have been due in respect of such
Mortgage Loan on such Due Date if it had been required to continue to accrue
interest in accordance with its terms, and to pay principal in accordance with
the amortization schedule (if any), in effect immediately prior to, and without
regard to the occurrence of, its most recent scheduled maturity date (as such
terms and amortization schedule may have been modified, and such maturity date
may have been extended, in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or Special Servicer
pursuant to Section 3.20). With respect to any REO Loan, for any Due Date
therefor as of which the related REO Property remains part of the Trust Fund,
the scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Monthly Payment that was due (or,
in the case of a Balloon Mortgage Loan described in the preceding sentence of
this definition, the Assumed Monthly Payment that was deemed due) in respect of
the related Mortgage Loan on the last Due Date prior to its becoming an REO
Loan.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the balance on deposit in the Distribution Account
as of 11:30 a.m. (New York City time) on such Distribution Date (or such later
time on such date as of which distributions are made on the Certificates),
including, without limitation, if and to the extent on deposit therein as of
such time, the Master Servicer Remittance Amount for the related Master Servicer
Remittance Date, any P&I Advances made by the Master Servicer, the Trustee or
the Fiscal Agent to cover uncollected Monthly Payments due and/or Assumed
Monthly Payments deemed due during the related Collection Period, any Net
Default Interest and any payments made by the Master Servicer to cover
Prepayment Interest Shortfalls incurred during the related Collection Period,
net of (b) any portion of the amounts described in clause (a) of this definition
that represents one or more of the following: (i) collected Monthly Payments
that are due on a Due Date following the end of the related Collection Period,
(ii) any payments of principal (including, without limitation, Principal
Prepayments) and interest, Liquidation Proceeds and Insurance Proceeds received
after the end of the related Collection Period, (iii) Prepayment Premiums, (iv)
any amounts payable or reimbursable to any Person from the Distribution Account
pursuant to any of clauses (ii) through (vi) of Section 3.05(b), and (v) any
amounts deposited in the Distribution Account in error; provided that the
Available Distribution Amount for the Final Distribution Date shall be
calculated without regard to clauses (b)(i) and (b)(ii) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Stated Maturity Date
and as to which, in accordance with such terms, the Monthly Payment due on its
Stated Maturity Date is at least two times larger than the Monthly Payment due
on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Bank": As defined in Section 2.08.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated March 5, 1999,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Basic Rent": With respect to any Credit Lease, a portion (which may
be 100%) of the rent payable thereunder which is identified in the Mortgage Loan
documents as "basic rent" or "base rent", which is an amount sufficient to pay
all principal on the related Credit Lease Loan, plus interest thereon at the
applicable Mortgage Rate, and to fund related reserves in the amount required to
be funded under the related Mortgage Loan documents.
"Blue Cross Loan": Mortgage Loan No. 865NB, as identified on the
Mortgage Loan Schedule.
"Blue Cross Participant": The Participant (as defined in the Blue
Cross Participation Agreement).
"Blue Cross Participation Agreement": The Participation Agreement
dated as of January 15, 1997, by and between Capital Lease Funding
Securitization, L.P., as depositor and CLF, as originator, relating to the Blue
Cross Loan.
"Blue Cross Participation Interest": The participation interest and
all other rights in respect of the Blue Cross Loan, as evidenced by the Blue
Cross Participation Agreement.
"Bond-Type Lease": Any Credit Lease pursuant to which the related
Tenant generally has no right to xxxxx, offset, withhold or delay rent under
such Credit Lease or to terminate such Credit Lease.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Borrower Credit Lease Obligation": With respect to any Credit Lease
Loan, all covenants, conditions and agreements in a related Credit Lease
required to be paid, performed or observed by the related Mortgagor, as landlord
under such Credit Lease, the failure to perform or observe which would
constitute a Credit Lease Termination Condition, including, without limitation,
(a) maintenance, repair and replacement obligations with respect to the
Mortgaged Property, (b) obligations to maintain insurance, (c) payments and/or
contributions required to be made by landlord with respect to the Mortgaged
Property or pursuant to any reciprocal easement, operating or similar agreement,
(d) the enforcement of restrictions with respect to the use of any property
adjacent to or within a specified area of the Mortgaged Property, and (e) the
enforcement of the provisions of any reciprocal easement, operating or similar
agreement.
"Borrower Reserve Fund": With respect to any Credit Lease Loan, the
account or accounts maintained pursuant to a Borrower Reserve Agreement and
Section 3.03A hereof, which may include one or more replacement reserve
accounts, escrow accounts or other reserve accounts.
"Borrower Reserve Agreement": With respect to any Credit Lease Loan,
the related borrower reserve agreement, replacement reserve agreement or similar
agreement executed by the Mortgagor and setting forth the terms and amounts
required to be reserved or escrowed for the related Mortgaged Property, in each
case pledged as additional collateral under the related Mortgage.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, and the cities in which the
Primary Servicing Offices of the Master Servicer and Special Servicer and the
Corporate Trust Office of the Trustee are located, are authorized or obligated
by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Loan
Pass-Through Certificates, Series 1999-LTL-1 as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "Midland
Loan Services, Inc., as Master Servicer, in trust for the registered holders of
NationsLink Funding Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1999-LTL-1, Certificate Account".
"Certificate Factor": With respect to any Class of REMIC II Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or Class Notional Amount, as the case may be, and the
denominator of which is the related Initial Class Principal Balance or Initial
Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class X
Certificate, the hypothetical or notional principal amount on which such
Certificate accrues interest, which, as of any date of determination, is equal
to the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Class X Notional Amount.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs; provided
that solely for purposes of determining Voting Rights, the Certificate Principal
Balance of each of the Class A, Class B, Class C and Class D Certificates shall
be deemed to have been reduced by the amount of any Appraisal Reduction Amounts
notionally allocated thereto pursuant to Section 4.04(c).
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided that solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the Mortgage
Loan Sellers, the Master Servicer, the Special Servicer, the REMIC
Administrator, the Trustee, the Fiscal Agent or any Affiliate of any of them
shall be deemed not to be outstanding, and the Voting Rights to which any of
them is entitled shall not be taken into account in determining whether the
requisite percentage of Voting Rights necessary to effect any such consent,
approval or waiver has been obtained, except as otherwise provided in Sections
7.04 and 11.01 or except in connection with the Controlling Class exercising its
rights under Section 3.23, or unless such Persons collectively own an entire
Class of Certificates and only the Holders of such Class of Certificates are
entitled to grant such consent, approval or waiver. The Certificate Registrar
shall be entitled to request and rely upon a certificate of the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer or, if other
than the Trustee, the REMIC Administrator, as the case may be, in determining
whether or not a Certificate is registered in the name of an Affiliate of such
Person. All references herein to "Holders" or "Certificateholders" shall reflect
the rights of Certificate Owners as they may indirectly exercise such rights
through the Depository and the Depository Participants, except as otherwise
specified herein; provided, however, that the parties hereto shall be required
to recognize as a "Holder" or "Certificateholder" only the Person in whose name
a Certificate is registered in the Certificate Register.
"Class": Collectively, all of the Certificates or REMIC I Regular
Interests bearing the same alphabetical and, if applicable, numerical Class
designation.
"Class A Certificate": Any one of the Class A-1, Class A-2 or Class
A-3 Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class LA-1 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and REMIC I Remittance Rate set forth in Section 4.01(c).
"Class LA-2 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and REMIC I Remittance Rate set forth in Section 4.01(c).
"Class LA-3 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and REMIC I Remittance Rate set forth in Section 4.01(c).
"Class LB Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and REMIC I Remittance Rate set forth in Section 4.01(c).
"Class LC Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and REMIC I Remittance Rate set forth in Section 4.01(c).
"Class LD Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and REMIC I Remittance Rate set forth in Section 4.01(c).
"Class LE Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and REMIC I Remittance Rate set forth in Section 4.01(c).
"Class LF Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and REMIC I Remittance Rate set forth in Section 4.01(c).
"Class LG Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and REMIC I Remittance Rate set forth in Section 4.01(c).
"Class LWAC Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and REMIC I Remittance Rate set forth in Section 4.01(c).
"Class Notional Amount": The Class X Notional Amount.
"Class Principal Balance": The aggregate principal amount of any
Class of Sequential Pay Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each such
Class of Certificates shall equal the Initial Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each Class of the
Sequential Pay Certificates shall be permanently reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01(b) and, if and to the extent appropriate, shall be further
permanently reduced on such Distribution Date as provided in Section 4.04.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing the sole Class of "residual interest" in REMIC I
for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-4, and
evidencing a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
"Class X Notional Amount": The aggregate hypothetical or notional
principal amount on which the Class X Certificates collectively accrue interest,
which amount is equal to the Uncertificated Principal Balance of the Class LWAC
Uncertificated Interest, which corresponds to 99.99% of the aggregate Class
Principal Balance of the Sequential Pay Certificates.
"Class X Pass Through Rate": With respect to any Distribution Date,
a rate per annum, rounded to eight decimal places, equal to the excess, if any,
of (a) the Weighted Average Adjusted Net Mortgage Rate over (b) the weighted
average of the Pass-Through Rates on the Sequential Pay Certificates, weighted
on the basis of their respective Class Principal Balances immediately prior to
such Distribution Date. Interest at the Class X Pass-Through Rate represents a
"specified portion" (within the meaning of Treasury Regulations Section
1.860G-1(a)(2)(i)(C) of the interest payments on the Class LWAC Uncertificated
Interest.
"CLF": Capital Lease Funding, L.P., or its successor in interest.
"CLF/NationsLink Mortgage Loan Purchase and Sale Agreement": The
Mortgage Loan Purchase Agreement, dated as of March 11, 1999, between CLF and
the Depositor.
"Closing Date": March 11, 1999.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the applicable Determination Date in the
calendar month preceding the month in which such Distribution Date occurs (or,
in the case of the initial Distribution Date, commencing immediately following
the Cut-off Date) and ending on and including the applicable Determination Date
in the calendar month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Condemnation Proceeds": Any amount (other than Insurance Proceeds)
received by the Master Servicer in connection with the taking of any Mortgaged
Property by exercise of the power of eminent domain or condemnation.
"Confidential Information": As defined in Section 3.24.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest Payment
Priority (the Class A Certificates being treated as a single Class for this
purpose) that has a then outstanding Class Principal Balance at least equal to
25% of the Initial Class Principal Balance thereof (or, if no Class of
Sequential Pay Certificates has a Class Principal Balance at least equal to 25%
of the Initial Class Principal Balance thereof, then the "Controlling Class"
shall be the outstanding Class of Sequential Pay Certificates with the then
largest outstanding Class Principal Balance).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such Holder (or Certificate Owner).
"Corporate Trust Office": The principal office of the initial
Trustee located at 000 Xxxxx XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Asset Backed Securities Trust Services Group - NationsLink Funding
Corporation, Series 1999-LTL-1 and with respect to any successor Trustee, the
principal office thereof as designated in writing to the Depositor.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or a related
Mortgaged Property becoming an REO Property).
"Corresponding Certificates" and "Corresponding REMIC I Regular
Interest": For any Class of REMIC I Regular Interests, the related Class of
REMIC II Regular Certificates set forth below and for any Class of REMIC II
Regular Certificates, the related Class of REMIC I Regular Interests set forth
below:
Corresponding Corresponding REMIC I
Certificates Regular Interest
--------------------- ---------------------------------
Class A-1 Certificates Class LA-1 Uncertificated Interest
Class A-2 Certificates Class LA-2 Uncertificated Interest
Class A-3 Certificates Class LA-3 Uncertificated Interest
Class B Certificates Class LB Uncertificated Interest
Class C Certificates Class LC Uncertificated Interest
Class D Certificates Class LD Uncertificated Interest
Class E Certificates Class LE Uncertificated Interest
Class F Certificates Class LF Uncertificated Interest
Class G Certificates Class LG Uncertificated Interest
"CPR": As defined in the Base Prospectus.
"Credit Lease": With respect to each Credit Lease Loan and the
related Mortgaged Property, the lease between the Mortgagor and the lessee
thereunder with respect to such Mortgaged Property.
"Credit Lease Loan": Any of the Mortgage Loans acquired by the
Depositor pursuant to the CLF/NationsLink Mortgage Loan Purchase and Sale
Agreement. The Credit Lease Loans are identified as such on the Mortgage Loan
Schedule under the heading "Loan Seller".
"Credit Lease Termination Condition": As defined in Section 3.27(a).
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans.
"CSSA": The Commercial Real Estate Secondary Market and
Securitization Association.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.02) equal
to the aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as
the case may be, in respect of the Mortgage Loans and any REO Loans for
their respective Due Dates occurring during the related Collection Period;
(b) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
(c) with respect to any Balloon Mortgage Loan as to which the
related Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (exclusive of any Principal
Prepayment and any amount described in subclause (d) below) that was made
by or on behalf of the related Mortgagor during the related Collection
Period, net of any portion of such payment 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 such Balloon Mortgage Loan on a Due Date during
or prior to the related Collection Period and not previously recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses) and
Insurance Proceeds received on or in respect of the Mortgage Loans during
the related Collection Period that were identified and applied by the
Master Servicer as recoveries of principal thereof, in each case net of
any portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in
respect of any such Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered; and
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds and REO Revenues received on or in respect of any REO
Properties during the related Collection Period that were identified and
applied by the Master Servicer as recoveries of principal of the related
REO Loans, in each case net of any portion of such amounts that represents
a recovery of the principal portion of any Monthly Payment (other than a
Balloon Payment) due, or of the principal portion of any Assumed Monthly
Payment deemed due, in respect of any such REO Loan or the predecessor
Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, the Mortgage Loan Sellers or an Affiliate of
any of them.
"Cut-off Date": February 15, 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 all unpaid payments of principal due in respect thereof on or before such
date.
"DCR": Duff & Xxxxxx Credit Rating Co. or its successor in interest.
If neither such rating agency nor any successor remains in existence, "DCR"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer, the Special
Servicer and the REMIC Administrator, and specific ratings of Duff & Xxxxxx
Credit Rating Co. herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, and calculated without regard to any
cross-collateralization feature of such Mortgage Loan, the ratio of (x) the Net
Operating Income (before payment of any debt service on such Mortgage Loan)
generated by the related Mortgaged Property during the most recently ended
period of not more than twelve months or less than three months for which
financial statements (whether or not audited) have been received by or on behalf
of the related Mortgage Loan Seller (prior to the Closing Date) or the Master
Servicer or Special Servicer (following the Closing Date) (such Net Operating
Income to be annualized if the relevant period is less than twelve months), to
(y) the product of the amount of the Monthly Payment in effect for such Mortgage
Loan as of such date of determination, multiplied by 12.
"Default Charges": Any and all Default Interest and late payment
charges paid or payable, as the context requires, in connection with a default
under a Mortgage Loan or any successor REO Loan.
"Default Interest": With respect to any Mortgage Loan (or related
REO Loan), any amounts collected thereon, other than late payment charges and
Prepayment Premiums, that represent interest in excess of interest accrued on
the principal balance of such Mortgage Loan (or REO Loan) at the related
Mortgage Rate, such excess interest arising out of a default under such Mortgage
Loan.
"Defaulted Mortgage Loan": Any Specially Serviced Mortgage Loan as
to which a material default has occurred or a default in respect of any payment
thereon is reasonably foreseeable, and which the Special Servicer has
determined, in its reasonable and good faith judgment, will become the subject
of a foreclosure sale or similar proceedings (the basis for which determination
shall be set forth in an Officer's Certificate to be delivered to the Master
Servicer and the Trustee).
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report or reports setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the last day of the most recently ended calendar month were (i) delinquent 30-59
days, (ii) delinquent 60-89 days, (iii) delinquent 90 days or more, (iv) current
but specially serviced, (v) in foreclosure but as to which the related Mortgaged
Property had not become REO Property, or (vi) related to a Mortgaged Property
which had become REO Property.
"Delivery Date": On or about March 11, 1999.
"Denomination": As defined in Section 5.02(a).
"Depositor": NationsLink Funding Corporation, or its successor in
interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, and (i)
any Credit Lease Loan, the 15th day of the month in which such Distribution Date
occurs, or if such 15th day is not a Business Day, the Business Day immediately
following, and (ii) any NationsBank Mortgage Loan, the 10th day of the month in
which such Distribution Date occurs, or if such 10th day is not a Business Day,
the Business Day immediately following.
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority Certificateholder
of the Controlling Class, as certified by the Trustee from time to time;
provided, however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected, or (iii) upon receipt of a notice from a
majority of the Controlling Class, by Certificate Principal Balance, that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Principal Balance
of the Controlling Class will be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers in the ordinary course of a trade or business, the performance of any
construction work thereon or any use of such REO Property in a trade or business
conducted by REMIC I; provided, however, that the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) shall not be considered to
Directly Operate an REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to, or funds, repairs or capital expenditures with respect
to such REO Property (including, without limitation, construction activity to
effect repairs or in conjunction with leasing activity) that are permitted under
Treasury Regulations Section 1.856-6(e)(5).
"Disqualified Non-U.S. Person": With respect to a Class R-I or Class
R-II Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S.
Person that holds the Class R-I or Class R-II Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form 4224 or (ii)
a Non-U.S. Person that has delivered to both the transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
the transfer of the Class R-I or Class R-II Certificate to it is in accordance
with the requirements of the Code and the regulations promulgated thereunder and
that such transfer of the Class R-I or Class R-II Certificate will not be
disregarded for federal income tax purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the REMIC Administrator based upon an Opinion
of Counsel that the holding of an Ownership Interest in a Residual Certificate
by such Person may cause the Trust or any Person having an Ownership Interest in
any Class of Certificates, other than such Person, to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
REMIC II Regular Certificates, for any Distribution Date, the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, reduced (to not less than zero) by that portion, if any, of
the Net Aggregate Prepayment Interest Shortfall and Uncovered Prepayment
Interest Shortfall for such Distribution Date allocated to such Class of
Certificates as set forth below. The Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated to the
respective Classes of REMIC II Regular Certificates on such Distribution Date
pro rata among the Classes of REMIC II Regular Certificates, in each case up to
an amount equal to the lesser of any remaining unallocated portion of such Net
Aggregate Prepayment Interest Shortfall and any Accrued Certificate Interest in
respect of the particular Class of Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts created
and maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle National Bank, as Trustee,
in trust for the registered holders of NationsLink Funding Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1999-LTL-1, Distribution
Account".
"Distribution Date": The 22nd day of any month, or if such 22nd day
is not a Business Day, the Business Day immediately following, commencing in
March 1999.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.02(e).
"Double Net Lease": Any Credit Lease pursuant to which the related
Tenant generally has a right to xxxxx, offset, withhold or delay rent under such
Credit Lease or to terminate such Credit Lease arising from certain defined
casualties, condemnation or a default on the part of the Mortgagor in the
maintenance, repair, replacement or other obligations of the related Mortgaged
Property.
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Mortgage Loan had been scheduled to be first due.
"Eligible Account": Either (a) an account or accounts maintained
with a depository institution or trust company, the long term senior unsecured
debt obligations of which are rated at least "Aa3" by Moody's and "AA-" by S&P
and DCR if the deposits are to be held in such account for more than 30 days or
the short-term debt obligations of which have a short-term rating of not less
than "P-1" by Moody's and "A-1" from S&P and "D-1" from DCR if the deposits are
to be held in such account for 30 days or less, or such other account or
accounts with respect to which each of the Rating Agencies shall have confirmed
in writing that the then current rating assigned to any of the Certificates that
are currently being rated by such Rating Agency will not be qualified,
downgraded or withdrawn, as applicable, by reason thereof, or (b) a segregated
trust account or accounts maintained with a federally or state-chartered
depository institution or trust company acting in its fiduciary capacity,
having, in either case, a combined capital and surplus of at least $100,000,000
and subject to supervision or examination by federal or state authority and
subject to regulations regarding fiduciary funds on deposit substantially
similar to 12 C.F.R. ss.9.10(b), or otherwise confirmed in writing by each of
the Rating Agencies that the maintenance of such account, which may be an
account maintained with the Trustee or the Master Servicer, shall not, in and of
itself, result in a downgrading, withdrawal or qualification, as applicable, of
the rating then assigned by such Rating Agency to any Class of Certificates.
Eligible Accounts may bear interest, and amounts therein may be invested in
Permitted Investments.
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is required to
request the Master Servicer to make, that must be made within 10 days of the
Special Servicer's becoming aware that it must be made in order to avoid any
material penalty, any material harm to a Mortgaged Property or any other
material adverse consequence to the Trust Fund.
"Enhancement Insurer": Lexington Insurance Co. or another Affiliate
of American International Group, Inc. having a claims-paying ability rated "AAA"
(or its equivalent rating) or otherwise approved by each Rating Agency.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, replacement or
repair of roof, structure or parking, common area maintenance and similar items
in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption-Favored Party": Any of (i) NationsBank Corporation
(predecessor in interest to BankAmerica Corporation), (ii) any Person directly
or indirectly, through one or more intermediaries, controlling, controlled by or
under common control with BankAmerica Corporation and (iii) any member of a
syndicate or selling group of which BankAmerica Corporation or a person
described in clause (ii) is a manager or co-manager with respect to a Class of
Certificates.
"Expense Reserve Fund": The Eligible Account required to be
established by the Master Servicer pursuant to Section 3.27(b) on behalf of the
Trustee and Certificateholders and into which account the Master Servicer shall
deposit, on a monthly basis, the Servicer Reserve Amount payable under the
Mortgage Loan documents, which account may be used for payment of expenses of
the Trust Fund, the Master Servicer and the Special Servicer as set forth herein
which are expressly identified as expenses of the Trust Fund herein and for such
other purposes as set forth in this Agreement.
"Extended Amortization Policies": The Extended Amortization Policies
issued substantially in the form attached hereto as Exhibit J with respect to
certain of the Credit Lease Loans and the related Mortgaged Properties by the
Extension Insurer, naming the Trustee as the loss payee and providing, with
respect to such Mortgaged Property, and in the event of certain Credit Lease
term non-renewal events, for payment in respect of such Credit Lease Loan.
"Extension Insurer": Columbia Insurance Company or another Affiliate
of Berkshire Hathaway, Inc. having a financial strength rating of "AAA" (or its
equivalent rating) or otherwise approved by each Rating Agency.
"Xxxxxx Xxx": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any defaulted Mortgage Loan or REO Property and,
accordingly, the related REO Loan (other than a Mortgage Loan or REO Property,
as the case may be, purchased by a Mortgage Loan Seller or an Affiliate thereof
pursuant to Section 2.03, by the Majority Certificateholder of the Controlling
Class pursuant to Section 3.18(b), by the Master Servicer or the Special
Servicer pursuant to Section 3.18(c) or by the Master Servicer or the Majority
Certificateholder of the Controlling Class pursuant to Section 9.01) that there
has been a recovery of all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries (including, without limitation, by reason of a sale of
such Mortgage Loan or REO Property pursuant to Section 3.18(d) hereof) that the
Special Servicer has determined, in accordance with the Servicing Standard,
exercised without regard to any obligation of the Master Servicer or Special
Servicer to make payments from its own funds pursuant to Section 3.07(b), will
be ultimately recoverable.
"Fiscal Agent": ABN AMRO Bank N.V., in its capacity as fiscal agent
of the Trustee, or its successors in interest, or any successor fiscal agent
appointed as herein provided.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppel
agreements entered into by and between lenders and ground lessees and/or ground
lessors and/or mortgagees of the ground leasehold estate.
"Group": A group of Mortgage Loans that are cross-collateralized and
cross-defaulted with each other.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Historical Loan Modification Report": A report or reports setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of such
report or reports, have been modified pursuant to this Agreement (i) during the
Collection Period ending on such Determination Date and (ii) since the Cut-off
Date, showing the original and the revised terms thereof.
"Historical Loss Report": A report or reports setting forth, among
other things, as of the close of business on the Determination Date immediately
preceding the preparation of such report or reports, (i) the amount of
Liquidation Proceeds received, and Liquidation Expenses incurred, both during
the Collection Period ending on such Determination Date and historically, and
(ii) the amount of Realized Losses occurring during such Collection Period and
historically, set forth on a Mortgage Loan-by-Mortgage Loan and REO
Property-by-REO Property basis.
"HUD-Approved Servicer": A servicer that is a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 207 and 211
of the National Housing Act.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Fiscal Agent and any and all Affiliates thereof, (ii) does
not have any direct financial interest in or any material indirect financial
interest in any of the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the Fiscal
Agent or any Affiliate thereof, and (iii) is not connected with the Depositor,
the Mortgage Loan Sellers, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Fiscal Agent or any Affiliate thereof as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the Fiscal
Agent or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any Class of securities issued by the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent or any Affiliate thereof, as the case
may be.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by (i)
any Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall not be an expense of the Trustee,
the REMIC Administrator or the Trust, delivered to the Trustee and the REMIC
Administrator), so long as REMIC I does not receive or derive any income from
such Person and provided that the relationship between such Person and REMIC I
is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee and the
REMIC Administrator of an Opinion of Counsel, which shall be at no expense to
the Trustee, the REMIC Administrator or the Trust, to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class Notional Amount": With respect to the Class X
Certificates, the initial Class X Notional Amount thereof as of the Closing Date
equal to $492,442,448.
"Initial Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the initial Class Principal Balance thereof as of
the Closing Date, in each case as specified as such in respect of such Class of
Certificates in the Preliminary Statement hereto.
"Initial Pool Balance": The aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Mortgage Loan or REO
Property, any hazard insurance policy, flood insurance policy, title policy or
other insurance policy that is maintained from time to time in respect of such
Mortgage Loan (or the related Mortgaged Property) or in respect of such REO
Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Lease Enhancement
Policies, Extended Amortization Policies or any other Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property or REO Property or released to the Mortgagor, in either case, in
accordance with the express requirements of the related Mortgage or other
Mortgage Loan documents or in accordance with the Servicing Standard.
"Interest Accrual Period": With respect to each REMIC I Regular
Interest and each Class of REMIC II Regular Certificates, for any Distribution
Date, the period from and including the 15th day of the calendar month
immediately preceding the month in which such Distribution Date occurs, up to
and including the 14th day of the calendar month in which such Distribution Date
occurs.
"Interested Person": The Depositor, the Mortgage Loan Sellers, the
Master Servicer, any Sub-Servicer, the Special Servicer, any Manager, the
Trustee, the Fiscal Agent, any Mortgagor or Tenant of a Mortgaged Property, any
Independent Contractor engaged by the Special Servicer pursuant to Section 3.17,
any Holder of a Certificate, or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"IRS": The Internal Revenue Service or any successor agency.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, whether as payments, Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late collections of
the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of such Mortgage Loan
due or deemed due, as the case may be, for a Due Date in a previous Collection
Period, or for a Due Date coinciding with or preceding the Cut-off Date, and not
previously received or recovered. With respect to any REO Loan, all amounts
received in connection with the related REO Property during any Collection
Period, whether as Insurance Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the related Mortgage Loan or of an Assumed Monthly
Payment in respect of such REO Loan due or deemed due, as the case may be, for a
Due Date in a previous Collection Period and not previously received or
recovered. The term "Late Collections" shall specifically exclude any Default
Charges.
"Lease Enhancement Policies": The Lease Enhancement Insurance
Policies issued substantially in the form attached hereto as Exhibit I with
respect to certain of the Credit Lease Loans and the related Mortgaged
Properties by the Enhancement Insurer, naming the Mortgagor and the Trustee as
loss payees and providing, with respect to such Mortgaged Property and in the
event of certain casualty or condemnation events, for payment in respect of such
Credit Lease Loan.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by a Mortgage Loan Seller or any Affiliate thereof pursuant
to Section 2.03; or (iv) such Mortgage Loan is purchased by the Majority
Certificateholder of the Controlling Class pursuant to Section 3.18(b), by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c), or by the
Master Servicer or the Majority Certificateholder of the Controlling Class
pursuant to Section 9.01. With respect to any REO Property (and the related REO
Loan), any of the following events: (x) a Final Recovery Determination is made
with respect to such REO Property; or (y) such REO Property is purchased by the
Master Servicer or the Majority Certificateholder of the Controlling Class
pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or 3.18 (including,
without limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan or REO Property (other than any Specially Serviced Mortgage Loan or REO
Property repurchased (x) by a Mortgage Loan Seller or any Affiliate thereof
pursuant to Section 2.03 within 120 days of such Mortgage Loan Seller's notice
or discovery of the breach or Document Defect giving rise to such repurchase
obligation, (y) by the Majority Certificateholder of the Controlling Class, the
Master Servicer or the Special Servicer pursuant to Section 3.18 or (z) by the
Master Servicer or the Majority Certificateholder of the Controlling Class
pursuant to Section 9.01), the fee designated as such and payable to the Special
Servicer pursuant to the fourth paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property by exercise of the power of eminent domain or condemnation; (ii) the
liquidation of a Mortgaged Property or other collateral constituting, or that
constituted, security for a defaulted Mortgage Loan, through trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Mortgagor in accordance with applicable
law and the terms and conditions of the related Mortgage Note and Mortgage;
(iii) the realization upon any deficiency judgment obtained against a Mortgagor
or any guarantor; (iv) the purchase of a Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class pursuant to Section 3.18(b) or by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or any other
sale thereof pursuant to Section 3.18(d); (v) the repurchase of a Mortgage Loan
by a Mortgage Loan Seller or any Affiliate thereof pursuant to Section 2.03; or
(vi) the purchase of a Mortgage Loan or REO Property by the Master Servicer or
the Majority Certificateholder of the Controlling Class pursuant to Section
9.01.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Manager": Any property manager or Person fulfilling a similar
function with respect to any of the Mortgaged Properties.
"Master Servicer": Midland Loan Services, Inc., its successor in
interest or any successor master servicer appointed as herein provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Certificate Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any payments of principal (including, without
limitation, Principal Prepayments) and interest, Liquidation Proceeds and
Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums received after the end of the related Collection
Period, (iv) any amounts payable or reimbursable to any Person from the
Certificate Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(a), and (v) any amounts deposited in the Certificate Account in error;
provided that, with respect to the Master Servicer Remittance Date that occurs
in the same calendar month as the Final Distribution Date, the Master Servicer
Remittance Amount will be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(iii) of this definition.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a) and
from which any Primary Servicing Fees are payable.
"Master Servicing Fee Rate": With respect to each Mortgage Loan (and
any related REO Loan), the rate per annum that is 1.5 basis points (0.015% per
annum) less than the Administrative Fee Rate specified for such Mortgage Loan in
the Mortgage Loan Schedule.
"Midland": Midland Loan Services, Inc., or its successor in
interest.
"Modified Mortgage Loan": Any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material portion
of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount not less than the fair market value (as is), as
determined by an Appraisal delivered to the Special Servicer (at the
expense of the related Mortgagor and upon which the Special Servicer may
conclusively rely), of the property to be released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage Loan
or reduces the likelihood of timely payment of amounts due thereon.
"Monthly Lease Payment": Any payment due under any Credit Lease,
including without limitation any Monthly Rental Payments and any amounts to
reimburse the Mortgagor for, or to pay the Mortgagor for anticipated expenses of
the Mortgagor in connection with, taxes, insurance, property maintenance, common
area maintenance or other expenses of the Mortgagor reimbursable to the
Mortgagor under the terms of such Credit Lease.
"Monthly Loan Payment": With respect to any Credit Lease Loan (other
than any REO Loan) and any Due Date, the sum of (a) the Monthly Payment, (b) the
Servicer Reserve Amount, (c) any Default Interest, late payment charge or late
fee payable for the period for which interest is then due, and (d) any other
amount then payable to the lender under the Mortgage Loan documents, including
without limitation for reimbursement of expenses incurred on behalf of the
Mortgagor. With respect to any REO Loan and any Due Date, the Assumed Monthly
Payment for such Due Date.
"Monthly Payment": With respect to any Mortgage Loan, for any Due
Date as of which such Mortgage Loan is outstanding, the scheduled monthly
payment of principal and/or interest on such Mortgage Loan, including, without
limitation, a Balloon Payment, that is actually payable by the related Mortgagor
from time to time under the terms of the related Mortgage Note (as such terms
may be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or Special Servicer
pursuant to Section 3.20) and applicable law.
"Monthly Rental Payment": Any payment of rent (including without
limitation any Basic Rent, including any increases thereto, additional rent or
percentage rent) under the related Credit Lease by or on behalf of the Tenant
with respect to any Mortgaged Property.
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Master
Servicer, the Special Servicer and the REMIC Administrator, and specific ratings
of Xxxxx'x Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust and/or
other similar document or instrument securing the related Mortgage Note and
creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 2.01(c), collectively the following documents:
(i) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without
recourse, either in blank or to the order of the Trustee in the
following form: "Pay to the order of LaSalle National Bank, as
trustee for the registered holders of NationsLink Funding
Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1999-LTL-1, without recourse" together with all prior
endorsements showing a complete chain of endorsements from the
original payee to the Person endorsing the Mortgage Note to the
Trustee;
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of the
Mortgage Loan to the most recent assignee of record thereof prior
to the Trustee, if any, in each case with evidence of recording
indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to
the Trustee or, if none, by the originator, in favor of the
Trustee (in such capacity);
(iv) the original or a copy of any related Assignment of Leases (if
any such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from
the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
any such item is a document separate from the Mortgage), in
recordable form, executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the originator, in
favor of the Trustee (in such capacity), which assignment may be
included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from
the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement (if such
item is a document separate from the Mortgage) executed by the
most recent assignee of record thereof prior to the Trustee or,
if none, by the originator, in favor of the Trustee (in such
capacity), which assignment may be included as part of the
corresponding assignment of Mortgage referred to in clause (iii)
above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording
thereon if appropriate, in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any related security
document have been modified or the Mortgage Loan has been
assumed;
(ix) the original or a copy of the lender's title insurance policy
(or, if a title insurance policy has not yet been issued, a
commitment for title insurance "marked-up" at the closing of such
Mortgage Loan or other binding commitment to issue title
insurance), together with all endorsements or riders (or copies
thereof) that were issued with or subsequent to the issuance of
such policy, insuring the priority of the Mortgage as a first
lien on the Mortgaged Property;
(x) the original of any guaranty of the obligations of the Mortgagor
under the Mortgage Loan which was in the possession of the
related Mortgage Loan Seller at the time the Mortgage Files were
delivered to the Trustee;
(xi) (A) file copies of any UCC Financing Statements and continuation
statements which were filed in order to perfect (and maintain the
perfection of) any security interest held by the originator of
the Mortgage Loan (and each assignee of record prior to the
Trustee) in and to the personalty of the Mortgagor at the
Mortgaged Property (in each case with evidence of filing thereon)
and which were in the possession of the related Mortgage Loan
Seller at the time the Mortgage Files were delivered to the
Trustee and (B) if any such security interest is perfected and
the related UCC-1, UCC-2 or UCC-3 financing statements were in
the possession of the related Mortgage Loan Seller a UCC-2 or
UCC-3 financing statement, as applicable, executed by the most
recent assignee of record prior to the Trustee or, if none, by
the originator, evidencing the transfer of such security interest
to the Trustee (or a certified copy of such assignment as sent
for filing);
(xii) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if
the Mortgage, Mortgage Note or other document or instrument
referred to above was signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original Ground Lease or a copy thereof;
(xiv) the original or copy of any intercreditor agreement relating to
such Mortgage Loan;
(xv) the original or copy of any operating lease relating to the
related Mortgaged Property;
(xvi) the original or a copy of the related loan agreement;
(xvii) the original or a copy of any management agreement relating to
such Mortgage Loan;
(xviii) the original or a copy of any lock-box agreement relating to such
Mortgage Loan;
(xix) the original or a copy of any environmental report relating to
such Mortgage Loan;
(xx) with respect to each Mortgage Loan as to which the related
Mortgaged Property is operated as a franchise restaurant, the
original or a copy of any franchise agreement relating to such
Mortgage Loan;
(xxi) with respect to a Credit Lease Loan, an original counterpart of
each Credit Lease, including all modifications and amendments
thereto together with any memorandum of Credit Lease recorded;
and, if applicable, the related guaranty of the Tenant's parent
or other affiliate;
(xxii) with respect to a Credit Lease Loan, a copy of the related Lease
Enhancement Policy, if applicable;
(xxiii) with respect to a Credit Lease Loan, a copy of the related
Extended Amortization Policy, if applicable;
(xxiv) with respect to a Credit Lease Loan identified on the Mortgage
Loan Schedule as loan number 2253NB (the "Charleston Home Depot
Loan"), a copy of the related consumer price index policy, if
applicable;
(xxv) with respect to the Blue Cross Loan only, a copy of the Blue
Cross Participation Agreement and any assignment thereof, and an
assumption by the Trustee with respect thereto; and
(xxvi) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. Such term shall include any Credit Lease Loan or NationsBank Mortgage
Loan. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File. With respect to the Blue Cross Loan, such term shall mean the Blue Cross
Participation Interest.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, which list is
attached hereto as Schedule I and may be amended from time to time in accordance
with Section 2.02(e). The Mortgage Loan Schedule shall set forth, among other
things, the following information with respect to each Mortgage Loan:
(i) the loan number and control number;
(ii) the street address or addresses (including city, state and zip
code) of the related Mortgaged Property;
(iii) (a) the Mortgage Rate in effect as of the Cut-off Date and (b)
whether the Mortgage Loan accrues interest on the basis of the
actual number of days elapsed in the relevant month of accrual
and a 360-day year (an "Actual/360 Basis") or on the basis of a
360-day year consisting of twelve 30-day months (a "30/360
Basis");
(iv) the original principal balance; (v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated Maturity
Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) the Administrative Fee Rate (inclusive of the Primary Servicing
Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) whether the Mortgagor's interest in the related Mortgaged
Property is a leasehold estate;
(xiii) whether the Mortgage Loan is a Cross-Collateralized Mortgage Loan
and, if so, a reference to the other Mortgage Loans that are
cross-collateralized with such Mortgage Loan;
(xiv) the property type (e.g., multifamily); (xv) the property size
(the square feet or units);
(xvi) the original amortization term;
(xvii) whether the Mortgage Loan is a NationsBank Mortgage Loan or a
Credit Lease Loan;
(xviii) in the case of a Credit Lease Loan, whether the related Credit
Lease is a Bond-Type Lease, Double-Net Lease or Triple-Net Lease;
(xix) in the case of a Credit Lease Loan, whether such Mortgage Loan
has a Lease Enhancement Policy or Extended Amortization Policy;
and
(xx) in the case of a Credit Lease Loan, whether the rated credit is
that of the Tenant or that of the parent or affiliate providing a
guaranty.
The Mortgage Loan Schedule shall also set forth the aggregate
Cut-off Date Balance for all of the Mortgage Loans. Such list may be in the form
of more than one list, collectively setting forth all of the information
required.
"Mortgage Loan Seller": Each of NationsBank, N.A., or Capital Lease
Funding, L.P.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the annualized rate at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the terms of the related Mortgage Note (as such may be
modified at any time following the Closing Date) and applicable law, (ii) any
Mortgage Loan after its Stated Maturity Date, the annualized rate described in
clause (i) above determined without regard to the passage of such Stated
Maturity Date, and (iii) any REO Loan, the annualized rate described in clause
(i) or (ii) above, as applicable, determined as if the related Mortgage Loan had
remained outstanding.
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, as the
context may require, "Mortgaged Property" may mean, collectively, all the
Mortgaged Properties securing such Cross-Collateralized Mortgage Loan.
"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.
"NationsBank": NationsBank, N.A., or its successor in interest.
"NationsBank Mortgage Loan": Any of the Mortgage Loans, other than
the Credit Lease Loans. NationsBank Mortgage Loans are identified as such on the
Mortgage Loan Schedule under the heading "Loan Seller".
"NationsBank/NationsLink Mortgage Loan Purchase and Sale Agreement":
The Mortgage Loan Purchase and Sale Agreement, dated as of March 11, 1999,
between NationsBank and the Depositor.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of (i) all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the NationsBank Mortgage Loans and (ii) all Uncovered
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Credit Lease Loans during the related Collection
Period, exceeds (b) the aggregate amount remitted by the Master Servicer for
deposit in the Distribution Account for such Distribution Date pursuant to
Section 3.19(e) in connection with such Prepayment Interest Shortfalls.
"Net Default Charges": With respect to any Mortgage Loan or REO
Loan, any Default Charges actually collected thereon (determined in accordance
with the allocation of amounts collected as specified in Section 1.02), net of
(if, but only if, such Default Charges are allocable to the period that such
Mortgage Loan was a Specially Serviced Mortgage Loan or REO Loan) any Advance
Interest accrued on Advances made in respect of such Mortgage Loan that are
reimbursable from such Default Charges in accordance with Section 3.05(a)(viii).
"Net Default Interest": With respect to any Credit Lease Loan, any
Default Interest actually collected thereon (determined in accordance with the
allocation of amounts collected as specified in Section 1.02), net of any
Advance Interest accrued on Advances made in respect of such Credit Lease Loan
that are reimbursable from such Default Interest in accordance with Section
3.05(a)(viii).
"Net Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses and investment
costs, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for
any Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment Account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan,
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the related Administrative Fee Rate. For purposes of
calculating the Pass-Through Rate for each Class of REMIC Regular Certificates
from time to time, the Net Mortgage Rate for any Mortgage Loan will be
calculated without regard to any modification, waiver or amendment of the terms
of such Mortgage Loan subsequent to the Closing Date.
"Net Operating Income": With respect to any Mortgaged Property, the
total operating revenues derived from such Mortgaged Property, minus the total
fixed and variable operating expenses incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non-cash items
such as depreciation and amortization, (ii) capital expenditures and (iii) debt
service on loans secured by the Mortgaged Property).
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance made or proposed to be
made in respect of a Mortgage Loan or REO Loan which, as determined by the
Master Servicer or, if applicable, the Trustee or the Fiscal Agent, in its
reasonable and good faith judgment, will not be recoverable (together with
Advance Interest accrued thereon), or which in fact was not ultimately
recovered, from late collections, Insurance Proceeds, Liquidation Proceeds or
any other recovery on or in respect of such Mortgage Loan or REO Property
(without giving effect to potential recoveries on deficiency judgments or
recoveries from guarantors).
"Nonrecoverable Servicing Advance": Any Servicing Advance made or
proposed to be made in respect of a Mortgage Loan or REO Property which, as
determined by the Master Servicer, the Special Servicer or, if applicable, the
Trustee or the Fiscal Agent, in its reasonable and good faith judgment, will not
be recoverable (together with Advance Interest accrued thereon), or which in
fact was not ultimately recovered, from late collections, Insurance Proceeds,
Liquidation Proceeds or any other recovery on or in respect of such Mortgage
Loan or REO Property (without giving effect to potential recoveries on
deficiency judgments or recoveries from guarantors).
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Certificate.
"Non-U.S. Person": Any person other than a U.S. Person.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer or a Responsible Officer of the
Trustee, as the case may be.
"Operating Statement Analysis": As defined in Section 4.02(b).
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Mortgage Loan Sellers, the
Trustee, the REMIC Administrator, the Master Servicer or the Special Servicer),
which written opinion is acceptable and delivered to the addressee(s).
"Other Agreement": The Pooling and Servicing Agreement, dated as of
January 15, 1997, among Capital Lease Funding Securitization, L.P., as
depositor, Midland Loan Services, L.P., as servicer and special servicer,
LaSalle National Bank, as trustee, and ABN AMRO Bank N.V.. as fiscal agent, in
respect of the Corporate Credit-Backed Pass-Through Certificates, Series
1997-CTL-1 and all amendments thereof and supplements thereto.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate": With respect to any Class of Sequential Pay
Certificates, for any Distribution Date, the fixed rate per annum specified as
such in respect of such Class of Certificates in the Preliminary Statement
hereto. With respect to the Class X Certificates, for any Distribution Date, the
Class X Pass-Through Rate.
"Payment Priority": With respect to any Class of Certificates, the
priority of the Holders thereof in respect of the Holders of the other Classes
of Certificates to receive distributions out of the Available Distribution
Amount for any Distribution Date. The Payment Priority of the respective Classes
of Certificates shall be, in descending order, as follows: first, the respective
Classes of Senior Certificates, pro rata; second, the Class B Certificates;
third, the Class C Certificates; fourth, the Class D Certificates; fifth, the
Class E Certificates; sixth, the Class F Certificates; seventh, the Class G
Certificates; and last, the Class R-II Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such Certificate
as of the Closing Date, as specified on the face thereof, and the denominator of
which is the Initial Class Principal Balance or Initial Class Notional Amount,
as the case may be, of the relevant Class. With respect to a Residual
Certificate, the percentage interest in distributions to be made with respect to
the relevant Class, as stated on the face of such Certificate.
"Permitted Investments": Any one or more of the following
obligations:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations
are backed by the full faith and credit of the United States;
(ii) repurchase obligations with respect to any security described in
clause (i) above, provided that the long-term unsecured debt
obligations of the party agreeing to repurchase such obligations
are rated "Aaa" by Xxxxx'x and "AAA" by DCR and S&P;
(iii) unsecured certificates of deposit, time deposits and bankers'
acceptances (having original maturities of not more than 365
days) of any bank or trust company organized under the laws of
the United States or any state, provided that the short-term
unsecured debt obligations of such bank or trust company are
rated no less than "P-1" by Xxxxx'x, "D-1+" by DCR and "A-1+" by
S&P;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the
United States or any state thereof rated no less than "P-1" by
Xxxxx'x, "D-1+" by DCR and "A-1+" by S&P; and
(v) any other obligation or security which would not result in the
downgrade, qualification or withdrawal, as applicable, of the
rating then assigned by any of the Rating Agencies to any Class
of Certificates, evidence of which shall be confirmed in writing
by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, that no investment described hereunder may
be purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, that each investment described hereunder shall, by its terms,
have a predetermined fixed amount of principal due at maturity (that cannot vary
or change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
that each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions; and provided, further, that no investment may
have a rating from S&P with an "r" highlighter.
"Permitted Transferee ": Any Transferee of a Residual Certificate
other than either a Disqualified Organization or a Disqualified Non-U.S. Person
or any nominee, agent or middleman of either.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" as
described in, and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily
Guide or any successor provisions covering the same subject matter, in the case
of Specially Serviced Mortgage Loans as to which the related Mortgaged Property
is 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.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer, the Trustee or Fiscal Agent pursuant to Section 4.03, or
withdrawn from the Expense Reserve Fund pursuant to Section 3.27.
"Placement Agent": NationsBanc Xxxxxxxxxx Securities LLC, or its
successor in interest.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": The assumption that no Mortgage Loan is
prepaid prior to its Stated Maturity Date, such assumption to be used for
determining the accrual of original issue discount, market discount and premium,
if any, on the Mortgage Loans, the REMIC I Regular Interests and the
Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part made on or prior to the
related Determination Date in any calendar month but after the first day of such
month, any payment of interest (net of related Servicing Fees and exclusive of
Prepayment Premiums) actually collected from the related Mortgagor and intended
to cover the period from the commencement of such month to the date of
prepayment.
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part made after the
applicable Determination Date in any calendar month, the amount of uncollected
interest (determined without regard to any Prepayment Premium that may have been
collected) that would have accrued at a per annum rate equal to the sum of the
Net Mortgage Rate for such Mortgage Loan plus the Trustee Fee Rate, on the
amount of such Principal Prepayment during the period commencing on the date as
of which such Principal Prepayment was applied to such Mortgage Loan and ending
on the last day of such calendar month, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable,
as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Mortgage Loan or any
successor REO Loan, and in the case of the Credit Lease Loans, the "Prepayment
Consideration" as defined in the related Mortgage Note.
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Closing Date, the monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan
that is subject to a Sub-Servicing Agreement as of the Closing Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer and
the Special Servicer, the office thereof primarily responsible for performing
its respective duties under this Agreement, initially located in Missouri.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the Current Principal Distribution Amount for such
Distribution Date and, if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount for
the preceding Distribution Date, over the aggregate distributions of principal
made on the Sequential Pay Certificates on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor, or in the case of a Credit Lease Loan, deemed paid by the Mortgagor
from payments by the Enhancement Insurer or the Extension Insurer, as the case
may be, on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest (without regard to
any Prepayment Premium that may have been collected) representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
"Prospectus Supplement": That certain form of prospectus supplement
dated March 5, 1999, relating to the Class X-0, Xxxxx X-0, Class A-3, Class X
and Class B Certificates, that is a supplement to the Base Prospectus.
"Purchase Option": As defined in Section 2.05(d)(lv).
"Purchase Price": With respect to any Mortgage Loan, a price equal
to the unpaid principal balance of the Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest on the Mortgage Loan at the
related Mortgage Rate to but not including the Due Date in the Collection Period
of purchase, (b) all related unreimbursed Servicing Advances, (c) all accrued
and unpaid Advance Interest in respect of related Advances, and (d) in
connection with the repurchase of a Mortgage Loan pursuant to Section 2.03, to
the extent not included in the foregoing or otherwise required to be paid
pursuant to Section 2.03(b), any expenses of the Trust Fund allocable to such
Mortgage Loan. With respect to any REO Property, a price equal to the unpaid
principal balance of the related REO Loan as of the date of purchase, together
with (a) all accrued and unpaid interest on such REO Loan at the related
Mortgage Rate to but not including the Due Date in the Collection Period of
purchase, (b) all related unreimbursed Servicing Advances, and (c) all accrued
and unpaid Advance Interest in respect of related Advances. The Purchase Price
of any Mortgage Loan or REO Property is intended to include, without limitation,
principal and interest previously advanced with respect thereto and not
previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rating Agency": Each of DCR, Xxxxx'x and S&P.
"Rated Final Distribution Date": As to each Class of Certificates,
January 22, 2026.
"Realized Loss": With respect to each defaulted Mortgage Loan as to
which a Final Recovery Determination has been made, or with respect to any REO
Loan as to which a Final Recovery Determination has been made as to the related
REO Property, an amount (not less than zero) equal to (i) the unpaid principal
balance of such Mortgage Loan or REO Loan, as the case may be, as of the
commencement of the Collection Period in which the Final Recovery Determination
was made, plus (ii) all accrued but unpaid interest on such Mortgage Loan or REO
Loan, as the case may be (without taking into account the amounts described in
subclause (iv) of this sentence), at the related Mortgage Rate to but not
including the Due Date in the Collection Period in which the Final Recovery
Determination was made, plus (iii) any related unreimbursed Servicing Advances
and accrued and unpaid Advance Interest thereon as of the commencement of the
Collection Period in which the Final Recovery Determination was made, together
with any new related Servicing Advances made during such Collection Period,
minus (iv) all payments and proceeds, if any, received in respect of such
Mortgage Loan or REO Loan, as the case may be, during the Collection Period in
which such Final Recovery Determination was made (net of any related Liquidation
Expenses paid therefrom).
With respect to any Mortgage Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or interest (other than any Default Interest)
so forgiven.
With respect to any Mortgage Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any period in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of the consequent reduction, if any, in the interest portion of
each successive Monthly Payment due thereon. Each such Realized Loss shall be
deemed to have been incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the 15th day of the calendar month in which such Distribution
Date occurs.
"Registered Certificates": Any Certificate that has been registered
under the Securities Act.
"Reimbursement Rate": The rate per annum applicable to the accrual
of Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time; provided, however, with respect to
any Servicing Advance made by the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent or the Expense Reserve Fund with respect to a Credit
Lease Loan, the Reimbursement Rate shall be equal to the "prime rate" plus 1%.
If The Wall Street Journal ceases to publish such "prime rate", then the
Trustee, in its sole discretion, shall select an equivalent publication that
publishes such "prime rate"; and if such "prime rate" is no longer generally
published or is limited, regulated or administered by a governmental or
quasi-governmental body, then the Trustee shall select a comparable interest
rate index. In either case, such selection shall be made by the Trustee in its
sole discretion and the Trustee shall notify the Master Servicer and the Special
Servicer in writing of its selection.
"Reinvestment Yield": As defined in Section 4.01(d).
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": LaSalle National Bank, its successor in
interest, or any successor REMIC administrator appointed as herein provided.
"REMIC I": A segregated pool of assets subject hereto and to be
administered hereunder, with respect to which a REMIC election is to be made,
consisting of: (i) the Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of such Mortgage Loans received or
receivable after the Cut-off Date (other than payments of principal, interest
and other amounts due and payable on the Mortgage Loans on or before the Cut-off
Date), together with the Trustee's interest in all documents, the Rent Escrow
Account, Escrow Payments, Borrower Reserve Funds and Reserve Funds, exclusive of
the Expense Reserve Fund, delivered or caused to be delivered hereunder with
respect to such Mortgage Loans by the Mortgage Loan Sellers; (ii) any REO
Property acquired in respect of a Mortgage Loan and all payments and proceeds of
such REO Property; and (iii) such amounts on or with respect to clauses (i) or
(ii) as from time to time are deposited in the Distribution Account, the
Certificate Account and the REO Account (if established).
"REMIC I Distribution Amount": As defined in Section 4.01(a)(ii).
"REMIC I Regular Interests": Any of the Class LA-1, Class XX-0,
Xxxxx XX-0, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG and Class
LWAC Uncertificated Interests.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest, the rate specified in Section 4.01(c).
"REMIC II": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of all of the REMIC I Regular Interests
and amounts distributed thereon as from time to time are held in the REMIC II
Distribution Account.
"REMIC II Certificate": Any Certificate, other than a Class R-I
Certificate.
"REMIC II Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1999-LTL-1, REMIC II Distribution
Account" and which account shall be an Eligible Account.
"REMIC II Regular Certificate": Any REMIC II Certificate, other than
a Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rent Escrow Account": The segregated escrow account or accounts
established and maintained by the Master Servicer pursuant to Section 3.02(b),
which shall be entitled "LaSalle National Bank, as trustee and Various
Mortgagors, Rent Escrow Account" and which shall be an Eligible Account (to the
extent consistent with the related Mortgage Loan documents). The Rent Escrow
Account shall not be an asset of the Trust REMICs.
"Rent Escrow Transfer Date": With respect to any Credit Lease Loan,
the Due Date for such Credit Lease Loan or, if such day is not a Business Day,
the Business Day immediately following such day.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect
to such REO Property, if the determination of such amount depends
in whole or in part on the income or profits derived by any
Person from such property (unless such amount is a fixed
percentage or percentages of receipts or sales and otherwise
constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including
by attribution) a ten percent or greater interest in such Person
determined in accordance with Sections 856(d)(2)(B) and (d)(5) of
the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such
REO Property;
(iv) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as
such REO Property within the meaning of Treasury Regulations
Section 1.856-4(b)(1) (whether or not such charges are separately
stated); and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of
such REO Property and, for any taxable year of the Trust Fund,
such rent is no greater than 15 percent of the total rent
received or accrued under, or in connection with, the lease.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "Midland
Loan Services, Inc., as Special Servicer, in trust for registered holders of
NationsLink Funding Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1999-LTL-1, REO Account".
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property acquired in respect of any
Mortgage Loan. Each REO Loan shall be deemed to provide for monthly payments of
principal and/or interest equal to its Assumed Monthly Payment and otherwise to
have the same terms and conditions as the predecessor Mortgage Loan. Each REO
Loan shall be deemed to have an initial unpaid principal balance and Stated
Principal Balance equal to the unpaid principal balance and Stated Principal
Balance, respectively, of the predecessor Mortgage Loan as of the date of the
related REO Acquisition. In addition, all Monthly Payments (other than any
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Mortgage
Loan delinquent in respect of its Balloon Payment) and other amounts due and
owing, or deemed to be due and owing, in respect of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, shall be deemed to continue
to be due and owing in respect of an REO Loan. All amounts payable or
reimbursable to the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent and/or the Expense Reserve Account in respect of the related
Mortgage Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Servicing Fees and any unreimbursed Advances, together
with any Advance Interest accrued and payable to the Master Servicer, Special
Servicer, the Trustee, Fiscal Agent and/or the Expense Reserve Fund in respect
of such Advances, shall continue to be payable or reimbursable to the Master
Servicer, Special Servicer, the Trustee, the Fiscal Agent and/or the Expense
Reserve Fund as the case may be, in respect of an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the Certificateholders
pursuant to Section 3.09 through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Status Report": A report or reports substantially in the form
of Exhibit E attached hereto setting forth, among other things, with respect to
each REO Property that was included in the Trust Fund as of the close of
business on the Determination Date immediately preceding the preparation of such
report or reports, (i) the Acquisition Date of such REO Property, (ii) the
amount of income collected with respect to any REO Property (net of related
expenses) and other amounts, if any, received on such REO Property during the
Collection Period ending on such Determination Date and (iii) the value of the
REO Property based on the most recent Appraisal or other valuation thereof
available to the Master Servicer as of such Determination Date (including any
valuation prepared internally by the Special Servicer).
"Representing Party": As defined in Section 2.05(c) and Section
2.05(d).
"Request for Release": A request for release signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit D attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Ratings": With respect to any insurance carrier, claims
paying ability or financial strength ratings, as applicable, at least equal to
the following minimum ratings assigned to such carrier by at least two of the
following parties (one of which, except with respect to a Sub-Servicer, must be
an S&P rating) and, in any event, by each Rating Agency that assigned a rating
to the claims paying ability or financial strength ratings, as applicable, of
such insurance carrier: Xxxxx'x ("A2" or better), DCR ("A" or better), Fitch
IBCA, Inc. ("A" or better) and S&P ("A" or better); unless each of the Rating
Agencies has confirmed in writing that an insurance company with lower or fewer
claims paying ability or financial strength ratings, as applicable, shall not
result, in and of itself, in a downgrading, withdrawal or qualification of the
then current rating assigned by such Rating Agency to any Class of Certificates.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for principal and interest payments, repairs,
replacements, capital improvements (including, without limitation, tenant
improvements and leasing commissions), and/or environmental testing and
remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to the initial
Trustee, any officer assigned to the Asset Backed Securities Trust Services
Group, and when used with respect to any successor Trustee any officer assigned
to its Corporate Trust Office, any vice president, any assistant vice president,
any assistant secretary, any assistant treasurer, or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers to whom a particular matter is referred by the
Trustee because of such officer's knowledge of and familiarity with the
particular subject. When used with respect to any Certificate Registrar (other
than the Trustee), any officer or assistant officer thereof.
"Responsible Party": With respect to any Document Defect or alleged
Document Defect or any breach or alleged breach of a representation or warranty
set forth in Section 2.05(c) or Section 2.05(d), as the case may be, either: (i)
NationsBank, if such Document Defect or alleged Document Defect relates to a
NationsBank Mortgage Loan or if such breach or alleged breach is of a
representation or warranty as to which NationsBank is the Representing Party; or
(ii) CLF if such Document Defect or alleged Document Defect relates to a Credit
Lease Loan or if such breach or alleged breach is of a representation or
warranty as to which CLF is the Representing Party.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the Trustee, the Master Servicer, the Special Servicer and the REMIC
Administrator, and specific ratings of Standard & Poor's Ratings Services, a
division of the XxXxxx-Xxxx Companies, Inc. herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement, chattel mortgage or similar document or instrument, whether
contained in the related Mortgage or executed separately, creating in favor of
the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3 or Class X
Certificate.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A-1, Class A-2 and Class A-3 Certificates outstanding immediately prior to such
Distribution Date exceeds the sum of (a) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date, plus (b) the lesser of (i) the Principal Distribution Amount
for such Distribution Date and (ii) the portion of the Available Distribution
Amount for such Distribution Date that will remain after the distributions of
interest to be made on the Senior Certificates on such Distribution Date have
been so made.
"Sequential Pay Certificate": Any Class A, Class B, Class C, Class
D, Class E, Class F or Class G Certificate.
"Servicer Reports": As defined in Section 4.02.
"Servicer Reserve Amount": With respect to each Credit Lease Loan,
an amount equal to 0.3% of each related Monthly Rental Payment.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred or to be incurred, as the context
requires, by the Master Servicer or the Special Servicer (or, if applicable, the
Trustee or the Fiscal Agent) or, in the case of the Credit Lease Loans, the
Expense Reserve Fund, in connection with the servicing of a Mortgage Loan after
a default, delinquency or other unanticipated event, or in connection with the
administration of any REO Property, including, but not limited to, the cost of
(a) compliance with the obligations of the Master Servicer and/or the Special
Servicer set forth in Sections 3.03(c) and 3.09, (b) the preservation,
insurance, restoration, protection and management of a Mortgaged Property, (c)
obtaining any Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan or REO Property, (d) any enforcement or judicial proceedings with
respect to a Mortgaged Property, including, without limitation, foreclosures,
(e) the operation, management, maintenance and liquidation of any REO Property
and (f) Borrower Credit Lease Obligations; provided that notwithstanding
anything herein to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer or the Special Servicer, such as costs
for office space, office equipment, supplies and related expenses, employee
salaries and related expenses and similar internal costs and expenses, or costs
incurred by either such party in connection with its purchase of any Mortgage
Loan or REO Property pursuant to any provision of this Agreement. All Emergency
Advances made by the Special Servicer hereunder shall be considered "Servicing
Advances" for the purposes hereof.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan,
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File), including, without limitation, the related
environmental site assessment report(s) referred to in Section 2.05(c)(xiv) and
Section 2.05(d)(xxxv), in the possession of the Master Servicer or the Special
Servicer and relating to the origination and servicing of any Mortgage Loan.
"Servicing Officer": Any officer or authorized signatory of the
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of such officers and authorized signatories furnished
by such party to the Trustee and the Depositor on the Closing Date, as such list
may be amended from time to time thereafter.
"Servicing Return Date": With respect to any Corrected Mortgage
Loan, the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer, to service and administer the Mortgage Loans and any
REO Properties for which such Person is responsible hereunder: (a) in accordance
with the higher standard of (i) the same manner in which, and with the same
care, skill, prudence and diligence with which, the Master Servicer or Special
Servicer, as the case may be, generally services and administers comparable
mortgage loans or assets, as applicable, for other third parties, giving due
consideration to customary and usual standards of practice of prudent
institutional commercial mortgage lenders servicing their own loans and (ii) the
same manner in which, and with the same care, skill, prudence and diligence with
which, the Master Servicer or the Special Servicer, as the case may be,
generally services and administers comparable mortgage loans or assets, as
applicable, owned by it; (b) with a view to the timely collection of all Monthly
Payments of principal and interest under the Mortgage Loans or, if a Mortgage
Loan comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery on such Mortgage Loan to the Certificateholders (as a collective whole)
on a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders to be performed at the related
Net Mortgage Rate); and (c) without regard to: (i) any relationship that the
Master Servicer or the Special Servicer, as the case may be, or any Affiliate
thereof may have with any related Mortgagor; (ii) the ownership of any
Certificate by the Master Servicer or the Special Servicer, as the case may be,
or by any Affiliate thereof; (iii) the Master Servicer's obligation to make
Advances; (iv) the Special Servicer's obligation to make (or to direct the
Master Servicer to make) Servicing Advances; (v) the right of the Master
Servicer (or any Affiliate thereof) or the Special Servicer (or any Affiliate
thereof), as the case may be, to receive compensation for its services or
reimbursement of costs hereunder or with respect to any particular transaction;
(vi) any credit that it has extended to any Mortgagor (e.g. partnership debt)
and (vii) the servicing of any other mortgage loans by the Master Servicer or
the Special Servicer.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (i) of the
definition of "Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(e).
"Single Certificate": For purposes of Section 4.02(a), a Certificate
of any Class of REMIC II Regular Certificates evidencing a $1,000 denomination
or, in the case of a Class X Certificate, a 100% Percentage Interest.
"Special Servicer": Midland Loan Services, Inc., its successor in
interest, or any successor special servicer appointed as herein provided.
"Special Servicer Loan Status Report": A report or reports setting
forth, among other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report or reports, (i) the
aggregate unpaid principal balance of all Specially Serviced Mortgage Loans and
(ii) a loan-by-loan listing of all Specially Serviced Mortgage Loans indicating
their status, date and reason for transfer to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.30% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any Balloon
Payment, which failure has continued, or the Master Servicer determines, in
its good faith and reasonable judgment, will continue, unremedied for 30
days; or
(b) the related Mortgagor has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment required under
the related Mortgage Note or the related Mortgage, which failure has
continued, or the Master Servicer determines, in its good faith and
reasonable judgment, will continue, unremedied for 60 days; or
(c) the Master Servicer has determined, in its good faith and
reasonable judgment, that a default in the making of a Monthly Payment
(including, without limitation, a Balloon Payment) or any other payment
required under the related Mortgage Note or the related Mortgage is likely
to occur within 30 days and is likely to remain unremedied for at least 60
days or, in the case of a Balloon Payment, for at least 30 days; or
(d) there shall have occurred a default under the related loan
documents, other than as described in clause (a) or (b) above, that may, in
the Master Servicer's good faith and reasonable judgment, materially impair
the value of the related Mortgaged Property as security for the Mortgage
Loan or otherwise materially and adversely affect the interests of
Certificateholders, which default has continued unremedied for the
applicable cure period under the terms of the Mortgage Loan (or, if no cure
period is specified, 60 days); or
(e) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Mortgagor and such decree or
order shall have remained in force undischarged or unstayed for a period of
60 days; or
(f) the related Mortgagor shall have consented to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all of
its property; or
(g) the related Mortgagor shall have admitted in writing its inability
to pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended
payment of its obligations; or
(h) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related Mortgaged
Property; or
(i) with respect to a Credit Lease Loan, the Master Servicer has
received notice that the related Mortgagor has failed to correct a Credit
Lease Termination Condition in a timely manner (as determined by the Master
Servicer in accordance with the Servicing Standard), provided that the
Master Servicer has not corrected such Credit Lease Termination Condition
through the providing of notices and claims relating to the Lease
Enhancement Policies, the Extended Amortization Policies or forced place
insurance policies of the Master Servicer or by the Master Servicer making
any related Servicing Advance;
provided that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, when the related Mortgaged Property has become an REO Property, or at such
time as such of the following as are applicable occur with respect to the
circumstances identified above that caused the Mortgage Loan to be characterized
as a Specially Serviced Mortgage Loan (and provided that no other Servicing
Transfer Event then exists):
(a) with respect to the circumstances described in clauses (a) and (b)
above, the related Mortgagor has made three consecutive full and timely
Monthly Payments under the terms of such Mortgage Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the Special Servicer pursuant
to Section 3.20);
(b) with respect to the circumstances described in clauses (c), (e),
(f) and (g) above, such circumstances cease to exist in the good faith and
reasonable judgment of the Special Servicer;
(c) with respect to the circumstances described in clause (d) above,
such default is cured;
(d) with respect to the circumstances described in clause (h) above,
such proceedings are terminated; and
(e) with respect to the circumstances described in clause (i) above,
the Credit Lease Termination Condition has been cured notwithstanding the
fact that Servicing Advances relating thereto may still be outstanding.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date on which the last payment of principal is due and payable under the terms
of the related Mortgage Note as in effect on the Closing Date, without regard to
any change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 3.20.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), a principal amount initially equal to the Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each Distribution
Date (to not less than zero) by (i) all payments (or P&I Advances in lieu
thereof) of, and all other collections allocated as provided in Section 1.02 to,
principal of or with respect to such Mortgage Loan (or successor REO Loan) that
are (or, if they had not been applied to cover any Additional Trust Fund
Expense, would have been) distributed to Certificateholders on such Distribution
Date, and (ii) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan (or successor REO Loan) during the related Collection Period.
For the avoidance of doubt, the Stated Principal Balance of the Blue Cross Loan
for purposes of this Agreement is 50% of what the Stated Principal Balance of
the "Mortgage Loan" (as defined in the Blue Cross Participation Agreement) would
be if such Mortgage Loan were a Mortgage Loan hereunder in its entirety.
Notwithstanding the foregoing, if a Liquidation Event occurs in respect of any
Mortgage Loan or REO Property, then the "Stated Principal Balance" of such
Mortgage Loan or of the related REO Loan, as the case may be, shall be zero
commencing as of the Distribution Date in the Collection Period next following
the Collection Period in which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G or Residual Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicer Termination Compensation": As defined in Section
3.22(d).
"Sub-Servicer Termination Fee": As defined in Section 3.22(d).
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Successor Servicer Retained Fee": As defined in Section 3.11(a).
"Tax Matters Person": With respect to each of REMIC I and REMIC II,
the Person designated as the "tax matters person" of such REMIC in the manner
provided under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations
Section 301.6231(a)(7)-1. The "Tax Matters Person" for each of REMIC I and REMIC
II is the Holder of Certificates evidencing the largest Percentage Interest
in the related Class of Residual Certificates.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I and REMIC II due to its classification
as a REMIC under the REMIC Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
Applicable State Law.
"Tenant": The lessee with respect to any Credit Lease.
"Termination Strip": As defined in Section 3.22(d).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferable Portion": As defined in Section 3.11(a).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Triple Net Lease": Any Credit Lease pursuant to which the related
Tenant generally has no right to xxxxx, offset, withhold or delay rent under
such Credit Lease or to terminate such Credit Lease arising from a default on
the part of the Mortgagor in the maintenance, repair, or replacement of the
related Mortgaged Property, but may have a right to xxxxx, offset, withhold or
delay rent under such Credit Lease or to terminate such Credit Lease arising
from certain defined casualties, condemnation or a related default on the part
of the Mortgagor's obligations.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of REMIC I and REMIC
II.
"Trust REMICs": REMIC I and REMIC II.
"Trustee": LaSalle National Bank, in its capacity as Trustee
hereunder, its successor in interest, or any successor trustee appointed as
herein provided.
"Trustee Fee": The fee payable to the Trustee on each Distribution
Date for its services as Trustee hereunder, at the Trustee Fee Rate in respect
of each Mortgage Loan and REO Loan, calculated on the basis of the same
principal amount and for the same number of days respecting which any related
interest payment due on such Mortgage Loan or deemed to be due on such REO Loan
is computed under the terms of the related Mortgage Note (as such terms may be
changed or modified at any time following the Closing Date). For the avoidance
of doubt, the outstanding principal balance of the Blue Cross Loan for purposes
of this definition is 50% of the amount that the outstanding principal balance
of the Loan (as defined in the Blue Cross Participation Agreement) would be if
such Credit Lease Loan were a Mortgage Loan hereunder in its entirety.
"Trustee Fee Rate": A rate of .015% per annum.
"Trustee's Website": The website maintained by the Trustee and
located at "xxx.xxxxxx.xxx".
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC financing statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
I Regular Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of any REMIC I Regular Interest for
any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) the Net Aggregate Prepayment
Interest Shortfall, if any, for such Distribution Date, multiplied by (ii) a
fraction, the numerator of which is the Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest for such Distribution Date, and the
denominator of which is the aggregate Uncertificated Accrued Interest in respect
of all the REMIC I Regular Interests for such Distribution Date.
"Uncertificated Principal Balance": With respect to any Class of
REMIC I Regular Interests (other than the Class LWAC Uncertificated Interest),
(i) on or prior to the first Distribution Date, an amount equal to the initial
principal amount of such Class as specified in Section 4.01(c), and (ii) as of
any date of determination after the first Distribution Date, an amount equal to
the percentage of the Certificate Principal Balance of the Class of
Corresponding Certificates (as specified in Section 4.01(c)) on the Distribution
Date immediately prior to such date of determination. With respect to the Class
LWAC Uncertificated Interest and any Distribution Date, an amount equal to
99.99% of the aggregate Certificate Principal Balance of the Sequential Pay
Certificates as of the preceding Distribution Date (after giving effect the
distribution of principal on such Distribution Date), or the Cut-off Date in the
case of the first Distribution Date. Uncertificated Principal Balances shall be
expressed to five decimal places.
"Uncovered Prepayment Interest Shortfall": With respect to any
Distribution Date, the aggregate Prepayment Interest Shortfall for all Credit
Lease Loans with respect to the preceding Interest Accrual Period, less any
amounts paid from the Expense Reserve Fund in respect thereof pursuant to
Section 3.27.
"Underwriter": NationsBanc Xxxxxxxxxx Securities LLC, or its
successor in interest.
"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, or 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 the trust and one or more such U.S. Persons have the
authority to control all substantial decisions of the trust (or, to the extent
provided in applicable Treasury regulations, certain trusts in existence on
August 20, 1996 which are eligible to elect to be treated as U.S. Persons).
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 95.0% of the Voting Rights shall be allocated among the
Holders of the various outstanding Classes of Sequential Pay Certificates in
proportion to the respective Class Principal Balances of their Certificates, and
5.0% of the Voting Rights shall be allocated to the Holders of the Class X
Certificates. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the respective Adjusted Net Mortgage
Rates for all the Mortgage Loans and REO Loans, weighted on the basis of the
respective Stated Principal Balances of such Mortgage Loans and REO Loans
outstanding immediately prior to such Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as
to which a Workout Fee is payable, 1.0%.
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any Group of
Cross-Collateralized Mortgage Loans in the form of payments from Mortgagors,
Insurance Proceeds and Liquidation Proceeds, shall be applied by the Master
Servicer among such Mortgage Loans in accordance with the express provisions of
the related loan documents and, in the absence of such express provisions, on a
pro rata basis in accordance with the respective amounts then "due and owing" as
to each of the Mortgage Loans constituting such Group. All amounts collected in
respect of or allocable to any particular individual Mortgage Loan (whether or
not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of
payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be
applied for purposes of this Agreement (including, without limitation, for
purposes of determining distributions on the Certificates pursuant to Article IV
and additional compensation payable to the Master Servicer, the Special Servicer
and any Sub-Servicers) as follows: first, as a recovery of any related
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest at the related Mortgage
Rate on such Mortgage Loan to but not including, as appropriate, the date of
receipt or, in the case of a full Monthly Payment from any Mortgagor, the
related Due Date; third, as a recovery of principal of such Mortgage Loan then
due and owing, including, without limitation, by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, as a recovery of Reserve Funds to the
extent then required to be held in escrow; sixth, as a recovery of any
Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a
recovery of any Default Charges then due and owing under such Mortgage Loan;
eighth, as a recovery of any assumption fees and modification fees then due and
owing under such Mortgage Loan; ninth, as a recovery of any other amounts then
due and owing under such Mortgage Loan other than remaining unpaid principal;
and tenth, as an early recovery of any remaining principal of such Mortgage Loan
to the extent of its entire remaining unpaid principal balance. The Master
Servicer shall, to the fullest extent permitted by applicable law and the
related Mortgage Loan documents, apply all payments on and proceeds of each
Mortgage Loan to amounts actually due and owing from the related Mortgagor in a
manner consistent with the foregoing and shall maintain accurate records of how
all such payments and proceeds are actually applied and are applied for purposes
of this Agreement.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be applied for purposes of
this Agreement (including, without limitation for purposes of determining
distributions on the Certificates pursuant to Article IV and additional
compensation payable to the Master Servicer, the Special Servicer and any
Sub-Servicers) as follows: first, as a recovery of any related unreimbursed
Servicing Advances; second, as a recovery of accrued and unpaid interest on the
related REO Loan at the related Mortgage Rate to but not including the Due Date
in the Collection Period of receipt; third, as a recovery of principal of the
related REO Loan to the extent of its entire unpaid principal balance; fourth,
as a recovery of any Prepayment Premium then due and owing under such REO Loan;
and fifth, as a recovery of any other amounts (including, without limitation,
Default Charges) deemed to be due and owing in respect of the related REO Loan.
(c) Insofar as amounts received in respect of any Mortgage Loan or
REO Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Loan, as the case may be, that constitute additional
servicing compensation payable to the Master Servicer and/or Special Servicer
pursuant to Section 3.11, are insufficient to cover the full amount of such fees
and charges, such amounts shall be allocated between such of those fees and
charges as are payable to the Master Servicer, on the one hand, and such of
those fees and charges as are payable to the Special Servicer, on the other, pro
rata in accordance with their respective entitlements, and such payments so made
shall constitute the sole amount that will be paid to the Master Servicer and
the Special Servicer with respect thereto.
(d) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the reports to be delivered thereby pursuant to Section 4.02(b).
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement. LaSalle National Bank, is
hereby appointed, and does hereby agree to act, as Trustee hereunder and, in
such capacity, to hold the Trust Fund in trust for the exclusive use and benefit
of all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) Each of the Depositor and, at the direction of the Depositor
given pursuant to each of the NationsBank/NationsLink Mortgage Loan Purchase and
Sale Agreement and the CLF/NationsLink Mortgage Loan Purchase and Sale
Agreement, the Mortgage Loan Sellers, concurrently with its execution and
delivery hereof, does hereby assign, transfer, sell and otherwise convey to the
Trustee without recourse for the benefit of the Certificateholders all the
right, title and interest of the Depositor and the Mortgage Loan Sellers,
respectively, in, to and under the Mortgage Loans identified on the Mortgage
Loan Schedule and all other assets included or to be included in REMIC I. Such
assignment includes (i) the Mortgage Loans as from time to time are subject to
this Agreement and all payments under and proceeds of such Mortgage Loans
received or receivable after the Cut-off Date (other than payments of principal,
interest and other amounts due and payable on the Mortgage Loans on or before
the Cut-off Date), together with all documents delivered or caused to be
delivered hereunder with respect to such Mortgage Loans by the Mortgage Loan
Sellers; (ii) any REO Property acquired in respect of a Mortgage Loan; (iii)
such funds or assets as from time to time are deposited in the Certificate
Account, the Distribution Account, the REMIC II Distribution Account and the REO
Account (if established); and (iv) the right of the Master Servicer or the
Trustee, as applicable, to draw upon funds on deposit in the Rent Escrow
Account, the Borrower Reserve Funds, Reserve Funds, Servicing Accounts and the
Expense Reserve Fund. In the case of the Blue Cross Loan, such transfer and
assignment is subject to the Blue Cross Participation Agreement with respect to
a 50% interest in the related Mortgage Note and all payments thereunder (which
50% interest is not part of the Trust Fund). The Depositor shall cause the
Borrower Reserve Fund to be transferred to the Master Servicer on behalf of the
Trustee as the successor to the mortgagee.
It is intended that the conveyance of the Mortgage Loans and the
related rights and property by the Depositor and the Mortgage Loan Sellers to
the Trustee, as provided in this Section be, and be construed as, an absolute
transfer of the Mortgage Loans by the Depositor and the Mortgage Loan Sellers to
the Trustee for the benefit of the Certificateholders. It is, further, not
intended that such conveyance be deemed a pledge of the Mortgage Loans by the
Depositor or the Mortgage Loan Sellers to the Trustee to secure a debt or other
obligation of the Depositor or the Mortgage Loan Sellers, as the case may be.
However, in the event that the Mortgage Loans are held to be property of the
Depositor or the respective Mortgage Loan Seller, or if for any reason this
Agreement is held or deemed to create a security interest in the Mortgage Loans,
then it is intended that, (i) this Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (ii) the conveyance provided for in this Section shall be deemed
to be a grant by the Depositor and the respective Mortgage Loan Seller to the
Trustee, for the benefit of the Certificateholders, of a security interest in
all of their respective right (including the power to convey title thereto),
title and interest, whether now owned or hereafter acquired, in and to (A) the
Mortgage Notes, the Mortgages, any related insurance policies and all other
documents in the related Mortgage Files, (B) all amounts payable to the holders
of the Mortgage Loans in accordance with the terms thereof, (C) all proceeds of
the conversion, voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property, including without limitation all
amounts from time to time held or invested in the Certificate Account, the
Distribution Account, the REMIC II Distribution Account or the REO Account,
whether in the form of cash, instruments, securities or other property and (D)
the right to draw upon funds on deposit in the Rent Escrow Account, the Borrower
Reserve Funds, Reserve Funds, Servicing Accounts and the Expense Reserve Fund;
(iii) the possession by the Trustee or its agent of the Mortgage Notes and such
other items of property as constitute instruments, money, negotiable documents
or chattel paper shall be deemed to be "possession by the secured party" or
possession by a purchaser or a Person designated by such secured party, for
purposes of perfecting the security interest pursuant to the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction (including, without limitation, Section 9-305 or 9-115 thereof);
and (iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor, the Mortgage Loan
Sellers and the Trustee shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement. At the Depositor's direction, the Master Servicer will prepare, the
Trustee shall execute, and the Master Servicer shall (at its expense) file, all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect and maintain the Trustee's security interest in or lien on the Trust
Fund, including without limitation (A) continuation statements and (B) such
other statements as may be occasioned by any transfer of any interest of the
Trustee, the Master Servicer, the Special Servicer or the Depositor in the Trust
Fund. In connection herewith, the Trustee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
(c) In connection with the Mortgage Loan Seller's assignment
pursuant to subsection (b) above, the Mortgage Loan Sellers shall deliver to and
deposit with, or cause to be delivered to and deposited with, the Trustee or a
Custodian appointed thereby (with a copy to the Master Servicer), on or before
the Closing Date, the Mortgage File for each Mortgage Loan so assigned by the
Mortgage Loan Sellers hereunder. If a Mortgage Loan Seller is unable to deliver
or cause the delivery of any original Mortgage Note, such party may deliver a
copy of such Mortgage Note, together with a lost note affidavit, and shall
thereby be deemed to have satisfied the document delivery requirements of this
Section 2.01(c). If a Mortgage Loan Seller cannot so deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of any of the
documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi)(A)
and (xii) of the definition of "Mortgage File", with evidence of recording or
filing (as the case may be) thereon, solely because of a delay caused by the
public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, the delivery
requirements of this Section 2.01(c) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple loans, documents and/or instruments)
by such Mortgage Loan Seller to be a true and complete copy of the original
thereof submitted for recording or filing, as the case may be) is delivered to
the Trustee or a Custodian appointed thereby on or before the Closing Date, and
either the original of such missing document or instrument, or a copy thereof,
with evidence of recording or filing, as the case may be, thereon, is delivered
to the Trustee or such Custodian within 180 days of the Closing Date (or within
such longer period after the Closing Date as the Trustee may consent to, which
consent shall not be unreasonably withheld so long as such Mortgage Loan Seller
has provided the Trustee with evidence of such submission for recording or
filing, as the case may be, or has certified to the Trustee as to the occurrence
of such submission for recording or filing, as the case may be, and is, as
certified to the Trustee no less often than monthly, in good faith attempting to
obtain from the appropriate recording or filing office such original or copy).
If a Mortgage Loan Seller cannot or does not so deliver, or cause to be
delivered, as to any Mortgage Loan, the original of any of the documents and/or
instruments referred to in clauses (iii), (v), and (xi)(B) of the definition of
"Mortgage File", because such document or instrument has been delivered for
recording or filing, as the case may be, the delivery requirements of this
Section 2.01(c) shall be deemed to have been satisfied as to such missing item,
and such missing item shall be deemed to have been included in the related
Mortgage File, provided that a copy of such document or instrument (without
evidence of recording or filing thereon, but certified (which certificate may
relate to multiple documents and/or instruments) by such Mortgage Loan Seller to
be a true and complete copy of the original thereof submitted for recording or
filing, as the case may be) is delivered to the Trustee or a Custodian appointed
thereby on or before the Closing Date, and either the original of such missing
document or instrument, or a copy thereof, with evidence of recording or filing,
as the case may be, thereon, is delivered to the Trustee or such Custodian
within 180 days of the Closing Date (or within such longer period after the
Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as such Mortgage Loan Seller has provided the
Trustee with evidence of such submission for recording or filing, as the case
may be, or has certified to the Trustee as to the occurrence of such submission
for recording or filing, as the case may be, and is, as certified to the Trustee
no less often than monthly, in good faith attempting to obtain from the
appropriate recording or filing office such original or copy). If a Mortgage
Loan Seller cannot so deliver, or cause to be delivered, as to any Mortgage
Loan, the original or a copy of the related lender's title insurance policy
referred to in clause (ix) of the definition of "Mortgage File" solely because
such policy has not yet been issued, the delivery requirements of this
Section 2.01(c) shall be deemed to be satisfied as to such missing item, and
such missing item shall be deemed to have been included in the related Mortgage
File, provided that such Mortgage Loan Seller shall have delivered to the
Trustee or a Custodian appointed thereby, on or before the Closing Date, a
commitment for title insurance "marked-up" at the closing of such Mortgage Loan,
and such Mortgage Loan Seller shall deliver to the Trustee or such Custodian,
promptly following the receipt thereof, the original related lender's title
insurance policy (or a copy thereof). In addition, notwithstanding anything to
the contrary contained herein, if there exists with respect to any Group of
related Cross-Collateralized Mortgage Loans only one original of any document
referred to in the definition of "Mortgage File" covering all the Mortgage Loans
in such Group, then the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
None of the Trustee, any Custodian, the Depositor, the Master Servicer or the
Special Servicer shall in any way be liable for any failure by either Mortgage
Loan Seller to comply with the delivery requirements of this Section 2.01(c).
If any of the endorsements referred to in clause (i) of the
definition of "Mortgage File", any of the assignments of Mortgage referred to in
clause (iii) of the definition of "Mortgage File", any of the assignments of
Assignment of Leases referred to in clause (v) of the definition of "Mortgage
File", or any of the assignments of Security Agreement referred to in
clause (vii) of the definition of "Mortgage File" are delivered to the Trustee
in blank, the Trustee, except as provided in Section 2.01(d) below whereby the
Trustee shall return unrecorded and unfiled documents to the person identified
in such Section, shall (without being obligated to record or file such) be
responsible for completing the related endorsement or assignment in the name of
the Trustee (in such capacity).
(d) NationsBank shall, as to each NationsBank Mortgage Loan, and CLF
shall, as to each Credit Lease Loan, in each such case at its own expense,
promptly (and in any event within 45 days of the Closing Date, unless
recording/filing information is not available by such time for assignments
solely due to recorder's office delay, in which case such submission shall be
made promptly after such information does become available from the recorder's
office) submit or cause to be submitted for recording or filing, as the case may
be, in the appropriate public office for real property records or UCC Financing
Statements, as appropriate, each assignment referred to in clauses (iii) and (v)
of the definition of "Mortgage File" and each UCC-1, UCC-2 and UCC-3, if any,
referred to in clause (xi)(B) of the definition of "Mortgage File". Each such
assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC-1, UCC-2 and UCC-3
shall reflect that the file copy thereof should be returned to the party
responsible for filing and forwarding the document to the Trustee following
filing. At such time as such assignments, UCC-1s, UCC-2s and UCC-3s have been
returned to the Trustee, the Trustee shall promptly forward a copy of each
thereof to the Master Servicer. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
NationsBank, in the case of a NationsBank Mortgage Loan, and CLF, in the case of
a Credit Lease Loan, shall promptly prepare or cause the preparation of a
substitute therefor or cure or cause the curing of such defect, as the case may
be, and thereafter NationsBank, in the case of a NationsBank Mortgage Loan, and
CLF, in the case of a Credit Lease Loan, shall, in each such case at its own
expense, submit the substitute or corrected documents or cause such to be
submitted for recording or filing, as appropriate.
(e) All documents and records in either Mortgage Loan Seller's
possession (or, in either case, under its control) relating to the Mortgage
Loans (except attorney-client privileged communications or confidential internal
credit analysis of the client) that are not required to be a part of a Mortgage
File in accordance with the definition thereof, together with all Escrow
Payments and Reserve Funds in the possession of either Mortgage Loan Seller (or
under its control) with respect to the Mortgage Loans, shall be delivered or
caused to be delivered by the appropriate Mortgage Loan Seller to the Master
Servicer, within 10 days of the Closing Date, and shall be retained by the
Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(f) NationsBank shall, as to each NationsBank Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, and CLF
shall, as to each Credit Lease Loan which is secured by the interest of the
related Mortgagor under a Ground Lease, in each case at its own expense,
promptly (and in any event within 45 days of the Closing Date) notify the
related ground lessor of the transfer of such Mortgage Loan to the Trust
pursuant to this Agreement and inform such ground lessor that any notices of
default under the related Ground Lease should thereafter be forwarded to the
Trustee.
SECTION 2.02 Acceptance of REMIC I by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to any
exceptions noted on the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Schedule VI, to the provisions of Section 2.01 and to the
further review provided for in this Section 2.02, of, with respect to each
Mortgage Loan, an original Mortgage Note endorsed to the Trustee, an original or
a copy of the Mortgage (with evidence of recording thereon), and an original
assignment of such Mortgage executed in favor of the Trustee (in such capacity)
and of all other assets included in REMIC I, in good faith and without notice of
any adverse claim, and declares that it or a Custodian on its behalf holds and
will hold the documents delivered or caused to be delivered by the Mortgage Loan
Sellers in respect of the Mortgage Loans, and that it holds and will hold such
other assets included in REMIC I, in trust for the exclusive use and benefit of
all present and future Certificateholders.
(b) Within 60 days of the Closing Date (or, in the case of any
Mortgage Loan as to which a Servicing Transfer Event has occurred during such
60-day period of which event the Trustee has notice, within the shorter of 60
days of the Closing Date and five Business Days of the Trustee's receiving such
notice), the Trustee or a Custodian on its behalf shall review each of the
documents delivered or caused to be delivered by the Mortgage Loan Sellers with
respect to each Mortgage Loan pursuant to Section 2.01(c); and, promptly
following such review, the Trustee shall, subject to Section 2.02(d), certify in
writing to each of the Depositor, the Master Servicer, the Special Servicer, and
the Mortgage Loan Sellers that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full), and except as
specifically identified in any exception report annexed to such certification,
(i) all documents specified in clauses (i) through (iii), (ix) and, if the
Mortgage Loan Schedule specifies that the related Mortgagor has a leasehold
interest in the related Mortgaged Property, (xiii) and, if the Mortgage Loan is
a Credit Lease Loan, (xxi) through (xxiv) of the definition of "Mortgage File"
are in its possession or the possession of a Custodian on its behalf, or each
Mortgage Loan Seller has otherwise satisfied the delivery requirements in
respect of such documents in accordance with Section 2.01(c), (ii) all documents
received by it or any Custodian in respect of such Mortgage Loan have been
reviewed by it or by a Custodian on its behalf and appear regular on their face
and relate to such Mortgage Loan, and (iii) based on such examination and only
as to the foregoing documents, the information set forth in the Mortgage Loan
Schedule with respect to the items specified in clauses (ii), (iii)(a) (based
solely on the Mortgage Rate shown on the related Mortgage Note and any
amendments or other modifications thereof contained in the Mortgage File), (iv)
and (vi)(B) of the definition of "Mortgage Loan Schedule" is correct.
(c) The Trustee or a Custodian on its behalf shall review each of
the documents relating to the Mortgage Loans received thereby subsequent to the
Closing Date; and, on or about the first anniversary of the Closing Date, the
Trustee shall, subject to Section 2.02(d), certify in writing to each of the
Depositor, the Master Servicer, the Special Servicer, and the Mortgage Loan
Sellers that as to each Mortgage Loan listed on the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or otherwise liquidated), and except
as specifically identified in any exception report annexed to such
certification, (i) all documents specified in clauses (i), (ii), (ix) and, if
the Mortgage Loan Schedule specifies that the related Mortgagor has a leasehold
interest in the related Mortgaged Property, (xiii) and, if the Mortgage Loan is
a Credit Lease Loan, (xxi) through (xxiv) of the definition of "Mortgage File"
are in its possession or the possession of a Custodian on its behalf, or each
Mortgage Loan Seller has otherwise satisfied the delivery requirements in
respect of such documents in accordance with Section 2.01(c), (ii) it or a
Custodian on its behalf has received either the original or copy of each of the
assignments specified in clauses (iii) and (v) of the definition of "Mortgage
File" that were delivered by the Mortgage Loan Sellers, with evidence of
recording thereon, (iii) all documents received by it or any Custodian in
respect of such Mortgage Loan have been reviewed by it or by such Custodian on
its behalf and appear regular on their face and relate to such Mortgage Loan,
and (iv) based on the examinations referred to in subsection (b) above and this
subsection (c) and only as to the foregoing documents, the information set forth
in the Mortgage Loan Schedule with respect to the items specified in
clauses (ii), (iii), (iv), (vi)(B) and (xix) of the definition of "Mortgage Loan
Schedule", is correct.
(d) It is herein acknowledged that, notwithstanding any other
provision hereof, neither the Trustee nor any Custodian is under any duty or
obligation (i) to determine whether any of the documents specified in
clauses (iv) through (viii), (x) through (xii) and (xiv) through (xviii), (xx),
(xxi) (with respect to any modifications or amendments or recorded memoranda
unless the Trustee is notified in writing of the existence thereof), (xxii),
(xxiii) and (xxiv) (unless the Trustee is notified in writing of the existence
thereof), (xxv) (in the case of any assignment unless the Trustee is notified in
writing of the existence thereof) and (xxvi) (unless Trustee is notified in
writing of the existence thereof) of the definition of "Mortgage File" exist or
are required to be delivered by the Mortgage Loan Sellers in respect of any
Mortgage Loan or (ii) to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Mortgage Loans
delivered to it to determine that the same are genuine, enforceable, in
recordable form or appropriate for the represented purpose, or that they are
other than what they purport to be on their face.
(e) If, in the process of reviewing the documents delivered or
caused to be delivered by the Mortgage Loan Sellers pursuant to Section 2.01(c),
the Trustee or any Custodian discovers that any document required to have been
delivered pursuant to Section 2.01(c) has not been so delivered, or discovers
that any of the documents that were delivered has not been properly executed,
contains information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule, or is
defective on its face (each, including, without limitation, that a document is
missing, a "Document Defect"), or if, at any other time, the Trustee or any
other party hereto discovers a Document Defect in respect of any Mortgage Loan,
the party discovering such Document Defect shall promptly so notify each of the
other parties hereto. If and when such party is notified of or discovers any
error in the Mortgage Loan Schedule, NationsBank, if a NationsBank Mortgage Loan
is affected, or CLF, if a Credit Lease Loan is affected, shall promptly correct
such error and distribute a new, corrected Mortgage Loan Schedule to each of the
other parties hereto. Such new, corrected Mortgage Loan Schedule shall be deemed
to amend and replace the existing Mortgage Loan Schedule.
SECTION 2.03 Mortgage Loan Sellers'Repurchase of Mortgage Loans for
Document Defects and Certain Breaches of Representations and Warranties.
(a) Within 90 days of the earlier of discovery or receipt of written
notice by the Responsible Party, of a Document Defect in respect of any Mortgage
Loan or a breach of any representation or warranty set forth in Section 2.05(c)
and Section 2.05(d), as applicable in respect of any Mortgage Loan, which
Document Defect or breach, as the case may be, materially and adversely affects
the value of such Mortgage Loan or the interests of the Certificateholders
therein, the Responsible Party shall cure such Document Defect or breach, as the
case may be, in all material respects or repurchase (or, if the Responsible
Party is NationsBank, cause an Affiliate to purchase) the affected Mortgage Loan
at the applicable Purchase Price by deposit of such Purchase Price into the
Certificate Account and delivery to the Trustee of a written certification that
such deposit has been made. However, if such Document Defect or breach is
capable of being cured but not within the 90 day period and the Responsible
Party has commenced and is diligently proceeding with the cure of such Document
Defect or breach within such 90 day period (as evidenced by an Officer's
Certificate of the Responsible Party delivered to the Trustee setting forth the
circumstances surrounding such delay, the measures being undertaken to cure such
Document Defect or breach and a representation that it is diligently pursuing
such measures), such Responsible Party shall have an additional 90 days to
complete such cure (or, failing such cure, to repurchase the related Mortgage
Loan). Notwithstanding the immediately preceding sentence, within 90 days of the
earlier of discovery or receipt of written notice by the Responsible Party that
there is a Document Defect or other breach of the representations and warranties
set forth in Section 2.05(c)(xxxi), (lii), (liii) or (liv) or Section
2.05(d)(xxix), as applicable (that causes any Mortgage Loan to not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code), the
Responsible Party shall either cure such defect or breach or repurchase such
Mortgage Loan at the applicable Purchase Price by deposit of such Purchase Price
into the Certificate Account and delivery to the Trustee of a written
certification that such deposit has been made.
(b) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the Trustee, the Master Servicer and the
Special Servicer shall each tender or cause to be tendered to the Responsible
Party, upon delivery to each of the Trustee, the Master Servicer and the Special
Servicer of a receipt executed by the Responsible Party, all portions of the
Mortgage File and other documents and funds pertaining to such Mortgage Loan
possessed by it (or any Custodian or Sub-Servicer on its behalf), and each
document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed or assigned, as the case may be, to or
at the direction of the Responsible Party, in the same manner. The form,
sufficiency and expense of all such instruments and certificates shall be the
responsibility of the Responsible Party.
(c) This Section 2.03 provides the sole remedies available to the
Certificateholders, or to the Trustee on behalf of the Certificateholders,
respecting any Document Defect or any breach of any representation or warranty
set forth in Section 2.05(c) and Section 2.05(d) hereof. If the Responsible
Party defaults on its obligations to repurchase any Mortgage Loan in accordance
with Section 2.03(a) hereof, or disputes its obligation to repurchase any
Mortgage Loan in accordance with any such provision, the Trustee shall promptly
notify the Certificateholders and, subject to Sections 8.01 and 8.02 and its
right to reimbursement pursuant to Section 8.05(b), shall take such action as
may be appropriate to enforce such payment or performance, including, without
limitation, the institution and prosecution of appropriate proceedings. If it is
judicially determined or subsequently agreed that the Responsible Party is
required to repurchase such Mortgage Loan under Section 2.03(a) or 2.03(b)
hereof, the Responsible Party shall reimburse the Trustee for all necessary and
reasonable costs and expenses incurred in connection with such enforcement, and
otherwise the Trustee's right of reimbursement shall be limited to amounts on
deposit in the Distribution Account from time to time in accordance with
Section 8.05(b) and to such other sources of security and indemnity as shall
have been offered to the Trustee by the Certificateholders.
SECTION 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties to this Agreement and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by
the Depositor, will not violate the Depositor's certificate of
incorporation or bylaws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the
Depositor in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor which would prohibit the
Depositor from entering into this Agreement or, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(viii) Assuming the accuracy of the representation and warranty of
NationsBank made pursuant to Section 2.05(c)(i) hereof and of CLF made
pursuant to Section 2.05(d)(i) hereof, immediately prior to the transfer
of the Mortgage Loans by the Depositor to the Trustee hereunder, the
Depositor had good and marketable title to, and was the sole owner of,
each such Mortgage Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to such mortgage Loan (other
than, in certain cases, the right of a sub-servicer to primary service
such Mortgage Loan subject to Section 3.22 hereof).
(b) Upon discovery by any of the parties hereto of a breach of any
of the foregoing representations and warranties which materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
SECTION 2.05 Representations and Warranties of the Mortgage Loan
Sellers.
(a) NationsBank hereby represents and warrants to the other parties
hereto and for the benefit of the Certificateholders, as of the Closing Date,
that:
(i) NationsBank is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States.
(ii) The execution and delivery of this Agreement by NationsBank,
and the performance and compliance with the terms of this Agreement by
NationsBank, will not violate NationsBank's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) NationsBank has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of NationsBank, enforceable against NationsBank in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) NationsBank is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in NationsBank's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of NationsBank to perform its obligations under this Agreement or the
financial condition of NationsBank.
(vi) No litigation is pending or, to the best of NationsBank's
knowledge, threatened against NationsBank which would prohibit
NationsBank from entering into this Agreement or, in NationsBank's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of NationsBank to perform its obligations under
this Agreement or the financial condition of NationsBank.
(vii) The Sub-Servicing Agreement in place as of the Closing Date
complies with the requirements of this Agreement in all material
respects.
(viii) All consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for
the execution, delivery and performance of this Agreement by NationsBank
have been obtained or made.
(b) CLF hereby represents and warrants to the other parties hereto
and for the benefit of the Certificateholders, as of the Closing Date, that:
(i) CLF is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by CLF, and the
performance and compliance with the terms of this Agreement by CLF, will
not violate CLF's certificate of limited partnership or partnership
agreement or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is
a party or which is applicable to it or any of its assets.
(iii) CLF has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of CLF, enforceable against CLF in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) CLF is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in CLF's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of CLF to perform its
obligations under this Agreement or the financial condition of CLF.
(vi) No litigation is pending or, to the best of CLF's knowledge,
threatened against CLF which would prohibit CLF from entering into this
Agreement or, in CLF's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of CLF to perform its
obligations under this Agreement or the financial condition of CLF.
(vii) All consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for
the execution, delivery and performance of this Agreement by CLF have
been obtained or made.
(c) NationsBank hereby represents and warrants (and, accordingly, is
the "Representing Party" with respect to each such representation and warranty
so made) with respect to (but solely with respect to) each NationsBank Mortgage
Loan to the other parties hereto and for the benefit of the Certificateholders,
as of the date hereinbelow specified or, if no such date is specified, as of the
Closing Date, that:
(i) Immediately prior to the transfer thereof by Representing Party
to the Depositor, the Representing Party had good and marketable title
to, and was the sole owner and holder of, such Mortgage Loan, free and
clear of any and all liens, encumbrances and other interests on, in or to
such Mortgage Loan (other than, in certain cases, the right of a
Sub-Servicer to primary service such Mortgage Loan subject to Section
3.22 hereof).
(ii) The Representing Party had full right and authority to sell,
assign and transfer such Mortgage Loan to the Depositor.
(iii) The information pertaining to such Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects
as of the Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Cut-off Date or at any
time during the twelve-month period prior thereto, 30 days or more
delinquent in respect of any Monthly Payment of principal and/or interest
required thereunder, without giving effect to any applicable grace
period.
(v) Each Mortgage securing such Mortgage Loan constitutes a valid
first lien upon the related Mortgaged Property, including, without
limitation, all buildings located thereon and all fixtures attached
thereto, subject only to (and such Mortgaged Property is free and clear
of all encumbrances and liens having priority over the lien of such
Mortgage, except for) (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record, (C) the right of tenants (whether under ground leases, space
leases or operating leases) at the Mortgaged Property to remain following
a foreclosure or similar proceeding (provided that such tenants are
performing under such leases), (D) exceptions and exclusions specifically
referred to in the lender's title insurance policy issued or, as
evidenced by a "marked-up" commitment, to be issued in respect of such
Mortgage Loan and (E) if such Mortgage Loan is cross-collateralized with
any other Mortgage Loan, the lien of the Mortgage for such other Mortgage
Loan (the exceptions set forth in the foregoing clauses (A), (B), (C),
(D), and (E), collectively, "Permitted Encumbrances"). Such Permitted
Encumbrances do not materially interfere with the security intended to be
provided by the related Mortgage(s), the current use of the related
Mortgaged Property, or the ability of the related Borrower to timely pay
in full the principal and interest on the Mortgage Loan. In the case of
each NationsBank Mortgage Loan secured by a Mortgaged Property that is
operated as a hotel, the related loan documents contain such provisions
as are necessary, and UCC Financing Statements have been filed as
necessary, in each case to perfect a valid security interest in the hotel
revenues with respect to such Mortgage Loan. A UCC Financing Statement
has been filed and/or recorded in all places necessary to permit a valid
security interest in the personal property, granted under such Mortgage;
any security agreement, chattel mortgage or equivalent document related
to and delivered in connection with the Mortgage Loan establishes and
creates a valid and enforceable first lien and first priority security
interest on the property described therein (except as enforceability may
be limited by bankruptcy or other laws affecting creditor's rights
generally or by the application of general principles of equity).
(vi) The lien of each related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of the related Mortgage Loan,
its successors and assigns, as to the first priority lien of the Mortgage
in the original principal amount of the related Mortgage Loan after all
advances of principal, subject only to Permitted Encumbrances (or, if a
title insurance policy has not yet been issued in respect of any Mortgage
Loan, a policy meeting the foregoing description is evidenced by a
commitment for title insurance "marked-up" at the closing of such loan).
(vii) The Representing Party has not waived any material default,
breach, violation or event of acceleration existing under the related
Mortgage or Mortgage Note.
(viii) There is no valid offset, defense or counterclaim to such
Mortgage Loan.
(ix) The Representing Party has no actual knowledge (A) that there
is any proceeding pending or threatened for the total or partial
condemnation of the related Mortgaged Property or (B) that there is any
material damage at the related Mortgaged Property that materially and
adversely affects the value of such Mortgaged Property.
(x) At origination, such Mortgage Loan complied in all material
respects with all requirements of federal, state and local laws,
including, without limitation, laws pertaining to usury, relating to the
origination of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully disbursed,
and there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage(s) for such Mortgage Loan and
all other documents and instruments evidencing, guaranteeing, insuring or
otherwise securing such Mortgage Loan are each the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse
provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency legislation), enforceable in accordance
with their respective terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xiii) The related Mortgaged Property is: (A) if a commercial
property, insured by a fire and extended perils insurance policy, issued
by an insurer meeting the requirements of such Mortgage Loan in an amount
not less than the greater of (1) the replacement cost and (2) the amount
necessary to avoid the operation of any co-insurance provisions with
respect to such Mortgaged Property, and is also covered (except if such
Mortgaged Property is operated as a mobile home park), by rental
insurance in an amount equal to the gross rentals for at least a 12-month
period (or, in the case of a Mortgaged Property not having an elevator,
for at least a 6-month period), broad form boiler and machinery insurance
and comprehensive general liability insurance, covering at least
$1,000,000 per occurrence; such insurance policy provides that it shall
not be canceled, endorsed, altered or reissued to effect a change in
coverage unless such insurer shall have first given the mortgagee under
such Mortgage Loan ten days prior written notice, and no notice has been
received as of the date hereof; all premiums required to be paid on such
policy have been paid; at least ten days prior to the expiration date of
such policy, the related Mortgage requires the Mortgagor to deliver to
the mortgagee under the Mortgage Loan a renewal policy in form and
substance satisfactory to the holder of the Mortgage Loan; the related
Mortgage obligates the Mortgagor to maintain all such insurance and, at
the Mortgagor's failure to do so, authorizes the mortgagee under such
Mortgage Loan to purchase such insurance at the Mortgagor's cost and
expense and to seek reimbursement from such Mortgagor; and (B) if a
multifamily property, insured by a fire and extended perils insurance
policy, issued by an insurer meeting the requirements of such Mortgage
Loan and covering rent loss (for at least a 12-month period or, in the
case of a Mortgaged Property not having an elevator, for at least a
6-month period), comprehensive general liability insurance coverage,
covering at least $1,000,000 per occurrence, and such other hazards,
casualties, liabilities and contingencies as required by the holder of
the Mortgage Loan and in such amounts and for such periods as required by
the holder of the Mortgage Loan; at least fifteen days prior to the
expiration date of such policy, the related Mortgage requires the
Mortgagor to deliver to the mortgagee under such Mortgage Loan a renewal
policy in form satisfactory to the Master Servicer; all premiums required
to be paid on such policy have been paid; the Mortgage obligates the
related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the mortgagee to purchase such
insurance at the Mortgagor's cost and expense and to seek reimbursement
from such Mortgagor. In addition, if the related Mortgaged Property is
located in a federally designated special flood hazard area, the related
Mortgagor is required to maintain flood insurance in respect thereof
(exclusive of any parking lot or unused or undeveloped portion thereof).
(xiv) In connection with or subsequent to the origination of such
Mortgage Loan, one or more Phase I Environmental Assessments (or an
update of a previously conducted assessment) were performed with respect
to the related Mortgaged Property, and the Representing Party, having
made no independent inquiry other than reviewing the resulting report(s)
and/or employing an environmental consultant to perform the assessment(s)
referenced herein, has no knowledge of any material and adverse
environmental condition or circumstance affecting such Mortgaged Property
that was not disclosed in the related report(s). Where such assessments
disclosed the existence of such a material condition or circumstance
affecting a Mortgaged Property and recommended that action be taken,
(i) a party not related to the related Mortgagor was identified as the
responsible party for such condition or circumstance, or (ii) the related
Mortgagor was required to obtain an operations and maintenance plan, or
(iii) funds sufficient to effect such action were escrowed, in each case
consistent with any such recommendation and in accordance with the
underwriting standards of the Mortgage Loan Seller.
(xv) Except as indicated on the Mortgage Loan Schedule, such
Mortgage Loan is not cross-collateralized with other Mortgage Loans in
the Mortgage Pool. Such Mortgage Loan is not cross-collateralized with a
mortgage loan outside the Mortgage Pool.
(xvi) Except as contained in the related Mortgage File, the terms of
the Mortgage Note and Mortgage(s) for such Mortgage Loan have not been
impaired, waived, altered or modified in any material respect.
(xvii) There are no delinquent taxes, ground rents, insurance
premiums, assessments, including, without limitation, assessments payable
in future installments, or other similar outstanding charges (and, to the
actual knowledge of the Representing Party, at origination of such
Mortgage Loan, there were no delinquent water charges or sewer rents)
affecting the related Mortgaged Property.
(xviii) The interest of the Mortgagor in the related Mortgaged
Property consists of a fee simple and/or leasehold interest in real
property.
(xix) Such Mortgage Loan is a whole loan and not a participation
interest.
(xx) The assignment of the related Mortgage to the Trustee is in
recordable form and constitutes the legal, valid and binding assignment
of such Mortgage from the relevant assignor to the Trustee, and the
assignment of the related Assignment of Leases, if any, or of any other
agreement executed in connection with such Mortgage Loan to the Trustee
constitutes the legal, valid and binding assignment thereof from the
relevant assignor to the Trustee.
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan that
were required to be delivered to the mortgagee under the terms of the
related loan documents, have been received and, to the extent of any
remaining balances of such escrow deposits, are in the possession, or
under the control of the Representing Party or its agents (which shall
include the Master Servicer) and all the Depositor's and the Mortgage
Loan Seller's rights with respect thereto are conveyed hereunder.
(xxii) As of the date of origination of such Mortgage Loan and as of
the Closing Date, the related Mortgaged Property was and is free and
clear of any mechanics' and materialmen's liens or liens in the nature
thereof which create a lien prior to that created by the related
Mortgage(s).
(xxiii) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at the
time of origination of such Mortgage Loan lies outside the boundaries and
building restriction lines of such property to any material extent, and
no improvements on adjoining properties encroach upon such Mortgaged
Property to any material extent, and no improvement located on or forming
part of such Mortgaged Property is in material violation of any
applicable zoning laws or ordinances (except to the extent that they may
constitute legal non-conforming uses).
(xxiv) To the extent required under applicable law as of the Closing
Date and necessary for the enforceability or collectability of the
Mortgage Loan, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan.
(xxv) There is no material default, breach or event of acceleration
existing under the related Mortgage or Mortgage Note, and the
Representing Party has not received actual notice of any event (other
than payments due but not yet delinquent) that, with the passage of time
or with notice and the expiration of any grace or cure period, would
constitute such a material default, breach or event of acceleration;
provided, however, that this representation and warranty does not cover
any default, breach or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and warranty
made by the Representing Party in any of paragraphs (iv), (xiv), (xvii),
(xxi), (xxiii) and (xxix) of this Section 2.05(c).
(xxvi) If such Mortgage Loan is secured in whole or in part by the
interest of a Mortgagor under a Ground Lease and by the related fee
interest, such fee interest is subordinate to the related Mortgage and
the related Mortgage does not by its terms provide that it will be
subordinated to the lien of any mortgage or any other lien upon such fee
interest.
(xxvii) Such Mortgage Loan does not contain any equity participation
by the lender, provide for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged Property
or provide for the negative amortization of interest.
(xxviii) No holder of such Mortgage Loan has, to the Representing
Party's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of
any amount required by the Mortgage Loan.
(xxix) To the Representing Party's knowledge, based on due diligence
customarily performed in the origination of comparable mortgage loans, as
of the date of origination of such Mortgage Loan, (A) the related
Mortgagor was in possession of all material licenses, permits and
authorizations required by applicable laws for the ownership and
operation of the related Mortgaged Property as it was then operated and
(B) all such licenses, permits and authorizations were valid and in full
force and effect.
(xxx) The related Mortgage(s) or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in clauses (c)(v) and (c)(xii)
above) such as to render the rights and remedies of the holders thereof
adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be
provided thereby.
(xxxi) Such Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage, or any substantially
similar successor provision).
(xxxii) Reserved.
(xxxiii) No fraud with respect to such Mortgage Loan has taken place
on the part of the Representing Party in connection with the origination
of such Mortgage Loan.
(xxxiv) The terms of such Mortgage Loan provide or, at lender's
option, permit, and the terms of this Agreement and any Sub-Servicing
Agreement to which such Mortgage Loan is subject provide for purposes of
calculating distributions on the Certificates and additional compensation
payable to the Master Servicer, the Special Servicer and any related
Sub-Servicer, that payments on and proceeds of such Mortgage Loan will be
applied to principal and interest at the related Mortgage Rate due and
owing at the time such payments or proceeds are received, prior to being
applied to any Default Charges, assumption fees and modification fees
then due and owing.
(xxxv) If such Mortgage Loan is, as of the Closing Date, subject to
a Sub-Servicing Agreement, such Sub-Servicing Agreement provides that the
related Sub-Servicer is not to receive any sub-servicing compensation
with respect to such Mortgage Loan during any period that such Mortgage
Loan is a Specially Serviced Mortgage Loan or an REO Loan (except for any
Termination Strip payable to a Sub-Servicer in connection with a
termination thereof without cause as contemplated by
Section 3.22(d) hereof).
(xxxvi) The servicing and collection practices used with respect to
such Mortgage Loan have been in all material respects legal and prudent
and have met customary standards utilized by prudent institutional
multifamily and commercial mortgage loan servicers.
(xxxvii) Unless the related Mortgaged Property is owner occupied,
the Mortgage File for such Mortgage Loan contains an Assignment of Leases
either as a separate instrument or incorporated into the related
Mortgage, which creates, in favor of the holder, a valid, perfected and
enforceable lien of the same priority as the related Mortgage, in the
property and rights described therein; provided that the enforceability
of such lien is subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws affecting the enforcement of
creditors' rights generally, and by the application of the rules of
equity. The Representing Party has the full right to assign to the
Trustee such Assignment of Leases and the lien created thereby as
described in the immediately preceding sentence. No Person other than the
Mortgagor owns any interest in any payments due under the related leases.
(xxxviii) No Mortgage Loan is encumbered by secured subordinated
debt.
(xxxix) Reserved.
(xl) In the event fraud was committed by the Mortgagor in connection
with the origination thereof, such Mortgage Loan becomes a recourse
obligation of the Mortgagor.
(xli) As of the Closing Date, the related Mortgagor was not, to the
best of the Representing Party's actual knowledge, a debtor in any state
or federal bankruptcy or insolvency proceeding.
(xlii) Reserved.
(xliii) The Representing Party has no actual knowledge of any
pending litigation or other legal proceedings involving the related
Mortgagor or the related Mortgaged Property that can reasonably be
expected to materially interfere with the security intended to be
provided by the related Mortgage, the current use of the related
Mortgaged Property, or the current ability of the Mortgaged Property to
generate net operating income sufficient to service the Mortgage Loan.
(xliv) If such Mortgage Loan had a Cut-off Date Balance greater than
1% of the Initial Pool Balance, then the related Mortgagor has covenanted
in its organizational documents (or its organizational documents
otherwise provide for it), or in the loan documents, the case of the
Mortgage Loan identified on the Mortgage Loan Schedule as loan number
50786 (the "Decatur Town Center Loan") to own no significant asset other
than the related Mortgaged Property, Mortgaged Properties securing other
Mortgage Loans and assets incidental to the ownership and operation of
such Mortgaged Property or Properties. In addition, if such Mortgage Loan
had a Cut-off Date Balance greater than 1% of the Initial Pool Balance,
the related Mortgagor has covenanted in its organizational documents
and/or the Mortgage Loan documents to be (for so long as such Mortgage
Loan is outstanding) a single-purpose entity. For this purpose, "single
purpose entity" means a person, other than an individual, whose
organizational documents provide that it is formed solely for the purpose
of owning the related Mortgaged Property, Mortgaged Properties securing
other Mortgage Loans and assets incidental to the ownership and operation
of such Mortgaged Property or Properties, and which has agreed, either in
such organizational documents or the loan documents relating to any
related Mortgage Loan, that it (a) does not engage in any business
unrelated to such property and the financing thereof; (b) does not have
any indebtedness other than as permitted by the related Mortgage, (c)
maintains its own books, records and accounts, in each case which are
separate and apart from the books, records and accounts of any other
person; (d) conducts business in its own name; (e) does not guarantee or
assume the debts or obligations of any other person; (f) does not
commingle its assets or funds with those of any other person; (g)
transacts business with affiliates on an arm's length basis; and (h)
holds itself out as being a legal entity separate and apart from any
other person. In addition, such entity's organizational documents provide
that any dissolution and winding up or insolvency filing for such entity
requires either the unanimous consent of all partners or members, as
applicable, or the consent of an independent person (whether as a
partner, member, or director in such entity or in any person that is the
managing member or general partner of such entity or otherwise), and
either such organizational documents or the terms of the Mortgage Loan
documents provide that such organizational documents may not be amended
without the consent of the lender as regards such single-purpose entity
requirements. The Mortgage Loan Seller has not waived such covenants and
has no knowledge that any such Mortgagor is not in compliance therewith.
(xlv) Neither the related Mortgage Note nor the related Mortgage
requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except
upon (i) payment in full of all amounts due under the related Mortgage
Loan or (ii) a substitution of government securities for such Mortgaged
Property in a defeasance complying with paragraph (liv) of this
Section 2.05(c).
(xlvi) Such Mortgage Loan does not permit the related Mortgaged
Property to be encumbered subsequent to the Closing Date by any lien
junior to or of equal priority with the lien of the related Mortgage
without the prior written consent of the holder thereof.
(xlvii) Reserved.
(xlviii) Reserved.
(xlix) With respect to any Mortgage Loan secured by a Mortgage
constituting a valid first lien on an unencumbered interest of the
Mortgagor as lessee under a Ground Lease of the related Mortgaged
Property, but not by the related fee interest in such Mortgaged Property,
the Representing Party represents and warrants that:
(A) The lessor under such Ground Lease has agreed in
writing and included in the related mortgage file that
the Ground Lease may not be amended, modified, canceled
or terminated without the prior written consent of the
mortgagee;
(B) The Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with,
the Mortgage. The Ground Lease is, and provides (except
in the case of the Ground Lease related to the Decatur
Town Center Loan which does not expressly provide) that
it shall remain, prior to any mortgage or other lien
upon the related fee interest;
(C) Under the terms of the Ground Lease, any related
insurance proceeds or condemnation award will be
applied either (1) to the repair or restoration of all
or part of the related Mortgaged Property or (2) to the
payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest, it
being understood that in respect of a total or
substantially total loss or taking, only option (2) may
apply, subject to applicable law;
(D) the Ground Lease or a memorandum thereof has been duly
recorded, the ground lease permits the interest of the
lessee thereunder to be encumbered by the related
Mortgage, and there has not been a material change in
the terms of the Ground Lease since its recordation,
with the exception of written instruments that are part
of the related Mortgage File;
(E) the related borrower's interest in the Ground Lease is
assignable to the Trustee upon notice to, but without
the consent of, the lessor thereunder (or if any such
consent is required, it has been obtained prior to the
Closing Date) or in the event that it is so assigned,
it is further assignable by the Trustee and its
successors and assigns upon notice to, but without a
need to obtain the consent of, such lessor;
(F) as of the Closing Date, the Ground Lease is in full
force and effect and to the Representing Party's actual
knowledge, no default has occurred under the Ground
Lease and there is no existing condition which, but for
the passage of time or the giving of notice, would
result in a default under the terms of the Ground
Lease;
(G) the Ground Lease requires the lessor thereunder to
enter into a new lease with the lender upon termination
of the Ground Lease for any reason, including rejection
of the Ground Lease in a bankruptcy proceeding;
(H) If such Mortgage Loan is secured by a mortgage lien on
the applicable Mortgagor's leasehold interest under a
Ground Lease, such Ground Lease has an original term
(or an original term plus one or more optional renewal
terms, which, under all circumstances, may be
exercised, and will be enforceable, by the mortgagee if
it takes possession of such leasehold interest) that
extends not less than 10 years beyond the stated
maturity of the related Mortgage Loan;
(I) The originator is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the Mortgagor under the
Ground Lease through legal proceedings) to cure any
default under the Ground Lease which is curable after
the receipt of notice of any default before the ground
lessor may terminate the Ground Lease. All cure rights
of the Mortgagor under the Ground Lease and the related
Mortgage (insofar as it relates to the Ground Lease)
may be exercised by or on behalf of the originator;
(J) either (A) the related ground lessor has subordinated
its interest in the related Mortgaged Property to the
interest of the holder of the Mortgage Loan or (B) the
related ground lessor has granted the holder of the
Mortgage Loan the right to notice and an opportunity to
cure any default or breach by the lessee. Upon the
foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the related Ground Lease is
assignable to the mortgagee under the leasehold estate
and its assigns without the consent of the ground
lessor thereunder; and
(K) such Ground Lease does not permit any increase in the
amount of rent payable by the lessee thereunder during
the term of the Mortgage Loan.
(l) Such Mortgage Loan was originated by or for a savings and loan
association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by a
Federal or State authority, or by a mortgagee approved by the Secretary
of Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act; each Mortgaged Property consists of one or more
parcels of real property upon which is located one or more commercial
structures and otherwise meets the requirements for eligibility under the
Secondary Mortgage Market Enhancement Act of 1984 for commercial
property.
(li) With respect to each Mortgage Loan not originated by the
Representing Party:
(A) such Mortgage Loan was underwritten in accordance with
standards established by the Representing Party, using
application forms and related credit documents approved
by the Representing Party;
(B) the Representing Party approved each application and
related credit documents before a commitment by the
Mortgage Loan originator was issued, and no such
commitment was issued until the Representing Party
agreed to fund such Mortgage Loan;
(C) the Mortgage Loan was originated by the Mortgage Loan
originator pursuant to an ongoing, standing
relationship with the Representing Party;
(D) the closing documents (which include assignment
documents executed by the Mortgage Loan originator in
favor of the Representing Party at the time of the
closing of the Mortgage Loan) for the Mortgage Loan
were prepared on forms approved by the Representing
Party, and reflect the Representing Party as the
successor and assign to the Mortgage Loan originator;
and
(E) such Mortgage Loan either was actually funded by and
assigned to the Representing Party at the closing
thereof, or was funded initially by the Mortgage Loan
originator at the closing thereof and then acquired by
the Representing Party from such Mortgage Loan
originator pursuant to its ongoing, standing
relationship with the Representing Party.
(lii) (1) Such Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (2) the fair
market value of the real property securing such Mortgage Loan was at
least equal to 80% of the principal amount of the Mortgage Loan (a) at
origination (or if the Mortgage Loan has been modified in a manner that
constitutes a deemed exchange under Section 1001 of the Code at a time
when the Mortgage Loan was not in default or default with respect thereto
was not reasonably foreseeable, the date of the last such modification)
or (b) at the Closing Date. For purposes of this representation and
warranty, the fair market value of the real property interest has been
reduced by (A) the amount of any lien on the real property interest that
is senior to the Mortgage Loan (unless such senior lien also secures a
Mortgage Loan, in which event the computation described in (a) and (b)
has been made on a aggregated basis) and (B) a proportionate amount of
any lien that is in parity with the Mortgage Loan (unless such other lien
secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in (a) and (b) has been
made on an aggregate basis).
(liii) With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
(liv) If such Mortgage Loan contains a provision for any defeasance
of mortgage collateral, such Mortgage Loan permits defeasance (1) no
earlier than two years after the Closing Date, (2) only with substitute
collateral constituting "government securities" within the meaning of
Treas. Reg. 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Note and (3) only to facilitate the
disposition of the Mortgaged Property and not as a part of an arrangement
to collateralize a REMIC offering with obligations that are not real
estate mortgages. In addition, if such Mortgage contains such a
defeasance provision, it provides that the loan be assumed by a
Single-Purpose Entity designated by the holder of the Mortgage Loan and
that an opinion be provided to the effect that such holder has a first
priority perfected security interest in the defeasance collateral. The
related mortgage loan documents enable the lender to charge the expenses
associated with permitting a defeasance to the Mortgagor.
(lv) Under the terms of the related Mortgage, any insurance proceeds
or condemnation award with respect to the Mortgaged Property will be
applied either (1) to the repair or restoration of all or part of the
related Mortgaged Property or (2) to the payment of the outstanding
principal balance of the Mortgage Loan, together with accrued interest,
it being understood that in respect of a total or substantially total
loss or taking, only option (2) may apply.
(lvi) If the related Mortgage is a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the deed of trust, and
no fees or expenses are or will become payable to the trustee under the
deed of trust, except in connection with the sale or release of the
Mortgaged Property following default or payment of the Mortgage Loan.
(lvii) No claims have been made under any title insurance policy,
and to the Representing Party's actual knowledge, no action has been
taken which would materially impair such policy.
(lviii) Each Mortgage Loan originated by the Representing Party was
underwritten consistent in all material respects with the standards of
the Representing Party as then in effect.
(lix) The related Mortgage File contains an Appraisal of the
Mortgaged Property, and such Appraisal and the related appraiser satisfy
the requirements of Title XI of the Federal Institutions, Reform,
Recovery and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated.
(lx) The related Mortgaged Property is on a separate tax parcel or
parcels.
(lxi) The Mortgage contains a "due on sale" clause that provides for
the acceleration of the payment of the unpaid principal balance of the
Mortgage Loan if, without the prior written consent of the holder (except
in certain limited intra-family transfers or certain transfers of the
less than 49% of the ultimate beneficial ownership of the Mortgagor), the
Mortgaged Property subject to the Mortgage, or any interest therein, is
directly or indirectly transferred or sold.
(lxii) The related Mortgaged Property (i) is located on or adjacent
to a dedicated road, or has access to an irrevocable easement permitting
ingress and egress; (ii) is served by public utilities and services
generally available in the surrounding community; and (iii) is serviced
by well or public and sewer systems (or septic facilities).
(d) CLF hereby represents and warrants (and, accordingly, is the
"Representing Party" with respect to each such representation and warranty so
made) with respect to (but solely with respect to) each Credit Lease Loan to the
other parties hereto and for the benefit of the Certificateholders, as of the
date hereinbelow specified or, if no such date is specified, as of the Closing
Date, that:
(i) Good Title. Immediately prior to the transfer thereof by
Representing Party to the Depositor, the Representing Party had good and
marketable title to, and was the sole owner and holder of, such Credit
Lease Loan, free and clear of any and all liens, encumbrances and other
interests on, in or to such Credit Lease Loan. The Representing Party had
full right and authority to sell, assign and transfer such Credit Lease
Loan to the Depositor and has validly and effectively conveyed (or caused
to be conveyed) to the Depositor all legal and beneficial interest in and
to such Credit Lease Loans free and clear of any pledge, lien or security
interest; the Mortgage Note is properly endorsed to the Trustee or its
designee and each such endorsement is genuine;
(ii) Mortgage Files. The Representing Party has delivered (or caused
to be delivered) to the Master Servicer, the Trustee or the Custodian on
the Trustee's behalf a complete Mortgage File for the Credit Lease Loan,
except as may otherwise be expressly permitted under Section 2.01;
(iii) Mortgage Loan Schedule. The information pertaining to such
Credit Lease Loan set forth in the Mortgage Loan Schedule was true and
correct in all material respects as of the Cut-off Date;
(iv) Debt Service Coverage Ratio. The debt service coverage ratio
with respect to each Credit Lease Loan, based upon Monthly Rental
Payments and any applicable debt service reserve account, is not less
than 1.003 now or over the term of the Credit Lease Loan and the
loan-to-value ratio is not greater than 100% except for the Credit Lease
Loans identified on the Mortgage Loan Schedule as loan numbers 2451, 2452
and 2453 (the "Food Lion Loans") which have a loan-to-value ratio of
101.6%;
(v) Payment Record. Such Credit Lease Loan was not, as of the
Cut-off Date or at any time during the twelve-month period prior thereto,
30 days or more delinquent in respect of any Monthly Payment of principal
and/or interest required thereunder, without giving effect to any
applicable grace period;
(vi) Separate Tax Parcel. The related Mortgaged Property is on a
separate tax parcel or parcels;
(vii) First Lien. Each Mortgage securing such Credit Lease Loan
constitutes a valid first lien upon the related Mortgaged Property,
including, without limitation, all buildings located thereon and all
fixtures attached thereto, subject only to (and such Mortgaged Property
is free and clear of all encumbrances and liens having priority over the
lien of such Mortgage, except for) (A) the lien of current real property
taxes and assessments not yet due and payable, (B) covenants, conditions
and restrictions, rights of way, easements and other matters of public
record, (C) the right of tenants (whether under ground leases, space
leases or operating leases) at the Mortgaged Property to remain following
a foreclosure or similar proceeding (provided that such tenants are
performing under such leases), (D) exceptions and exclusions specifically
referred to in the lender's title insurance policy issued or, as
evidenced by a "marked-up" commitment, to be issued in respect of such
Credit Lease Loan and (E) if such Credit Lease Loan is
cross-collateralized with any other Credit Lease Loan, the lien of the
Mortgage for such other Credit Lease Loan (the exceptions set forth in
the foregoing clauses (A), (B), (C), (D), and (E), collectively,
"Permitted Encumbrances"). Such Permitted Encumbrances do not materially
interfere with the security intended to be provided by the related
Mortgage(s), the current use of the related Mortgaged Property, or the
ability of the related Borrower to timely pay in full the principal and
interest on the Credit Lease Loan. A Form UCC-1 financing statement has
been filed and/or recorded in all places necessary to perfect a valid
security interest in the personal property, if any, granted under such
Mortgage; any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Credit Lease Loan
establishes and creates a valid and enforceable first lien and first
priority security interest on the property described therein (except as
enforceability may be limited by bankruptcy or other laws affecting
creditor's rights generally or by the application of general principals
of equity);
(viii) Waivers and Modifications. None of the terms of the Credit
Lease Loans have been impaired, waived, altered or modified in any
material respect, except by written instruments, all of which are
included in the related Mortgage File (and all such waivers, alterations
and modifications have been filed and/or recorded or are being submitted
for recordation in all places necessary to perfect, maintain and continue
the validity and priority of the lien of the Mortgage), and the related
Tenant, Mortgagor or guarantor, if any, has not been released, in whole
or in part, from its obligations under the related Credit Lease or Credit
Lease Loan;
(ix) No Offset or Defense. There is no valid offset, defense or
counterclaim to any Credit Lease Loan (including the defense of usury),
nor will the operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any rights thereunder, render the Mortgage
Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, offset, abatement, diminution, defense or
counterclaim except that certain terms and conditions, rights and
remedies provided for in the loan documents may be unenforceable, but any
such unenforceability shall not render the loan documents unenforceable
as a whole, nor will lender be denied the practical realization of the
material benefits of the loan documents; and no such right of rescission,
offset, abatement, diminution, defense or counterclaim has been asserted
with respect to any Credit Lease Loan;
(x) Mortgage Status. Neither the Representing Party nor any prior
holder of any Credit Lease Loan has satisfied, canceled, rescinded or
subordinated the Credit Lease Loan in whole or in part, released the
Mortgaged Property in whole or in part from the lien of the Mortgage or
executed any instrument that would effect any such satisfaction,
cancellation, rescission, subordination or release. The terms of the
Mortgage do not provide for a release of any portion of the Mortgaged
Property from the lien of the Mortgage except upon payment in full of all
obligations under the Mortgage, except for the Credit Lease Loan
identified on the Mortgage Loan Schedule as loan number 1212 (the "East
Rockaway CVS Loan"), whose related Mortgage permits the release of a
non-material portion of the Mortgaged Property upon the satisfaction of
certain criteria, including but not limited to, Rating Agency approval;
(xi) Casualty; Condemnation. The Representing Party has no knowledge
(A) that there is any proceeding pending or threatened for the total or
partial condemnation of the related Mortgaged Property, or (B) that there
is any material damage at the related Mortgaged Property that materially
and adversely affects the value of such Mortgaged Property. In the event
that the related Credit Lease may be terminated or rent may be abated
upon the occurrence of a casualty or condemnation, and such Credit Lease
does not contain a Purchase Option, such Credit Lease Loan has the
benefit of a noncancelable Lease Enhancement Policy for which the entire
premium has been paid in full;
(xii) Legal Compliance. At origination, such Credit Lease Loan
complied in all material respects with all requirements of federal, state
and local laws, including, without limitation, laws pertaining to usury,
relating to the origination of such Credit Lease Loan;
(xiii) Title Insurance. The lien of each Mortgage is insured by an
ALTA lender's title insurance policy (or a binding commitment therefor),
or its equivalent as adopted in the applicable jurisdiction, insuring
(subject to (a) the lien of current real property taxes, ground rents,
water charges, sewer rents and assessments not yet due and payable, and
(b) the exceptions (general and specific) set forth in such policy, none
of which, individually or in the aggregate, materially interferes with
the use of the Mortgaged Property as contemplated by the related Credit
Lease or materially detracts from the benefit of the first priority lien
of the Mortgage) the Representing Party, its successors and assigns, as
to the first priority lien of the Mortgage in the original principal
amount of the Credit Lease Loan after all advances of principal; the
Representing Party is the sole named insured of such policy; all premiums
thereon have been paid; such policy has been issued or endorsed to the
Trustee for the benefit of the Certificateholders without the consent of
or any notification to the insurer, and is in full force and effect upon
the consummation of the transactions contemplated by this Agreement; no
claims have been made under such policy and the Representing Party has no
knowledge of any matter which would impair or diminish the coverage of
such policy; the insurer issuing such policy is qualified to do business
in the jurisdiction in which the Mortgaged Property is located; such
policy contains no exclusion for or affirmatively insures (a) access to a
public road, (b) that there are no encroachments of any part of the
buildings thereon over easements (except for any Mortgaged Property
located in jurisdictions where such affirmative insurance is not
available) and (c) that the area shown on the survey is the same as the
property legally described in the Mortgage; each such title insurance
policy is in an amount of at least 100% of the original principal amount
of the related Credit Lease Loan;
(xiv) No Holdbacks. The proceeds of each Credit Lease Loan have been
fully disbursed (except in those cases where the full amount of the
Credit Lease Loan has been funded but a portion thereof is being held in
escrow pending the satisfaction of certain criteria), and there is no
obligation for future advances with respect thereto. Any and all
requirements under each Credit Lease Loan as to completion of any on-site
or off-site improvement and as to disbursements of any funds escrowed for
such purpose, which requirements were to have been complied with on or
before the Closing Date, have been complied with or any such funds so
escrowed have not been released; no cash deposits, letters of credit,
pledged accounts, surety bonds or other cash equivalent items have been
or are held by or for the account of the Representing Party to assure
compliance by the Mortgagor with any of its obligations under the Credit
Lease except as otherwise set forth in any Borrower Reserve Agreement;
(xv) Insurance. The Mortgaged Property and all improvements thereon
are covered by insurance policies providing coverage against loss or
damage sustained by (i) fire and extended perils included within the
classification "All Risks of Physical Loss" in an amount not less than
the principal balance of the Mortgage Note and sufficient to prevent the
Mortgagor from being deemed a co-insurer; such policies provide coverage
on a full replacement cost basis and contain no reduction for
depreciation; (ii) except for those Credit Leases listed on Schedule V
(which are Bond-Type Leases and other Credit Leases where the Tenant may
not xxxxx rent for casualty), business interruption or rental loss
insurance in an amount at least equal to 12 months of operations of the
Mortgaged Property; (iii) flood insurance (if any portion of the
Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency as having special flood hazards); (iv)
comprehensive general liability insurance in amounts as are generally
required by prudent commercial mortgage lenders for similar properties;
and (v) workers' compensation insurance. The insurer with respect to each
policy is qualified to write insurance in the relevant jurisdiction and
has a claims paying ability or financial strength rating from the Rating
Agency of not less than "A". The insurance policies contain a standard
mortgage clause naming the mortgagee, its successors and assigns as
additional insureds, and provide that they are not terminable and may not
be reduced without thirty (30) days prior written notice to the mortgagee
(except for the East Rockaway CVS Loan, which provides for 20 days
notice); all premiums due and payable through the Closing Date have been
made; no notice of termination or cancellation with respect to any such
policies has been received by the Representing Party. Each Mortgage
requires that the Mortgagor maintain insurance as described above or
permits the mortgagee to require insurance as described above. The
Mortgage for each Credit Lease Loan provides that proceeds paid under any
such casualty insurance policy will (or, at the mortgagee's option, will)
be applied either to the repair or restoration of the related Mortgaged
Property or to the payment of amounts due under such Credit Lease Loan;
(xvi) No Mortgagor Bankruptcy. As of the Closing Date, the related
Mortgagor was not, to the best of the Representing Party's actual
knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding;
(xvii) Policies. In the case of a Credit Lease Loan with a Lease
Enhancement Policy and/or an Extended Amortization Policy, the entire
premium has been paid in full for each such policy, such policies are
each in full force and effect, and the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency legislation), enforceable in accordance with their
respective terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(xviii) Sources of Payments. There is no obligation on the
Representing Party's part or on any other party to make supplemental
payments in addition to those made by the Mortgagor (other than the
obligations of the Tenant under the related Credit Lease), and the Credit
Lease Loan contains no provisions whereby Monthly Loan Payments may be
paid, in whole or in part, from any source other than the Mortgagor
(other than from Monthly Rental Payments, by the Tenant under the related
Credit Lease and from the Borrower Reserve Fund) nor from funds deposited
in any separate account established by the Representing Party, the
Mortgagor or any third party on the Mortgagor's behalf;
(xix) Trustee under Deed of Trust. In the case of any Mortgage which
is a deed of trust, a trustee, duly qualified under applicable law to
serve as such, has been properly designated and currently so serves and
is named in the deed of trust or has been substituted in accordance with
applicable law, and no fees or expenses are, or will become, payable to
the trustee under the deed of trust, except in connection with a
trustee's sale after default by the Mortgagor or in connection with the
release of the Mortgaged Property or related security for the Credit
Lease Loan following the payment of the Credit Lease Loan in full;
(xx) Credit Leases. The Mortgaged Property is subject to a Credit
Lease, and such Credit Lease is in full force and effect, and is a legal,
valid, binding and enforceable agreement of the related Tenant, except as
may be limited by bankruptcy, insolvency or other laws affecting the
rights of creditors generally, and general principles of equity. To the
best of the Representing Party's knowledge, no default by the Mortgagor
or the Tenant has occurred under such Credit Lease and there is no
existing condition which, but for the passage of time or the giving of
notice, or both, would result in a default under the terms of such Credit
Lease;
(xxi) Assignment of Leases. The Mortgage File contains an Assignment
of Leases, either as a separate instrument or incorporated into the
related Mortgage, which creates in favor of the Trustee a valid,
perfected and enforceable lien, of the same priority as the related
Mortgage, in the property and rights described therein (except as
enforceability may be limited by bankruptcy or other laws affecting
creditor's rights generally, or by the application of general principles
of equity), including the right to Basic Rent and, to the extent payable
under each Credit Lease, additional rent due under the related Credit
Lease. The Depositor has the full right to assign to the Trustee such
Assignment of Leases and the lien created thereby as described in the
immediately preceding sentence. No person other than the Mortgagor owns
any interest in any payments due under the related Credit Leases;
(xxii) Priority. The Credit Lease is subordinate in right to the
related Mortgage subject to the terms and conditions of a subordination,
non-disturbance and attornment agreement between the lender and the
Tenant; any subleases entered into by Tenant will be subject and
subordinate to the Credit Lease and will not relieve the Tenant of its
obligations under the Credit Lease; in the event that the Trustee
acquires title to a Mortgaged Property by foreclosure or otherwise, the
lessor's interest under the related Credit Lease is freely assignable by
the Trustee and its successors and assigns to any person without the
consent of the Tenant, and, in the event the lessor's interest is so
assigned, the Tenant will be obligated to recognize the assignee as
lessor under such Credit Lease;
(xxiii) Credit Lease Term. The Credit Lease has an original term
ending on or after the date the Mortgagor is required to deposit its
final payment on the related Credit Lease Loan with the Trustee or
Servicer, except with respect to Credit Lease Loans listed on Schedule V
which Credit Lease Loans are covered by an Extended Amortization Policy;
(xxiv) Basic Rent Sufficient. Each remaining payment of Basic Rent
due under each Credit Lease is sufficient to pay each Monthly Loan
Payment due under the related Credit Lease Loan in full on or prior to
the Due Date thereof without giving effect to any applicable grace
periods) currently and over the term of the Credit Lease Loan, except for
the Credit Lease Loans listed on the attached Schedule V, where (A) the
initial term of the related Credit Lease expires prior to the maturity
date of the Credit Lease Loan, but which Credit Lease Loan is covered by
an Extended Amortization Policy, in which the Extension Insurer agrees to
either pay an amount equal to the unpaid principal balance and accrued
but unpaid interest on the Credit Lease Loan in full or pay an amount
equal to all monthly principal and interest on the Credit Lease Loan from
lease expiration to loan maturity, in the event the related Tenant does
not exercise its option to extend the Credit Lease and the related
Mortgagor defaults in the payment of such amounts; and (B) the Monthly
Lease Payments may not be sufficient to pay the entire amount of
scheduled principal and interest because underwritten rent increases
based on the Consumer Price Index necessary for fixed rent to match
scheduled debt service may not be realized, but which Credit Lease Loan
is covered by a consumer price index policy in which the insurer agrees
to pay any such deficit if the related Mortgagor does not pay such
amount. The interest rate on the Credit Lease Loan is a fixed rate. The
Basic Rent under the Credit Lease are payable without notice or demand,
and without setoff, recoupment, abatement or reduction, except as
described in paragraphs (lvi), (lxvi) and (lxvii);
(xxv) Cross-Collateralization. Each Mortgage Note is not, and has
not been since the date of origination of the related Credit Lease Loan,
secured by any collateral except the lien of the related Mortgage, an
assignment of the related leases, and any related security agreement, and
the related Mortgaged Property does not secure any other loan or
obligation not represented by the related Mortgage Note (except for those
Credit Lease Loans listed on Schedule V, which related Mortgaged
Properties are each owned by the same Mortgagor, which Mortgagor executed
a separate Mortgage Note for each Mortgaged Property's loan, and which
loans are cross-defaulted and cross-collateralized with each other). No
Credit Lease Loan is cross-defaulted with any other loan or obligation
(except for those loans listed on Schedule V). All cross-collateralized
loans listed on Schedule V are cross-collateralized only with each other.
The Credit Lease Loan does not contain any equity participation by the
originator and, with the exception of the Blue Cross Loan, is a whole
loan and not a participation interest in a mortgage loan;
(xxvi) Valid and Binding Obligation. The Mortgage Note and
Mortgage(s) for such Credit Lease Loan and all other documents and
instruments evidencing, guaranteeing, insuring or otherwise securing such
Credit Lease Loan are each the legal, valid and binding obligation of the
maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency
legislation), enforceable in accordance with their respective terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(xxvii) No Sale of Mortgaged Property. To the best of the
Representing Party's knowledge, no sale of any Mortgaged Property is
pending or contemplated by the Mortgagor and, to the best of the
Representing Party's knowledge, there is no assignment of any Credit
Lease by any Tenant contemplated or pending, and no person has any
outstanding exercisable rights of record with respect to the purchase or
sale of all or any portion of such Mortgaged Property, including, without
limitation, any right of first offer or refusal or purchase option except
those which would exceed the then current principal balance of the Credit
Lease Loan plus accrued but unpaid interest or would otherwise require
the consent of the originator;
(xxviii) Taxes. There are no delinquent taxes, ground rents,
insurance premiums, assessments, including, without limitation,
assessments payable in future installments, or other similar outstanding
charges (and, to the actual knowledge of the Representing Party, at
origination of such Credit Lease Loan, there were no delinquent water
charges or sewer rents) affecting the related Mortgaged Property;
(xxix) REMIC LTV. (1) The Credit Lease Loan is directly secured by a
Mortgage on a commercial property or multifamily residential property,
and (2) the fair market value of such real property was at least equal to
80% of the principal amount of the Credit Lease Loan (a) at origination
(or, if the Credit Lease Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of the Code at a time
when the Credit Lease Loan was not in default or default with respect
thereto was not reasonably foreseeable, the date of the last such
modification) or (b) at the Closing Date; provided that the fair market
value of the real property interest must first be reduced by (A) the
amount of any lien on the real property interest that is senior to the
Credit Lease Loan (unless such senior lien also secures a Credit Lease
Loan, in which event the computation described in (a) and (b) shall be
made on a aggregated basis) and (B) a proportionate amount of any lien
that is in parity with the Credit Lease Loan (unless such other lien
secures a Credit Lease Loan that is cross-collateralized with such Credit
Lease Loan, in which event the computation described in (a) and (b) shall
be made on an aggregate basis);
(xxx) Subordination Agreement and Estoppel Letter. The Tenant has
delivered an estoppel letter and to the extent required to make the
Credit Lease subordinate to the Mortgage, a subordination,
non-disturbance and attornment agreement with respect to each Credit
Lease. Where the Tenant is a guarantor of the Credit Lease, each
guarantor has delivered a guarantor estoppel certificate, (A) except for
those Credit Lease Loans described in Schedule V, where the guaranty was
executed either contemporaneously with, or within 30 days of loan
closing, and (B) except for those Credit Lease Loans described in
Schedule V, where the guarantor refused to supply a guarantor estoppel
certificate;
(xxxi) Mortgage Provisions. The Mortgage Note, Mortgage and
Assignment of Leases for each Credit Lease Loan contain customary and
enforceable provisions for commercial mortgage loans secured by
properties such as the Mortgaged Properties, so as to render the rights
and remedies of the holder adequate for the realization against the
Mortgaged Property of the benefits of the security, including realization
by judicial, or if applicable, nonjudicial foreclosure subject to the
effect of bankruptcy and similar laws affecting the rights of creditor
and the application of principles of equity;
(xxxii) Local Law Compliance. Based on title endorsements, legal
opinions and other third party letters received at closing, the Mortgaged
Property is in compliance with all applicable laws, zoning ordinances,
rules, covenants and restrictions affecting the construction, occupancy
and use of such Mortgaged Property. To the best of the Representing
Party's knowledge based on customary due diligence performed by prudent
commercial mortgage lenders, all inspections, licenses and certificates
required, including certificates of occupancy, whether by law, ordinance,
regulation or insurance standards currently required to be made or issued
with regard to the construction, occupancy and use of the Mortgaged
Property, have been obtained and are in full force and effect. Any
non-conformity with zoning laws constitutes a legal non-conforming use or
structure which, in the event of casualty or destruction, may be restored
or repaired to the full extent of the use or structure at the time of
such casualty, or for which law and ordinance insurance coverage has been
obtained in amounts customarily required by prudent commercial mortgage
lenders;
(xxxiii) Environmental Compliance. In the Mortgage, the Mortgagor
represents and warrants that it has not and will not use, cause or permit
to exist on the related Mortgaged Property any hazardous materials in any
manner that violates federal, state or local laws, ordinances,
regulations, orders, directives or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production
or disposal of hazardous materials. The Mortgagor agrees to indemnify,
defend and hold the lender and its successors and/or assigns harmless
from and against any and all losses, liabilities, damages, injuries,
penalties, fines, expenses, and claims of any kind whatsoever (including
attorney's fees and costs) paid, incurred, or suffered by, or asserted
against, any such party resulting from a breach of any environmental
representation, warranty or covenant given by the Mortgagor under the
Mortgage. A Phase I Environmental Assessment was performed on the related
Mortgaged Property by a professional experienced in environmental matters
with respect to each Mortgaged Property in connection with the
origination of the related Credit Lease Loan (none of which is dated more
than 12 months prior to the Closing Date, except for those Credit Lease
Loans described in Schedule V, which have Phase I Environmental
Assessments which are dated not more than 21 months of the date hereof)
and either (x) no such Phase I Environmental Assessment reveals any known
circumstances or conditions with respect to the related Mortgaged
Property that rendered such Mortgaged Property, at the date of such Phase
I Environmental Assessment, in violation of any applicable environmental
laws or (y) if any such Phase I Environmental Assessment does reveal any
such circumstances or conditions with respect to the related Mortgaged
Property, then either (i) the same have been remediated in all material
respects, or (ii) sufficient funds have been escrowed for purposes of
effecting such remediation, or (iii) other responsible party is currently
taking or has covenanted in the future to take such actions, if any, with
respect to such circumstances or conditions as have been recommended by
the Phase I Environmental Assessment or required by the applicable
governmental regulatory authority (including implementation of an
operations and maintenance agreement), or (iv) appropriate environmental
insurance has been obtained and is in full force and affect. To the
Representing Party's knowledge, there are no circumstances or conditions
with respect to such Mortgaged Property not revealed in such Phase I
Environmental Assessment that render such Mortgaged Property in violation
of any applicable environmental laws. Each Mortgage requires the related
Mortgagor to comply, and to cause the related Mortgaged Property to be in
compliance with all applicable federal, state and local environmental
laws and regulations. The Credit Lease tenant has expressly agreed to
indemnify the related Mortgagor from any claims of any nature arising as
a result of any hazardous materials affecting the property caused by the
Credit Lease tenant and arising after commencement of the Credit Lease,
except for those Credit Leases listed on Schedule V attached hereto;
(xxxiv) Transfers and Subordinate Debt. The Mortgage contains a "due
on sale" clause that provides for the acceleration of the payment of the
unpaid principal balance of the Credit Lease Loan if, without the prior
written consent of the holder (except in certain limited intra-family
transfers or certain transfers of less than 49% of the ultimate
beneficial ownership of the Mortgagor), the Mortgaged Property subject to
the Mortgage, or any interest therein, is directly or indirectly
transferred or sold. Except in the case of the Blue Cross Loan, under
which rating agency approval is required for any such pledge or lien, the
Mortgage prohibits any further pledge or lien on the Mortgaged Property,
whether equal or subordinate to the lien of the Mortgage, without the
prior written consent of the holder of the related Credit Lease Loan;
(xxxv) Escrow Deposits. All escrow deposits (including capital
improvements and environmental remediation reserves) relating to such
Credit Lease Loan that were required to be delivered to the mortgagee
under the terms of the related loan documents, have been received and, to
the extent of any remaining balances of such escrow deposits, are in the
possession, or under the control of the Representing Party or its agents
(which shall include the Master Servicer);
(xxxvi) Single-Purpose Entity. Each Mortgagor is an entity whose
organizational documents provide that it is, and at least so long as the
Credit Lease Loan is outstanding will continue to be, a single purpose
entity. For this purpose, "single purpose entity" means a person, other
than an individual, which is formed solely for the purpose of owning and
operating a single property (except for the borrower listed on Schedule
V, which owns three properties) -- does not engage in any business
unrelated to such property and the financing thereof -- does not have any
assets other than those related to its interest in the property or the
financing thereof or any indebtedness other than as permitted by the
related Mortgage; maintains its own books, records and accounts, in each
case which are separate and apart from the books, records and accounts of
any other person; conducts business in its own name and uses separate
stationery, invoices and checks; does not guarantee or assume the debts
or obligations of any other person; does not commingle its assets or
funds with those of any other person; transacts business with affiliates
on an arm's length basis pursuant to written agreements; and holds itself
out as being a legal entity, separate and apart from any other person.
Each entity's organizational documents provide that any dissolution and
winding up or insolvency filing for such entity requires the unanimous
consent of all partners or members, as applicable. Each entity's
organizational documents provide that they may not be amended with
respect to the single purpose entity (as defined above) requirements
during the term of the Credit Lease Loan;
(xxxvii) Mortgagor's Interest in Mortgaged Property. The related
Mortgagor under each Credit Lease Loan has good and indefeasible title in
fee simple to the related Mortgaged Property comprising real estate and
improvements owned by the Mortgagor, except for any portion thereof
subject to a ground lease or sub-ground lease which, in the case of
Credit Lease Loans listed on Schedule V, is secured in whole or in part
by a leasehold estate and addressed in (lxx) below, and except for any
Permitted Encumbrances. The building and improvements on the Mortgaged
Property are owned by the Mortgagor and are used and occupied for
commercial purposes in accordance with applicable law;
(xxxviii) Default. To the Representing Party's knowledge, there is
no payment default and no other material default, breach, violation or
event of acceleration under any of the related Mortgage Note, Mortgage or
Assignment of Leases; no such default or breach has been waived by the
Representing Party or on its behalf or, to the Representing Party's
knowledge, by the Representing Party's predecessors in interest with
respect to the Credit Lease Loans; and, to the Representing Party's
knowledge, no event has occurred which, with the passing of time or
giving of notice would constitute a material default or breach, except
for the occurrence of such an event under the Mortgage related to the
Credit Lease Loan indicated on the Mortgage Loan Schedule as loan number
1838 (the "Flint Pep Boys Loan") under which the borrower has received
notice of the imposition of a mechanic's lien in the amount of $14,000
and for which the borrower is obligated under the Mortgage Loan documents
to provide a bond to cover such lien or remove such lien. Such Credit
Lease Loan has not been accelerated and no foreclosure or power of sale
proceeding has been initiated in respect of the related Mortgage;
(xxxix) Location. The related Mortgaged Property (i) is located on
or adjacent to a dedicated road, or has access to an irrevocable easement
permitting ingress and egress; (ii) is served by public utilities and
services generally available in the surrounding community; and (iii) is
serviced by well or public water and sewer systems (or septic
facilities);
(xl) Improvements. All of the material improvements which form part
of any related Mortgaged Property lay wholly within the boundaries and
building restriction lines of such property, except for encroachments
that are insured against by the lender's title insurance policy referred
to herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, and no improvements on
adjoining properties materially encroach upon such Mortgaged Property so
as to materially and adversely affect the value or marketability of such
Mortgaged Property. With respect to each Credit Lease Loan, the property
legally described in the survey obtained, if any, for the related
Mortgaged Property for purposes of the origination thereof is the same as
the property legally described in the Mortgage;
(xli) Insurance Policies. All premiums with respect to the insurance
policies insuring each Mortgaged Property have been paid in a timely
manner or escrowed to the extent required by the Mortgage Loan documents
and the Representing Party has not received any notice of cancellation.
The Representing Party has no knowledge that any action, omission,
misrepresentation, negligence, fraud or similar occurrence has taken
place on the part of any person that would reasonably be expected to
result in the failure or impairment of full and timely coverage under any
such insurance policy;
(xlii) Legal Proceedings. The Representing Party has no actual
knowledge of any pending litigation or other legal proceedings involving
the related Mortgagor or the related Mortgaged Property that can
reasonably be expected to materially interfere with the security intended
to be provided by the related Mortgage, the current use of the related
Mortgaged Property, or the current ability of the Mortgaged Property to
generate net operating income sufficient to service the Credit Lease
Loan;
(xliii) Reports. Each Mortgage requires the Mortgagor to provide the
holder of the Credit Lease Loan with financial statements of the
Mortgagor and related information not less often than annually, or upon
the request of the Representing Party;
(xliv) Selection Process. The Representing Party took no action in
selecting the Credit Lease Loans for sale, assignment and transfer to the
Depositor hereunder which to the Representing Party's knowledge would
result in delinquencies and losses on Credit Lease Loans being materially
in excess of delinquencies and losses on the Representing Party's actual
portfolio of commercial mortgage loans;
(xlv) Fully-Amortizing Loan. Each Credit Lease Loan is
fully-amortizing over its original term except for the Credit Lease Loan
identified in on the Mortgage Loan Schedule as loan number 2560 (the
"Xxxxxx Loan"), which Credit Lease Loan is covered by an Extended
Amortization Policy that insures that a balloon payment due at the
maturity of the Credit Lease Loan will be paid. No Credit Lease Loan has
a shared appreciation feature, other contingent interest feature or
negative amortization;
(xlvi) Tenant Notice Obligation. Each Tenant has agreed to notify
the related mortgagee of any default under the related Credit Lease and
to provide the mortgagee with additional time and opportunity to cure,
(A) except for the loans listed on Schedule V, in which the Representing
Party is entitled to receive notice of default and is granted the
opportunity to cure within the same time the landlord is permitted to
cure; all such Credit Lease Loans listed on Schedule V, however, provide
that it is an event of default under the related Mortgage if the
Mortgagor, as landlord under the Credit Lease, does not cure such default
under the Credit Lease within one-half (1/2) the time permitted the
Mortgagor, as landlord under the Credit Lease, (B) except for those
Credit Lease Loans listed on Schedule V, the related Credit Leases of
which are Bond-Type or Triple Net Leases, except for two Credit Leases
which are Double Net Leases. (C) Certain Credit Lease Loans listed on
Schedule V provide for the mortgagee to receive notice of any default
under the related Credit Lease but the mortgagee does not have an express
right to cure; the related Credit Leases are either a Bond-Type Lease or
a Triple Net Lease;
(xlvii) Occupancy. Except for the Credit Leases listed on Schedule V
which schedule indicates where (i) property is subleased or has been
assigned or (ii) a material portion of the property is leased to another
party other than the Tenant under the Credit Lease, the related Mortgaged
Property is not subject to any lease other than the related Credit Lease,
no person has any possessory interest in, or right to occupy, the related
Mortgaged Property except under and pursuant to such Credit Lease and the
Tenant under the related Credit Lease is in occupancy of the Mortgaged
Property;
(xlviii) Reserved;
(xlix) Reserved;
(l) No Release of Tenant Obligation. To the knowledge of the
Representing Party, no Tenant (nor Credit Lease guarantor, if applicable)
has been released, in whole or in part, from its obligations under the
Credit Lease (or guaranty, as applicable);
(li) Right to Assign. Under the terms of the Credit Lease, the
Tenant is not permitted to assign or sublet its interest or obligations
under the Credit Lease unless such Tenant remains fully liable
thereunder, except for the Credit Lease related to the Credit Lease Loan
identified on the Mortgage Loan Schedule as loan number 1930 (the
"Philadelphia CVS Loan"), as to which Credit Lease the lease guarantor
remains fully liable;
(lii) Lockboxes. Each Tenant under a Credit Lease is required to
make all rental payments directly to the mortgagee, its successors and
assigns under the related Credit Lease Loan;
(liii) Construction or Substantial Rehabilitation. No Mortgage is
secured by a Mortgaged Property under construction or substantial
rehabilitation or where construction has not yet commenced, except for
Mortgages relating to the Credit Lease Loans listed on Schedule V, which
Credit Lease Loans have related Credit Leases that are ground leases;
(liv) Guaranty. (A) The Credit Lease Loans listed on Schedule V each
have Credit Leases that are guaranteed by the rated parent or affiliate
of the Tenant. With respect to any Credit Lease guarantied by the rated
parent or affiliate of the Tenant, to the knowledge of the Representing
Party, each such guaranty is in full force and effect, and no default
exists thereunder. (B) The borrower has agreed not to amend or release
the guaranty without the mortgagee's consent, and the guarantors have
agreed not to amend or release the guaranty without the mortgagee's
consent, except for those Credit Lease Loans listed on Schedule V,
wherein the guarantor has not expressly agreed not to amend or release
the guaranty, but which Credit Lease Loans each have personal recourse
guaranties to principals of the borrower for guaranty modifications or
releases made without the consent of the Representing Party, its
successors and assigns. In the event any Credit Lease is accompanied by a
guaranty from the rated parent or affiliate of the Tenant, (1) such
guaranty is legal, valid and binding against the guarantor, (2) to the
extent the Credit Lease was modified prior to the origination date, the
guaranty covers the Credit Lease as so modified, (3) no guaranty contains
any express provisions making such guaranty conditional, revocable or
contingent, or grants any express right of offset, counterclaim or
defense, (4) the guaranty is a guaranty of both the performance and
payment of the financial obligations of the Tenant, and (5) the guaranty
is binding on the guarantor, its successors and assigns and may not be
amended or released by the Mortgagor without the Trustee's consent.;
(lv) Bond-Type Leases and Termination of Payments. Each Bond-Type
Lease listed on the attached Schedule V is a bondable lease with no
termination or rent abatement rights by the Tenant, except in connection
with the exercise of a Purchase Option as described below. As to the
Bond-Type Leases, the obligations of the Tenant under the Credit Lease,
including, but not limited to, the obligation of the Tenant to pay fixed
and additional rent, are not affected by reason of any damage to or
destruction of any portion of the Mortgaged Property, any taking of the
Mortgaged Property or any part thereof by condemnation or otherwise, or
any prohibition, limitation, interruption, restriction, or interference
of the Tenant's use, occupancy or enjoyment of the Mortgaged Property;
provided, however, that the Credit Lease may permit a lease termination
in any such event if notice by the Tenant of such termination is
accompanied by the exercise of an option to purchase the Mortgaged
Property for at least the outstanding principal balance of the Credit
Lease Loan plus accrued interest ("Purchase Option");
(lvi) No Lessor Obligations. As to the Credit Leases (other than the
Bond-Type Leases), the Mortgagor does not have any monetary obligations
under the related Credit Lease (except as described herein and in
paragraph (lxvii)), and every obligation associated with managing,
owning, developing and operating the Mortgaged Property, including, but
not limited to, the costs associated with utilities, taxes, insurance,
capital and structural improvements and maintenance and repairs, either
is an obligation of Tenant or is an obligation of Mortgagor as the
landlord under the Credit Lease, but is fully reimbursable by Tenant,
except as to (i) anticipated maintenance, repair or replacement
obligations which may permit the related Tenant to either (A) offset
against or xxxxx payments of rent (including Basic Rent) or (B) terminate
such Credit Lease, in the case of the Double Net Leases listed on the
attached Schedule V, which obligations are mitigated by Borrower Reserve
Funds, and the respective obligations of the Mortgagor under the Credit
Lease and the Master Servicer and the Special Servicer under this
Agreement to perform Borrower Credit Lease Obligations, and (ii)
obligations which may give rise to additional termination or abatement
rights ("Additional Obligations") under the Double Net and Triple Net
Leases listed on the attached Schedule V, which Additional Obligations
are mitigated by Borrower Reserve Funds, and the respective obligations
of the Mortgagor under the Credit Lease and the Master Servicer and the
Special Servicer under this Agreement to perform Borrower Credit Lease
Obligations. As to the Bond-Type Leases, the Mortgagor does not have any
monetary obligations under the related Credit Lease, and every monetary
obligation associated with managing, owning, developing and operating the
Mortgaged Property (including, but not limited to, utilities, taxes,
insurance, ground rents, easement agreements, maintenance and repairs),
is an obligation of the Tenant. As to the Credit Leases (other than the
Bond-Type Leases), the Mortgagor, as landlord under the Credit Lease,
does not have any nonmonetary obligations under the Credit Lease, the
breach of which would result in the abatement of rent, a right of setoff
or termination of the Credit Lease, other than (i) the maintenance
obligations described herein and in paragraph (lxvii) under the Double
Net Leases listed on Schedule V, which are mitigated by Borrower Reserve
Funds, and the respective obligations of the Mortgagor under the Credit
Lease and the Master Servicer and the Special Servicer under this
Agreement to perform Borrower Credit Lease Obligations, and (ii)
Additional Obligations under the Double Net and Triple Net Leases listed
on the attached Schedules V, which Additional Obligations are mitigated
by Borrower Reserve Funds and the respective obligations of the Mortgagor
under the Credit Lease and the Master Servicer and the Special Servicer
under this Agreement to perform Borrower Credit Lease Obligations. In
particular, the Credit Leases listed on the attached Schedule V obligate
the Mortgagor, as landlord under the Credit Lease, to comply with or
cause the compliance with various restrictive use covenants affecting
property owned directly or indirectly by Mortgagor or its affiliates in
the area of the leased premises, which obligations are mitigated by the
respective obligations of the Mortgagor under the Credit Lease and the
Master Servicer and the Special Servicer under this Agreement to perform
Borrower Credit Lease Obligations (which include personal recourse
guaranties from principals of Mortgagor). As to the Bond-Type Leases, the
Mortgagor does not have any continuing nonmonetary obligations under the
related Credit Lease, the performance of which would involve a material
expenditure of funds;
(lvii) Lease Remedies. Each Credit Lease contains customary and
enforceable provisions which render the rights and remedies of the lessor
thereunder adequate for the enforcement and satisfaction of the lessor's
rights thereunder;
(lviii) Reserved;
(lix) Liens. As of the date of origination of such Credit Lease Loan
and, to the Representing Party's knowledge, as of the Closing Date, there
are no mechanics' or similar liens or claims which have been filed for
work, labor or material and, to the Representing Party's knowledge, there
are no claims outstanding that under applicable law could give rise to
such lien, affecting the related Mortgaged Property which are or may be a
lien prior to, or equal or coordinate with, the lien of the related
Mortgage;
(lx) Borrower Concentration. As of the Closing Date, not more than
5% of the aggregate outstanding principal amount of the Credit Lease
Loans have the same Mortgagor or, to the Representing Party's best
knowledge, are to Mortgagors which are affiliates of each other, except
as to the Credit Lease Loans described on Schedule V, each of which have
a non-consolidation opinion and borrowers which are bankruptcy remote;
(lxi) Servicing. No other person currently has been granted or
conveyed the right to service the Credit Lease Loans or receive any
consideration in connection therewith, except for Midland Loan Services,
Inc.;
(lxii) REMIC Compliance. Each Credit Lease Loan and related
collateral comply with all REMIC rules and regulations;
(lxiii) Servicing Practices. The servicing and collection practices
used with respect to the Credit Lease Loans have been legal and meet
customary standards utilized by prudent commercial mortgage loan
servicers;
(lxiv) Originator Authorized. To the extent required under
applicable law as of the Closing Date and necessary for the
enforceability or collectability of the Credit Lease Loan, the originator
of such Credit Lease Loan was authorized to do business in the
jurisdiction in which the related Mortgaged Property is located at all
times when it held the Credit Lease Loan;
(lxv) Defeasance. Each Credit Lease Loan containing provisions for
defeasance of mortgage collateral requires that (A) defeasance may not
occur prior to the earlier of (i) the time permitted by applicable REMIC
rules and regulations (if applicable) or (ii) four (4) years after the
closing date of the loan, (B) the replacement collateral consist of U.S.
government securities in an amount sufficient to make all scheduled
payments under the Mortgage Note when due, (C) independent certified
public accountants certify that the collateral is sufficient to make such
payments, (D) the loan be assumed by a single purpose entity (as defined
in (xxxvi)) above designated by the Mortgagor and approved by the holder
of the Credit Lease Loan, and (E) counsel provide an opinion that the
trustee has a perfected security interest in such collateral prior to any
other claim or interest;
(lxvi) Tenant Obligations. The obligations of the Tenant under the
Credit Lease, including, but not limited to, the obligation of the Tenant
to pay fixed and additional rent, are not affected by reason of: any
damage to or destruction of any portion of the leased property or any
taking of the leased property or any part thereof by condemnation or
otherwise, except for the Credit Leases listed on Schedule V which are
covered by (A) casualty Lease Enhancement Policies, and the Credit Leases
listed on Schedule V which are covered by (B) condemnation Lease
Enhancement Policies, and except for those Credit Leases under which
Tenant may terminate the Credit Lease by reason of damage or destruction
or condemnation of the property or any part thereof, but under which
Credit Leases the Tenant must purchase the leased property for a purchase
price at least equal to the amount necessary to pay off the related
Credit Lease Loan in full;
(lxvii) Maintenance Obligations. Any anticipated maintenance,
repair, or replacement obligations imposed by any easement or reciprocal
easement agreement either is a direct obligation of the Tenant or is an
obligation or liability of the Mortgagor, as landlord under the Credit
Lease, the costs and expenses of complying therewith are reimbursable by
Tenant, except for the Credit Lease Loan identified on the Mortgage Loan
Schedule as loan number 667 (the "Port Orange Walgreen Loan") which
Credit Lease Loan has maintenance, repair or replacement obligations of
the landlord under the applicable easement or reciprocal easement
agreement which are not direct obligations of the Tenant and which are
not reimbursable by Tenant, but which are mitigated by Borrower Reserve
Funds, and the respective obligations of the Mortgagor under the Credit
Lease and the Master Servicer and the Special Servicer under this
Agreement to perform Borrower Credit Lease Obligations;
(lxviii) Modification of the Credit Lease. Each Credit Lease Loan
provides that the related Credit Lease cannot be modified without the
consent of the mortgagee thereunder, and the Tenants have agreed that no
amendment, modification, termination or surrender of the Credit Lease
(except as expressly permitted by the Credit Lease) will be effective
without the prior written consent of the Representing Party or its
successors and assigns, except for those Credit Leases listed on Schedule
V, in which the Tenants under the related Credit Leases have not
expressly agreed to the foregoing, but which Credit Lease Loans include
personal recourse guaranties to principals of the Mortgagor, as landlord
under the Credit Lease, for modifications made without the consent of the
Representing Party or its successors and assigns;
(lxix) Loan Underwriting. Each Credit Lease Loan complies, in all
material respects, with all of the terms, conditions and requirements of
the Representing Party's underwriting standards in effect at the time or
origination of such Credit Lease Loan;
(lxx) Ground Leases. With respect to the Credit Lease Loans listed
on Schedule V, each of which is secured by, among other things, a
Mortgage constituting a valid first lien on an unencumbered interest of
the Mortgagor as lessee under a ground lease (the "Ground Lease"), but
not by the related fee interest in such portion of the Mortgaged
Property, the Depositor represents and warrants that:
(A) The Ground Lease or a memorandum regarding it has been
duly recorded. The Ground Lease permits the interest of
the Mortgagor to be encumbered by the related Mortgage
and does not restrict the use of the related Mortgaged
Property by such Mortgagor, its successors or assigns
in a manner that would adversely affect the security
provided by the related Mortgage. To the Representing
Party's best knowledge, there has been no material
change in the terms of such Ground Lease since its
recordation, except by written instruments, all of
which are included in the related Mortgage File.
(B) The lessor under such Ground Lease has agreed in
writing and included in the related Mortgage File that
the Ground Lease may not be amended, modified, canceled
or terminated without the prior written consent of the
originator and its assigns and that any such action
without such consent is not binding on the originator,
its successors or assigns.
(C) The Ground Lease has an original term (or an original
term plus one or more optional renewal terms, which,
under all circumstances, may be exercised, and will be
enforceable, by the originator) that extends not less
than 10 years beyond the stated maturity of the related
Credit Lease Loan.
(D) The Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with,
the Mortgage other than Permitted Encumbrances and such
Ground Lease is, and provides that it shall remain
prior to any mortgage or other lien upon the related
fee interest except for the Credit Lease Loan
identified on the Mortgage Loan Schedule as loan number
1400 (the "Old Forge Rite Aid Loan"), in which the
Ground Lease will be subordinate to a fee mortgage,
provided the fee mortgagee enters into a
non-disturbance agreement with the ground tenant.
(E) Except for fixed, currently determinable rent
increases, such Ground Lease does not permit any
increase in the amount of Monthly Rental Payment
payable by the Tenant thereunder during the term of the
Credit Lease Loan; for any such Ground Lease that has a
fixed, currently determinable rent increase, the
related Credit Lease Loan's debt service coverage will
not be affected by any such rent increase.
(F) The Ground Lease is assignable to the originator under
the leasehold estate and its assigns without the
consent of the ground lessor thereunder.
(G) The Ground Lease is in full force and effect and, to
the Representing Party's actual knowledge after due
inquiry, no default has occurred, nor is there any
existing condition which, but for the passage of time
or giving of notice, would result in a default under
the terms of the Ground Lease.
(H) Such Ground Lease (or other written agreement signed by
lessor) requires the lessor to give notice of any
default by the Tenant to the mortgagee; and such Ground
Lease (or other written agreement) further provides
(except for the Ground Lease related to the Old Forge
Rite Aid Loan, where the Ground Lease does not
expressly so provide, but which expressly grants the
mortgagee the right to cure Ground Lease defaults that
no notice given thereunder is effective against the
mortgagee unless a copy has been given to the
mortgagee.
(I) The mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the Mortgagor under the
Ground Lease through legal proceedings) to cure any
default under the Ground Lease which is curable after
the receipt of notice of any default before the ground
lessor may terminate the Ground Lease. All cure rights
of the Mortgagor under the Ground Lease and the related
Mortgage (insofar as it relates to the Ground Lease)
may be exercised by or on behalf of the originator.
(J) The Ground Lease does not impose any restrictions on
subletting that would be viewed as commercially
unreasonable by an institutional investor. The Tenant
is not permitted to disturb the possession, interest or
quiet enjoyment of any subtenant of the ground lessor
in the relevant portion of the Mortgaged Property
subject to the Ground Lease for any reason, or in any
manner, which would adversely affect the security
provided by the related Mortgage.
(K) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance
proceeds and condemnation awards (other than in respect
of a total or substantially total taking) will be
applied either (A) to the repair or restoration of all
or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right
to hold and disburse such proceeds as repair or
restoration progresses, or (B) to the payment of the
outstanding principal balance of the Credit Lease Loan,
together with any accrued interest thereon.
(L) Under the terms of such Ground Lease and the related
Mortgage, taken together, (a) any related condemnation
award in respect of a total or substantially total
taking of the related Mortgaged Property will be
applied first to the payment of the outstanding
principal balance of the Credit Lease Loan, together
with any accrued interest thereon, except in cases
where a different allocation would not be viewed as
commercially unreasonable by a prudent commercial
mortgage lender, taking into account the relevant
duration of the Ground Lease and the related Mortgage,
and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance
of such Credit Lease Loan, and except for the Ground
Lease listed on Schedule V, which provides that
proceeds in a certain amount shall first be payable to
Ground Lessor, but as to which the Lease Enhancement
Policy applies.
(M) The Ground Lease requires the lessor thereunder to
enter into a new lease with the lender upon termination
of the Ground Lease for any reason, including rejection
of the Ground Lease in a bankruptcy proceeding;
(lxxi) Prepayment Premium. With respect to such Credit Lease Loan,
any prepayment premium constitutes a "customary prepayment penalty"
within the meaning of Treasury Regulations Section 1.860G-1(b)(2);
(lxxii) The Tenant cannot terminate the Credit Lease for any reason,
prior to the payment in full of or the payment of funds sufficient to pay
in full (1) the principal balance of the Credit Lease Loan, (2) all
accrued and unpaid interest on the Credit Lease Loan and (3) any other
sums due and payable under the Credit Lease Loan, as of the termination
date; except for a termination due to a default by the related Mortgagor
under the Credit Lease, as described in (lvi) above, or a termination due
to casualty or condemnation as described in (lv) and (lxvi) above; and
(lxxiii) The Credit Lease is in full force and effect and, to the
Representing Party's actual knowledge, no right or claim of rescission,
offset, abatement, diminution, defense or counterclaim to a Credit Lease
has been asserted with respect thereto, nor is there any existing
condition which, but for the passage of time or giving of notice, would
result in a right or claim of rescission, offset, abatement, diminution,
defense or counterclaim under the terms of any Credit Lease.
(e) It is understood and agreed that the representations and
warranties set forth in this Section 2.05 shall survive delivery of the
respective Mortgage Files to the Trustee or a Custodian on its behalf and shall
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence, notwithstanding any restrictive or qualified
endorsement or assignment. Upon discovery by any of the parties hereto of a
breach of any of the representations and warranties set forth in subsections (a)
and (b) above which materially and adversely affects the interests of the
Certificateholders or any party hereto or a breach of any of the representations
and warranties set forth in subsection (c) and subsection (d) above which
materially and adversely affects the value of any Mortgage Loan or the interests
therein of the Certificateholders, the party discovering such breach shall give
prompt written notice to each of the other parties hereto. It is further
understood and agreed that NationsBank makes no representations or warranties
with regard to the Credit Lease Loans and that NationsBank has no obligation to
cure any breach of any representation or warranty made by CLF with respect to a
Credit Lease Loan nor to repurchase any Credit Lease Loan. It is also further
understood and agreed that CLF makes no representations or warranties with
regard to the NationsBank Mortgage Loans and that CLF has no obligation to cure
any breach of any representation or warranty made by NationsBank with respect to
a NationsBank Mortgage Loan nor to repurchase any NationsBank Mortgage Loan.
SECTION 2.06 Representations, Warranties and Covenants of the Master
Servicer.
(a) The Master Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Master Servicer is duly organized, validly existing and in
good standing as a corporation under the laws of the State of Delaware,
and the Master Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets,
which default, in the Master Servicer's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability
of the Master Servicer to perform its obligations under this Agreement or
the financial condition of the Master Servicer.
(iii) The Master Servicer has the full corporate power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and
(B) general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c). None of the
Master Servicer or any of its officers or employees that is involved in
the servicing or administration of the Mortgage Loans has been refused
such coverage or insurance.
(viii) All consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for
the execution, delivery and performance of this Agreement by the Master
Servicer have been obtained or made.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
(d) The Master Servicer covenants that by September 30, 1999, any
custom-made software or hardware designed or purchased or licensed by the Master
Servicer and used by the Master Servicer in the course of the operation or
management of, or the compiling, reporting or generation of data required by
this Agreement will not contain any material deficiency (x) in the ability of
such software or hardware to identify correctly or perform calculations or other
processing with respect to dates after September 30, 1999 or (y) that would
cause such software or hardware to be fit no longer for the purpose for which it
was intended by reason of the changing of the date from 1999 to 2000. The
foregoing matters extend and relate only to the internal functioning of the
software and hardware maintained by the Master Servicer, and the Master Servicer
shall not be responsible for the accuracy or integrity of any data or
calculations provided to the Master Servicer by any third party. A breach of the
covenant set forth in this Section 2.06(d) shall constitute an Event of Default
pursuant to Section 7.01(a)(vi) and such Event of Default shall be subject to
the remedies set forth in Article VII.
SECTION 2.07 Representations, Warranties and Covenants of the
Special Servicer.
(a) The Special Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Special Servicer is duly organized, validly existing and in
good standing as a corporation under the laws of the State of Delaware,
and the Special Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets, which default, in the Special Servicer's good faith and
reasonable judgment, is likely to materially and adversely effect either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and
(B) general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in
the Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Special
Servicer to perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c). None of the
Special Servicer or any of its respective officers or employees that is
involved in the servicing or administration of the Mortgage Loans has
been refused such coverage or insurance.
(viii) All consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for
the execution, delivery and performance of this Agreement by the Special
Servicer have been obtained or made.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.07(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.07(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.07(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
(d) The Special Servicer covenants that by September 30, 1999, any
custom-made software or hardware designed or purchased or licensed by the
Special Servicer and used by the Special Servicer in the course of the operation
or management of, or the compiling, reporting or generation of data required by
this Agreement will not contain any material deficiency (x) in the ability of
such software or hardware to identify correctly or perform calculations or other
processing with respect to dates after September 30, 1999 or (y) that would
cause such software or hardware to be fit no longer for the purpose for which it
was intended by reason of the changing of the date from 1999 to 2000. The
foregoing matters extend and relate only to the internal functioning of the
software and hardware maintained by the Special Servicer, and the Special
Servicer shall not be responsible for the accuracy or integrity of any data or
calculations provided to the Special Servicer by any third party. A breach of
the covenant set forth in this Section 2.07(d) shall constitute an Event of
Default pursuant to Section 7.01(a)(vi) and such Event of Default shall be
subject to the remedies set forth in Article VII.
SECTION 2.08 Representations and Warranties of the Trustee and the
REMIC Administrator.
(a) LaSalle National Bank, both in its capacity as Trustee and in
its capacity as REMIC Administrator (the "Bank"), hereby represents and warrants
to the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Bank is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
and is, shall be or, if necessary, shall appoint a co-trustee that is, in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to perform its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by the Bank, and
the performance and compliance with the terms of this Agreement by the
Bank, do not violate the Bank's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, which default, in the Bank's good
faith and reasonable judgment, is likely to materially and adversely
affect the ability of the Bank to perform its obligations under this
Agreement.
(iii) The Bank has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Bank, enforceable against the Bank in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Bank's good faith and reasonable judgment, is likely to
affect materially and adversely the ability of the Bank to perform its
obligations under this Agreement.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank which would prohibit the Bank from
entering into this Agreement or, in the Bank's good faith and reasonable
judgment, is likely to materially and adversely affect the ability of the
Bank to perform its obligations under this Agreement.
(vii) All consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for
the execution, delivery and performance of this Agreement by the Trustee
have been obtained or made.
(b) The representations and warranties of the Bank set forth in
Section 2.08(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
(d) The Bank represents that it will use reasonable commercial
efforts to cure (by August 1999) any deficiencies with regards to the
manipulation or calculation of dates beyond December 31, 1999 in the internally
maintained computer software systems used by the Bank in the conduct of its
trust business which would materially and adversely affect its ability to
perform its obligations under this agreement. The Bank further represents that
it will use reasonable commercial efforts to obtain reasonable assurances from
each third party vendor of licensed computer software systems used by the Bank
in the conduct of its trust business that such vendors shall use reasonable
commercial efforts to cure any deficiencies with regards to the manipulation or
calculation of dates beyond December 31, 1999 in such systems which would
materially and adversely affect the ability of the Bank to perform its
obligations under this agreement.
SECTION 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder and the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, the Class R-I Certificates in authorized denominations. The interests
evidenced by the Class R-I Certificates, together with the REMIC I Regular
Interests, constitute the entire beneficial ownership of REMIC I. The rights of
the Class R-I Certificateholders and REMIC II to receive distributions from the
proceeds of REMIC I in respect of the Class R-I Certificates and the REMIC I
Regular Interests, respectively, and all ownership interests of the Class R-I
Certificateholders and REMIC II in and to such distributions, shall be as set
forth in this Agreement.
SECTION 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the REMIC II
Certificates. The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC II
Certificates.
SECTION 2.11 Issuance of the REMIC II Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of the Depositor,
the Trustee has executed, authenticated and delivered to or upon the order of
the Depositor, the REMIC II Certificates in authorized denominations evidencing
the entire beneficial ownership of REMIC II. The rights of the respective
Classes of Holders of the REMIC II Certificates to receive distributions from
the proceeds of REMIC II in respect of their REMIC II Certificates, and all
ownership interests of the respective Classes of Holders of the REMIC II
Certificates in and to such distributions, shall be as set forth in this
Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that it is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, and in the best
interests and for the benefit of the Certificateholders, in accordance with any
and all applicable laws and the terms of this Agreement, the Insurance Policies
and the respective Mortgage Loans and, to the extent consistent with the
foregoing, in accordance with the Servicing Standard. Without limiting the
foregoing, and subject to Section 3.21, (i) the Master Servicer shall service
and administer all Mortgage Loans as to which no Servicing Transfer Event has
occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall
service and administer (x) each Mortgage Loan (other than a Corrected Mortgage
Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO
Property; provided, however, that the Master Servicer shall continue to collect
information and prepare all reports to the Trustee required hereunder with
respect to any Specially Serviced Mortgage Loans and REO Properties (and the
related REO Loans), and further to render such incidental services with respect
to any Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein.
(b) Subject to Section 3.01(a) and the terms and provisions of this
Agreement, the Master Servicer and the Special Servicer each shall have full
power and authority, acting alone, to do or cause to be done any and all things
in connection with such servicing and administration which it may deem necessary
or desirable. Without limiting the generality of the foregoing, each of the
Master Servicer and the Special Servicer, in its own name, with respect to each
of the Mortgage Loans it is obligated to service hereunder, is hereby authorized
and empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them: (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) in accordance with the Servicing Standard and subject to Sections 3.08 and
3.20, any and all modifications, waivers, amendments or consents to or with
respect to any documents contained in the related Mortgage File; and (iii) any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments. Subject to
Section 3.10, the Trustee shall, at the written request of a Servicing Officer
of the Master Servicer or the Special Servicer, furnish, or cause to be so
furnished, to the Master Servicer and the Special Servicer, as the case may be,
any limited powers of attorney and other documents necessary or appropriate to
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
(c) The relationship of each of the Master Servicer and Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(d) In the event that any two or more Mortgage Loans are
cross-collateralized with each other, the Master Servicer or Special Servicer,
as applicable, in accordance with the terms of this Agreement, shall service and
administer such Mortgage Loans as a single Mortgage Loan as and when it deems
necessary and appropriate, consistent with the Servicing Standard. If any
Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan,
then each other Mortgage Loan that is cross-collateralized with it shall also
become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized
Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and
until all Servicing Transfer Events in respect of each other Mortgage Loan that
is cross-collateralized with it, are remediated or otherwise addressed as
contemplated in the definition of "Specially Serviced Mortgage Loan".
(e) Notwithstanding anything herein to the contrary, the Master
Servicer only (and not the Special Servicer, notwithstanding that the Blue Cross
Loan may have become a Specially Serviced Mortgage Loan) shall service the Blue
Cross Participation Interest in accordance with the Blue Cross Participation
Agreement, and in connection therewith, the Master Servicer shall (i) receive
the payments due and payable with respect to the Blue Cross Participation
Interest and deposit such payments into the Certificate Account in accordance
with Section 3.04 of this Agreement, (ii) enforce the Blue Cross Participation
Agreement and all other documentation with respect thereto in accordance with
the Blue Cross Participation Agreement and this Agreement; (iii) in the event
the servicer under the Other Agreement is not the Master Servicer hereunder,
obtain an Appraisal pursuant to Section 3.19(b) for the purpose of calculating
the Appraisal Reduction Amount and (iv) take such other actions with respect
thereto as shall be required in accordance with the Servicing Standard and this
Agreement, including without limitation, making P&I Advances (but not Servicing
Advances, which shall be the obligation of the servicer under the Other
Agreement) with respect to the Trust Fund's Blue Cross Participation Interest in
the Blue Cross Loan as evidenced by the Blue Cross Participation Agreement to
the extent and in the manner provided herein with respect to the making of P&I
Advances for other Credit Lease Loans. The Master Servicer shall pay as an
expense of the Trust Fund the Blue Cross Participant's share of fees, expenses
and advances as required under the Blue Cross Participation Agreement.
SECTION 3.02 Collection of Mortgage Loan Payments; Rent Escrow
Account.
(a) Each of the Master Servicer and the Special Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder, and
shall, to the extent such procedures shall be consistent with this Agreement
(including without limitation, the Servicing Standard), follow such collection
procedures as it would follow were it the owner of such Mortgage Loans;
provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Master Servicer or the Special Servicer of
the collectability of the Mortgage Loans. Consistent with the foregoing, the
Master Servicer or the Special Servicer each may waive any Default Charges in
connection with any specific delinquent payment on a Mortgage Loan it is
obligated to service hereunder.
Ninety (90) days prior to the maturity date of each Balloon Mortgage
Loan, the Master Servicer shall send a notice to the related Mortgagor of such
maturity date (with a copy to be sent to the Special Servicer) and shall request
confirmation that the Balloon Payment will be paid by such date.
In connection with its respective servicing activities hereunder
relating to each Credit Lease Loan, and to the extent consistent with the
related Mortgage Loan documents, applicable law and the related Credit Lease,
the Master Servicer or the Special Servicer, as applicable, shall use its best
efforts consistent with the Servicing Standard to collect all payments due to
any Mortgagor, as lessor, under any Credit Lease, including to (i) collect
Monthly Lease Payments and all other amounts due and owing under the related
Credit Lease, (ii) collect income statements and other reports from the related
Tenant as required by the related Credit Lease, and (iii) enforce all other
duties, obligations and covenants of the related Tenant under the related Credit
Lease.
(b) The Master Servicer shall establish and maintain the Rent Escrow
Account (which Rent Escrow Account may be a single account or separate accounts
relating to each Mortgagor or Credit Lease Loan) which account shall be used
solely for collection by the Master Servicer and Special Servicer of the Monthly
Lease Payments from each related Tenant. The Master Servicer shall deposit or
cause to be deposited in the Rent Escrow Account, within one Business Day
following receipt, all Monthly Lease Payments. In the event that the Rent Escrow
Account is established as a single account, the Master Servicer shall keep and
maintain separate accounting, on a loan-by-loan basis, for the purpose of
tracking each deposit in and withdrawal from the Rent Escrow Account.
(c) With respect to each Credit Lease Loan, any funds on deposit in
the Rent Escrow Account shall, on the Rent Escrow Transfer Date, be transferred
(the order set forth herein constituting an order of priority for such
transfers) to:
(i) the Certificate Account (in an amount equal to the related
Monthly Loan Payments, net of the Servicer Reserve Amounts), in
accordance with Section 3.04;
(ii) the Expense Reserve Fund (in an amount equal to the Servicer
Reserve Amounts) in accordance with Section 3.27;
(iii) the Borrower Reserve Fund (in an amount equal to the related
Escrow Payments) as required under Section 3.03A (in the event of an
event of default under any of the related Mortgage Loan documents in
connection with any Credit Lease Loan (as to which the Master Servicer
has actual knowledge), to the extent not inconsistent with such Mortgage
Loan documents, such amount shall include the remaining amount
attributable to such Credit Lease Loan in the Rent Escrow Account, other
than reinvestment income payable to the Master Servicer as described
below, such that no funds are returned to the Mortgagor so long as such
an event of default exists with regard to such Credit Lease Loan); and
(iv) the balance (such amount, the "Excess Balance") to the
Mortgagor in accordance with this Section 3.02(c).
To the extent that funds on deposit in the Rent Escrow Account for
any Credit Lease Loan are available pursuant to the terms of the related
Mortgage Loan documents to fund deficiencies or delinquencies with respect to
such Credit Lease Loan, the Master Servicer shall, to the extent of funds
available therefor, fund such deficiencies or delinquencies from amounts on
deposit in the Rent Escrow Account. All transfers from the Rent Escrow Account
to the Certificate Account, the Borrower Reserve Fund or any other account
pursuant to this Section 3.02(c) shall be made on a loan-by-loan basis and no
amounts held in the Rent Escrow Account shall be applied to the payment of any
amounts due for any other Credit Lease Loan. On each Rent Escrow Transfer Date,
the Master Servicer shall, pursuant to (iii) above, remit the Excess Balance
(except for any income or gain realized from the investment of funds therein for
the benefit of the Master Servicer pursuant to Section 3.06, which may be
withdrawn by the Master Servicer from time to time from the Rent Escrow Account)
to the related Borrower by wire transfer or by check mailed not later than three
Business Days following the related Rent Escrow Transfer Date. Notwithstanding
anything herein to the contrary, in no event shall the Master Servicer pay any
portion of the Excess Balance held on account of a specific Credit Lease Loan to
the related Mortgagor unless the related Monthly Loan Payment and Escrow Payment
have been paid in full and all accounts required to be maintained with respect
to such Credit Lease Loan have been funded to their required levels except as
otherwise required under the related Mortgage Loan documents. In the event that
the Master Servicer deposits in the Rent Escrow Account any amount not required
to be deposited therein, the Master Servicer may at any time withdraw such
amount from the Rent Escrow Account, any provision herein to the contrary
notwithstanding.
In the event that funds on deposit in the Rent Escrow Account relate
to a Credit Lease Loan which has been sold or ownership of such Credit Lease
Loan has otherwise been transferred to a Person other than the Trust Fund, all
amounts which are not required to be remitted to the Trust Fund in accordance
with the related Mortgage Loan documents shall be promptly remitted by the
Master Servicer to or upon the direction of the owner of such Credit Lease Loan.
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts.
(a) The Master Servicer shall, as to all the NationsBank Mortgage
Loans, establish and maintain one or more accounts (the "Servicing Accounts"),
into which all Escrow Payments shall be deposited and retained. In addition, the
Master Servicer shall, with respect to the Credit Lease Loans, establish and
maintain the Borrower Reserve Fund in accordance with Section 3.03A. Subject to
any terms of the related Mortgage Loan documents that specify the nature of the
account in which Escrow Payments shall be held, each Servicing Account shall be
an Eligible Account. Withdrawals of amounts so collected in respect of any
Mortgage Loan (and interest earned thereon) from a Servicing Account may be made
only: (i) to effect payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and comparable items in respect of
related Mortgaged Property; (ii) to reimburse the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, for any unreimbursed
Servicing Advances made thereby to cover any of the items described in the
immediately preceding clause (i); (iii) to refund to the related Mortgagor any
sums as may be determined to be overages; (iv) to pay interest, if required and
as described below, to the related Mortgagor on balances in the Servicing
Account (or, if and to the extent not payable to the related Mortgagor, to pay
such interest to the Master Servicer); or (v) to clear and terminate the
Servicing Account at the termination of this Agreement in accordance with
Section 9.01. The Master Servicer shall pay or cause to be paid to the
Mortgagors interest, if any, earned on the investment of funds in Servicing
Accounts maintained thereby, if required by law or the terms of the related
Mortgage Loan. If the Master Servicer shall deposit in a Servicing Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from such Servicing Account, any provision herein to the contrary
notwithstanding. The Special Servicer shall promptly deliver all Escrow Payments
received by it to the Master Servicer for deposit in the applicable Servicing
Account.
(b) The Master Servicer shall (with the cooperation of the Special
Servicer in the case of Specially Serviced Mortgage Loans), (i) maintain
accurate records with respect to each Mortgaged Property reflecting the status
of real estate taxes, assessments and other similar items that are or may become
a lien thereon and the status of insurance premiums and any ground rents payable
in respect thereof, (ii) use reasonable efforts to obtain, from time to time,
all bills for the payment of such items (including renewal premiums) and shall
effect payment thereof prior to the applicable penalty or termination date and
(iii) with respect to the Credit Lease Loans, maintain the status of Borrower
Credit Lease Obligations (as to which the Master Servicer has actual knowledge)
including, without limitation, repair, replacement and common area maintenance
requirements. For purposes of effecting any such payment, the Master Servicer
shall apply Escrow Payments as allowed under the terms of the related Mortgage
Loan or, if such Mortgage Loan does not require the related Mortgagor to escrow
for the payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and similar items, each of the Master Servicer and the
Special Servicer shall, as to those Mortgage Loans it is obligated to service
hereunder and subject to the Servicing Standard, enforce the requirement of the
related Mortgage that the Mortgagor make payments in respect of such items at
the time they first become due.
(c) In accordance with the Servicing Standard, the Master Servicer
shall, as to all the Mortgage Loans (but at the direction of the Special
Servicer in the case of Specially Serviced Mortgage Loans), make a Servicing
Advance with respect to the related Mortgaged Property of all such funds as are
necessary for the purpose of effecting the payment of (i) real estate taxes,
assessments and other similar items, (ii) ground rents or other rents (if
applicable), and (iii) premiums on Insurance Policies, in each instance if and
to the extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis, and provided that the particular advance would
not, if made, constitute a Nonrecoverable Servicing Advance (any determination
that such advance would be a Nonrecoverable Servicing Advance shall be made in
accordance with Section 3.11(g)). In making any such Servicing Advance with
respect to a Credit Lease Loan, the Master Servicer shall use, but is not
limited by, amounts on deposit in the Expense Reserve Fund to the extent
provided for in Section 3.27. All such advances shall be reimbursable in the
first instance from related collections from the Mortgagors and further as
provided in Section 3.05(a) and with respect to Credit Lease Loans, to the
extent provided for in Section 3.27. No costs incurred by the Master Servicer or
the Special Servicer in effecting the payment of real estate taxes, assessments
and similar items and, if applicable, ground rents on or in respect of such
Mortgaged Properties shall, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balances of the related Mortgage Loans, notwithstanding that the terms
of such Mortgage Loans so permit.
(d) The Master Servicer shall, as to all the NationsBank Mortgage
Loans, establish and maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into which all Reserve Funds, if any, shall be deposited and
retained. In addition, the Master Servicer shall, with respect to the Credit
Lease Loans, establish and maintain the Expense Reserve Fund in accordance with
Section 3.27. Withdrawals of amounts so deposited may be made to pay for or
otherwise cover, or (if appropriate) to reimburse the related Mortgagor in
connection with, the specific items for which such Reserve Funds were escrowed,
all in accordance with the Servicing Standard and the terms of the related
Mortgage Note, Mortgage and any agreement with the related Mortgagor governing
such Reserve Funds. Subject to the terms of the related Mortgage Note and
Mortgage, all Reserve Accounts shall be Eligible Accounts. The Special Servicer
shall promptly deliver all Reserve Funds received by it to the Master Servicer
for deposit in the applicable Reserve Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Mortgage Loan, the Master Servicer shall
request from the Mortgagor written confirmation of such actions and remediations
within a reasonable time after the later of the Closing Date and the date as of
which such action or remediations are required by the related mortgage loan
documents to be or to have been taken or completed. To the extent a Mortgagor
shall fail to promptly respond to any inquiry described in this Section 3.03(e),
the Master Servicer shall determine whether the related Mortgagor has failed to
perform its obligations under the related Mortgage Loan and report any such
failure to the Special Servicer within a reasonable time after the date as of
which such actions or remediations are required to be or to have been taken or
completed.
XXXXXXX 0.00X Xxxxxxxx Xxxxxxx Xxxx .
(x) The Master Servicer shall segregate and hold all funds collected
and received pursuant to any Credit Lease Loan constituting Escrow Payments
under the related Credit Lease Loan separate and apart from any of its own funds
and general assets and shall establish and maintain one or more segregated
custodial accounts (each, a "Borrower Reserve Fund"). The Borrower Reserve Fund
shall be an Eligible Account (to the extent consistent with the related Mortgage
Loan documents) and shall be entitled, "Midland Loan Services, Inc., as Master
Servicer, in trust for LaSalle National Bank, as Trustee, in trust for Holders
of NationsLink Funding Corporation Commercial Mortgage Pass-Through
Certificates, Series 1999-LTL-1, and Various Borrowers." The Master Servicer
shall deposit or cause to be deposited in the Borrower Reserve Fund within one
Business Day following receipt (except with respect to item (i) below, in which
case the deposit shall be made on the Rent Escrow Transfer Date pursuant to
Section 3.02(c)) the following payments and collections received or made by it
with respect to the Credit Lease Loans:
(i) to the extent of funds available therefor in the Rent Escrow
Account and respecting each Credit Lease Loan the related
Escrow Payment;
(ii) any Insurance Proceeds or Condemnation Proceeds, which are
required to be applied to the restoration or repair of the
related Mortgaged Property pursuant to the related Mortgage
Loan documents; and
(iii)any amounts representing losses on Permitted Investments in
which amounts on deposit in such Borrower Reserve Fund have
been invested pursuant to Section 3.06.
(b) The Master Servicer shall apply funds in the Borrower Reserve
Fund for any Credit Lease Loan in accordance with the terms of the Mortgage Loan
documents and the Servicing Standard and, consistent therewith, shall make
withdrawals from the Borrower Reserve Fund only (the following items not
representing an order of priority):
(i) to effect timely payments of items with respect to which
Escrow Payments are required pursuant to the related
Mortgage Loan documents;
(ii) to transfer funds to the Certificate Account to reimburse
the Master Servicer, the Trustee or the Fiscal Agent, as
applicable, for any Servicing Advance;
(iii)for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage
Loan documents and the Servicing Standard;
(iv) to release funds relating to a particular Credit Lease Loan
to, or upon the direction of, the related Mortgagor as
required under the terms of such Credit Lease Loan or to
clear and terminate such Borrower Reserve Fund upon the
termination of this Agreement;
(v) to pay from time to time to the Master Servicer any Net
Investment Earnings earned on funds deposited in such
Borrower Reserve Fund pursuant to Section 3.06 to the extent
(a) permitted by applicable law and (b) not required to be
paid to the related Mortgagor under the terms of the related
Credit Lease Loan or by applicable law, or to pay such
interest or income to the related Mortgagor if such income
is required to paid to the related Mortgagor under
applicable law or by the terms of the related Credit Lease
Loan; and
(vi) to remove any funds deposited in such Borrower Reserve Fund
that were not required to be deposited therein or that are
required under the terms of the applicable Mortgage Loan
documents or applicable law to be returned to the Mortgagor.
SECTION 3.04 Certificate Account, the Distribution Account and the
REMIC II Distribution Account.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Certificate
Account shall be an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Certificate Account, within two Business Days of receipt
(in the case of payments by Mortgagors or other collections on or in respect of
the NationsBank Mortgage Loans), or on the Rent Escrow Transfer Date pursuant to
Section 3.02(c) (in the case of item (i)(x) below), or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of it subsequent to the Cut-off Date (other than in respect of principal,
interest and any other amounts due and payable on the Mortgage Loans on or
before the Cut-off Date, which payments shall be delivered promptly to the
respective Mortgage Loan Seller or its designee, with negotiable instruments
endorsed as necessary and appropriate without recourse):
(i) (x) to the extent of funds available therefor in the Rent Escrow
Account and in respect of each Credit Lease Loan, the Monthly Loan
Payment (net of the Servicer Reserve Amount) that is due and owing
pursuant to any Mortgage Loan document on the related Due Date, and (y)
all other payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) in addition to any payments of interest under item (i)(x)
above, all other payments on account of interest at the respective
Mortgage Rates on the Mortgage Loans and all Prepayment Premiums received
in respect of the Mortgage Loans;
(iii) to the extent allocable to the period that any Mortgage Loan
is a Specially Serviced Mortgage Loan, all payments on account of Default
Charges on such Mortgage Loan, and all payments on account of Default
Interest in respect of each Credit Lease Loan;
(iv) all Insurance Proceeds and Liquidation Proceeds (net of all
related Liquidation Expenses paid therefrom) received in respect of any
Mortgage Loan (other than Liquidation Proceeds that are received in
connection with a purchase by the Master Servicer or a Majority
Certificateholder of the Controlling Class of all of the Mortgage Loans
and any REO Properties in the Trust Fund and that are required to be
deposited in the Distribution Account pursuant to Section 9.01);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with
losses resulting from a deductible clause in a blanket or master single
interest policy;
(vii) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c); and
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive. Without limiting the generality of the foregoing, (A) actual
payments from Mortgagors in the nature of Escrow Payments, and amounts that the
Master Servicer and the Special Servicer are entitled to retain as additional
servicing compensation pursuant to Section 3.11(b) and Section 3.11(d),
respectively, need not be deposited by the Master Servicer in the Certificate
Account and (B) with respect to any amount representing a sub-servicing fee
(including, without limitation, a Primary Servicing Fee, if applicable) that
otherwise would be required to be deposited by the Master Servicer in the
Certificate Account and that, once so deposited, would have been permitted to be
withdrawn immediately from the Certificate Account pursuant to Section 3.05 as
part of the payment of the Master Servicing Fee, such amount shall be deemed to
have been deposited to and withdrawn from the Certificate Account for such
purpose to the extent that such sum has been retained by the Sub-Servicer
pursuant to the related Sub-Servicing Agreement. If the Master Servicer shall
deposit in the Certificate Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Certificate Account,
any provision herein to the contrary notwithstanding. The Master Servicer shall
promptly deliver to the Special Servicer, as additional special servicing
compensation in accordance with Section 3.11(d), assumption fees, modification
fees, Net Default Charges, charges for beneficiary statements or demands and
similar fees (excluding Prepayment Premiums) received by the Master Servicer
with respect to Specially Serviced Mortgage Loans. The Certificate Account shall
be maintained as a segregated account, separate and apart from trust funds
created for mortgage pass-through certificates of other series serviced and the
other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) above with respect to any Mortgage Loan, the Special Servicer shall
promptly, but in no event later than two Business Days after receipt, remit such
amounts to the Master Servicer for deposit into the Certificate Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement or other
appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property shall be deposited by the Special Servicer into the
REO Account and remitted to the Master Servicer for deposit into the Certificate
Account pursuant to Section 3.16(c). With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
such check to the order of the Master Servicer and shall deliver promptly, but
in no event later than two Business Days after receipt, any such check to the
Master Servicer by overnight courier, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason.
(b) The Trustee shall establish and maintain one or more accounts or
sub-accounts (collectively, the "Distribution Account") to be held in trust for
the benefit of the Trustee as holder of the REMIC I Regular Interests and the
Certificateholders. The Distribution Account shall be an Eligible Account. On
each Master Servicer Remittance Date, the Master Servicer shall deliver to the
Trustee, for deposit in the Distribution Account, an aggregate amount of
immediately available funds equal to the Master Servicer Remittance Amount for
such Master Servicer Remittance Date. If, at 1:00 p.m., New York City time, on
any Master Servicer Remittance Date, the Trustee has not received the Master
Servicer Remittance Amount as notified to it by the Master Servicer on the third
Business Day immediately preceding the related Distribution Date pursuant to
Section 4.02(b), the Trustee shall provide notice to the Master Servicer in the
same manner as required by Section 4.03(a) hereof with respect to P&I Advances.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(e) in connection with Prepayment Interest
Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or a
Majority Certificateholder of the Controlling Class in connection with
the purchase of all of the Mortgage Loans and any REO Properties pursuant
to Section 9.01, exclusive of the portion of such Liquidation Proceeds
required to be deposited in the Certificate Account pursuant to
Section 9.01.
The Trustee shall, upon receipt, deposit in the Distribution Account
any and all amounts received or advanced by the Trustee that are required
by the terms of this Agreement to be deposited therein.
(c) The Trustee shall establish and maintain the REMIC II
Distribution Account in the name of the Trustee, in trust for the benefit of the
Certificateholders (other than the Class R-I Certificateholders). The REMIC II
Distribution Account shall be established and maintained as an Eligible Account.
With respect to each Distribution Date, the Trustee shall withdraw from the
Distribution Account and deposit in the REMIC II Distribution Account on or
before such date the amount of the Available Distribution Amount (including P&I
Advances) and Prepayment Premiums to be distributed in respect of the REMIC I
Regular Interests pursuant to Section 4.01(a)(i) and Section 4.01(d)(ii) hereof
on such date.
(d) Funds in the Certificate Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall give notice to the other parties hereto of the location of the
Certificate Account as of the Closing Date and of the new location of the
Certificate Account prior to any change thereof. The Distribution Account and
the REMIC II Distribution Account shall be established at the Corporate Trust
Office of the Trustee as of the Closing Date, and the Trustee shall give notice
to the other parties hereto of the new location of the Distribution Account
prior to any change thereof.
SECTION 3.05 Permitted Withdrawals From the Certificate Account and
the Distribution Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the Master Servicer Remittance Amount for, and, to the extent permitted
or required by Section 4.03(a), any P&I Advances to be made on, each
Master Servicer Remittance Date;
(ii) to reimburse the Fiscal Agent, the Trustee, the Master Servicer
or the Expense Reserve Fund, as applicable, in that order, for
xxxxxxxxxxxx X&X Advances made thereby in respect of any Mortgage Loan or
REO Loan, the Fiscal Agent's, the Trustee's, the Master Servicer's and
the Expense Reserve Fund's respective rights to reimbursement pursuant to
this clause (ii) with respect to any P&I Advance being payable from, and
limited to, amounts that represent Late Collections of interest and
principal (net of related Master Servicing Fees, Workout Fees and/or
Liquidation Fees payable therefrom) received in respect of the particular
Mortgage Loan or REO Loan as to which such P&I Advance was made;
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan, the Master
Servicer's right to payment pursuant to this clause (iii) with respect to
any Mortgage Loan or REO Loan being payable from, and limited to, amounts
received on or in respect of such Mortgage Loan (whether in the form of
payments, Liquidation Proceeds or Insurance Proceeds) or such REO Loan
(whether in the form of REO Revenues, Liquidation Proceeds or Insurance
Proceeds) that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan and
REO Loan;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by Section 3.11(c);
(vi) to reimburse the Fiscal Agent, the Trustee, the Special
Servicer, the Master Servicer or the Expense Reserve Fund, as applicable,
in that order, for any unreimbursed Servicing Advances made thereby with
respect to any Mortgage Loan or REO Property, the Fiscal Agent's, the
Trustee's, the Special Servicer's, the Master Servicer's and the Expense
Reserve Fund's respective rights to reimbursement pursuant to this
clause (vi) with respect to any Servicing Advance being payable from, and
limited to, (A) payments made by the related Mortgagor (to include
deposits into the Expense Reserve Fund, in the case of a Credit Lease
Loan) that are allocable to cover the item in respect of which such
Servicing Advance was made, and (B) Liquidation Proceeds (net of
Liquidation Fees payable therefrom), Insurance Proceeds and, if
applicable, REO Revenues received in respect of the particular Mortgage
Loan or REO Property as to which such Servicing Advance was made;
(vii) to reimburse the Fiscal Agent, the Trustee, the Special
Servicer, the Master Servicer or the Expense Reserve Fund, as applicable,
in that order, out of general collections on the Mortgage Loans and any
REO Properties, for any unreimbursed Advances made thereby with respect
to any Mortgage Loan, REO Loan or REO Property that have been determined
to be Nonrecoverable Advances;
(viii) to pay the Fiscal Agent, the Trustee, the Special Servicer,
the Master Servicer or the Expense Reserve Fund, as applicable, in that
order, any Advance Interest due and owing thereto, the Fiscal Agent's,
the Trustee's, the Special Servicer's, the Master Servicer's and the
Expense Reserve Fund's respective rights to payment pursuant to this
clause (viii) being payable from, and limited to, Default Charges
collected in respect of the Mortgage Loan or REO Loan as to which the
related Advances were made (but only to the extent allocable to the
period when such Mortgage Loan was a Specially Serviced Mortgage Loan, an
REO Loan or to the extent of Default Interest collected in respect of any
Credit Lease Loan);
(ix) at or following such time as the Master Servicer reimburses
itself, the Expense Reserve Fund, the Special Servicer, the Trustee or
the Fiscal Agent, as applicable, for any unreimbursed Advance pursuant to
clause (ii), (vi) or (vii) above or Section 3.03, and insofar as payment
has not already been made pursuant to clause (viii) above, to pay the
Fiscal Agent, the Trustee, the Special Servicer, the Master Servicer or
the Expense Reserve Fund, as the case may be, and in that order, out of
general collections on the Mortgage Loans and any REO Properties, any
related Advance Interest accrued and payable on such Advance;
(x) to pay the Master Servicer, as additional servicing compensation
in accordance with Sections 3.06(b) and 3.11(b), any Net Investment
Earnings in respect of amounts held in the Certificate Account for any
Collection Period;
(xi) to pay the Master Servicer, as additional servicing
compensation in accordance with Section 3.11(b), any Prepayment Interest
Excesses and, to the extent not allocable to the period that any Mortgage
Loan is a Specially Serviced Mortgage Loan or an REO Loan, any Default
Charges collected on the Mortgage Loans (excluding any Default Interest
collected in respect of any Credit Lease Loan), and to pay the Special
Servicer, as additional servicing compensation in accordance with
Section 3.11(d), any Net Default Charges collected on any Mortgage Loan
to the extent allocable to the period that such Mortgage Loan is a
Specially Serviced Mortgage Loan or an REO Loan;
(xii) to reimburse, out of general collections on the Mortgage Loans
and any REO Properties, the Master Servicer, the Special Servicer, the
REMIC Administrator, the Depositor, or any of their respective directors,
officers, employees and agents any amounts reimbursable to any such
Person pursuant to Section 6.03, or to pay directly to any third party
any amount which if paid by any such Person would be reimbursable thereto
pursuant to Section 6.03;
(xiii) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for (A) the reasonable costs of the advice of counsel
contemplated by Section 3.17(a), (B) the reasonable costs of the Opinions
of Counsel contemplated by Sections 3.09(b)(ii) and 3.16(a), (C) the
reasonable costs of Appraisals obtained pursuant to Section 3.11(g) or
4.03(c), (D) the reasonable costs of obtaining any REO Extension sought
by the Special Servicer as contemplated by Section 3.16(a) and (E) the
cost of recording this Agreement in accordance with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the Majority
Certificateholder of the Controlling Class, the Mortgage Loan Sellers, or
any other Person, as the case may be, with respect to each Mortgage Loan,
if any, previously purchased by such Person pursuant to this Agreement,
all amounts received thereon subsequent to the date of purchase;
(xv) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable
or reimbursable to any such Person pursuant to Section 8.05(b) and
Section 8.13;
(xvi) to pay any costs and expenses contemplated in Section 3.11(h),
the last sentence of Section 7.02 and the last sentence of
Section 8.08(a);
(xvii) to pay to the "Servicer" (as defined in the Blue Cross
Participation Agreement) the fees and expenses required to be paid by the
Blue Cross Participant under the terms and provisions of the Blue Cross
Participation Agreement; and
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any particular
time (after withdrawing any portion of such amounts deposited in the Certificate
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xvi)
above, then the corresponding withdrawals from the Certificate Account shall be
made in the following priority and subject to the following rules: (A) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
provided that where, as in clauses (ii), (vi) and (vii), an order of priority is
set forth to govern the application of funds withdrawn from the Certificate
Account pursuant to such clauses, payments, reimbursements or remittances
pursuant to any such clause shall be made in such order of priority to the
extent of available funds; and (B) if the payment, reimbursement or remittance
can be made from any funds on deposit in the Certificate Account, then
(following any withdrawals made from the Certificate Account in accordance with
the immediately preceding clause (A) above) such payment, reimbursement or
remittance shall be made from such general funds remaining on a pro rata basis
with any and all other payments, reimbursements or remittances to be made from
such general funds; provided that where, as in clauses (viii) and (ix), an order
of priority is set forth to govern the application of funds withdrawn from the
Certificate Account pursuant to such clauses, payments, reimbursements or
remittances pursuant to any such clause shall be made in such order of priority
to the extent of available funds.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Certificate Account pursuant to
clauses (ii) through (xviii) above.
The Master Servicer shall (not more frequently than once a month,
except for emergency situations) pay to the Special Servicer from the
Certificate Account amounts permitted to be paid to it therefrom promptly upon
receipt of a certificate of a Servicing Officer of the Special Servicer
describing the item and amount to which the Special Servicer is entitled. The
Master Servicer may rely conclusively on any such certificate and shall have no
duty to re-calculate the amounts stated therein. The Special Servicer shall keep
and maintain separate accounting for each Specially Serviced Mortgage Loan and
REO Property, on a loan-by-loan and property-by-property basis, for the purpose
of justifying any request for withdrawal from the Certificate Account.
(b) The Trustee may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) as contemplated by Section 3.04(c), to deposit into the REMIC II
Distribution Account on or before the related Distribution Date the
Available Distribution Amount and Prepayment Premiums to be distributed
in respect of the REMIC I Regular Interests;
(ii) to pay the Trustee accrued and unpaid Trustee Fees pursuant to
Section 8.05(a), and to reimburse the Trustee for any other amounts to
which it is entitled to be reimbursed from the Distribution Account
pursuant to this Agreement;
(iii) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable
or reimbursable to any such Person pursuant to Section 8.05(b);
(iv) as contemplated by Section 11.01(h), to pay for the reasonable
costs of the Opinions of Counsel sought by the Trustee as contemplated by
Section 11.01(a) or 11.01(d) in connection with any amendment to this
Agreement requested by the Trustee which amendment is in furtherance of
the rights and interests of Certificateholders;
(v) to pay for the reasonable costs of the Opinions of Counsel
sought by the Trustee as contemplated by Section 11.02(a);
(vi) to (A) pay any and all federal, state and local taxes imposed
on REMIC I or REMIC II or on the assets or transactions of either such
REMIC, together with all incidental costs and expenses, and any and all
reasonable expenses relating to tax audits, if and to the extent that
either (1) none of the Trustee, the Master Servicer, the Special Servicer
or the REMIC Administrator is liable therefor pursuant to
Section 10.01(d) and/or Section 10.01(h) or (2) any such Person that may
be so liable has failed to timely make the required payment, and
(B) reimburse the REMIC Administrator for reasonable expenses incurred by
and reimbursable to it by the Trust pursuant to Section 10.01(d) and/or
Section 10.01(g); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may make withdrawals from the REMIC II Distribution
Account for any of the following purposes: (i) to make distributions to
Certificateholders (other than Holders of the Class R-I Certificates) on each
Distribution Date pursuant to Section 4.01(b) or Section 9.01, as applicable;
and (ii) to clear and terminate the REMIC II Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
SECTION 3.06 Investment of Funds in the Investment Accounts.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account or (subject to applicable laws and the
related Mortgage Loan documents) the Reserve Accounts, the Borrower Reserve Fund
or the Rent Escrow Account and (subject further to Section 3.03 hereof) each
Servicing Account, and the Special Servicer may direct any depository
institution maintaining the REO Account, to invest, or if it is such depository
institution, may itself invest, the funds held therein (each such account, for
purposes of this Section 3.06, an "Investment Account") in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn from such
account pursuant to this Agreement. All such Permitted Investments shall be held
to maturity, unless payable on demand, in which case such investments may be
sold at any time. Any investment of funds in an Investment Account shall be made
in the name of the Trustee for the benefit of the Certificateholders (in its
capacity as such). The Master Servicer (with respect to Permitted Investments of
amounts in any Investment Account (other than the REO Account)) and the Special
Servicer (with respect to Permitted Investments of amounts in the REO Account),
on behalf of the Trustee for the benefit of the Certificateholders, shall (and
the Trustee hereby designates the Master Servicer and the Special Servicer, as
applicable, as the Person that shall) (i) be the "entitlement holder" of any
Permitted Investment that is a "security entitlement" and (ii) maintain
"control" of any Permitted Investment that is either a "certificated security"
or an "uncertificated security". For purposes of this Section 3.06(a), the terms
"entitlement holder", "security entitlement", "control", "certificated security"
and "uncertificated security" shall have the meanings given such terms in
Revised Article 8 (1994 Revision) of the UCC, and "control" of any Permitted
Investment by the Master Servicer or the Special Servicer shall constitute
"control" by a Person designated by, and acting on behalf of, the Trustee for
purposes of Revised Article 8 (1994 Revision) of the UCC. If amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Master Servicer (in the case of any Investment Account
(other than the REO Account)) or the Special Servicer (in the case of the REO
Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the case
may be, that such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the Investment
Account.
(b) Whether or not the Master Servicer directs the investment of
funds in the Certificate Account and (subject to applicable laws and the related
Mortgage Loan documents), to the extent the Master Servicer directs the
investment of funds deposited in any other Investment Account (other than the
REO Account), interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.05(a). Whether or not the Special Servicer directs
the investment of funds in the REO Account, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Investment Account for each Collection Period, shall
be for the sole and exclusive benefit of the Special Servicer and shall be
subject to its withdrawal in accordance with Section 3.16(b). If any loss shall
be incurred in respect of any Permitted Investment on deposit in any Investment
Account, the Master Servicer (in the case of any Investment Account (other than
the REO Account)) and the Special Servicer (in the case of the REO Account)
shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the end of the Collection Period during which such
loss was incurred, the amount of the Net Investment Loss, if any, for such
Collection Period. The Trustee shall have no liability whatsoever with respect
to any such losses, except to the extent that it is the obligor on any such
Permitted Investment.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment and the Master Servicer or the Special Servicer, as applicable, has
not taken such action, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% of the Voting
Rights allocated to any Class, shall take such action as may be appropriate to
enforce such payment or performance, including, without limitation, the
institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount and the Master
Servicer Remittance Amount, the amounts so invested (but not any interest earned
thereon) shall be deemed to remain on deposit in such Investment Account.
(e) Notwithstanding any provision in this Agreement or any other
agreement to the contrary, the Master Servicer may invest funds in the Expense
Reserve Fund in Permitted Investments selected by the Master Servicer in its
sole discretion in accordance with this Section 3.06; however, any investment
income and gain realized from the investment of funds in the Expense Reserve
Fund shall be added to the amounts on deposit therein and shall not be withdrawn
and paid as additional compensation or otherwise to any Person. In connection
with the investment of funds in the Expense Reserve Fund, the Master Servicer
shall not be required to make any deposits into such Expense Reserve Fund in the
event a loss is incurred with respect to the investment of funds therein in
Permitted Investments.
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) Each of the Master Servicer and the Special Servicer shall, as
to those Mortgage Loans it is obligated to service hereunder, use its best
efforts in accordance with the Servicing Standard to cause the related Mortgagor
to maintain (and, if the related Mortgagor is required by the terms of the
related Mortgage Loan and does not so maintain, the Master Servicer (even in the
case of Specially Serviced Mortgage Loans) shall itself maintain (subject to the
provisions of this Agreement regarding Nonrecoverable Advances, and further
subject to Section 3.11(h) hereof), to the extent the Trustee, as mortgagee on
behalf of the Certificateholders, has an insurable interest and to the extent
available at commercially reasonable rates) all insurance coverage as is
required under the related Mortgage (subject to applicable law); provided that
if any Mortgage permits the holder thereof to dictate to the Mortgagor the
insurance coverage to be maintained on such Mortgaged Property, the Master
Servicer or the Special Servicer, as appropriate, shall impose such insurance
requirements as are consistent with the Servicing Standard; provided further,
that with respect to the Mortgage Loan identified on the Mortgage Loan Schedule
as loan number 50072, (the "Broadway at the Beach Mortgage Loan"), pursuant to
the terms of the related Mortgage, each of the Master Servicer and the Special
Servicer shall use its best efforts in accordance with the Servicing Standard to
cause the related Mortgagor to maintain 12-month business interruption income
insurance. The Special Servicer shall cause to be maintained for each REO
Property, in each case with an insurer that possesses the Required Ratings at
the time such policy is purchased and to the extent available at commercially
reasonable rates, no less insurance coverage than was previously required of the
related Mortgagor under the related Mortgage and, if the related Mortgage did
not so require, hazard insurance, public liability insurance and business
interruption or rent loss insurance in such amounts as are consistent with the
Servicing Standard, and the Special Servicer shall be reimbursed for the premium
costs thereof as a Servicing Advance pursuant to and to the extent permitted
under Section 3.05(a). All such insurance policies shall contain a "standard"
mortgagee clause, with loss payable to the Master Servicer (in the case of
insurance maintained in respect of the Mortgaged Properties) or the Special
Servicer (in the case of insurance maintained in respect of REO Properties) on
behalf of the Trustee, shall be issued by an insurer authorized under applicable
law to issue such insurance, and, unless prohibited by the related Mortgage, may
contain a deductible clause (not in excess of a customary amount). Any amounts
collected by the Master Servicer or Special Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or REO Property or amounts to be released to the related
Mortgagor, in each case in accordance with the Servicing Standard) shall be
deposited in the Certificate Account, subject to withdrawal pursuant to
Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan,
or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the
case of amounts received in respect of an REO Property. Any cost incurred by the
Master Servicer or the Special Servicer, as applicable, in maintaining any such
insurance shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit.
(b) (i) If the Master Servicer or the Special Servicer shall obtain
and maintain a blanket policy insuring against hazard losses on any or all of
the Mortgaged Properties (in the case of the Master Servicer) or REO Properties
(in the case of the Special Servicer), then, to the extent such policy (i) is
obtained from a Qualified Insurer that possesses the Required Ratings, and
(ii) provides protection equivalent to the individual policies otherwise
required, the Master Servicer or the Special Servicer, as the case may be, shall
conclusively be deemed to have satisfied its obligation to cause hazard
insurance to be maintained on the Mortgaged Properties or REO Properties, as
applicable, so covered, and the premium costs thereof shall be, if and to the
extent they are specifically attributable either to a specific Mortgaged
Property during any period that the related Mortgagor has failed to maintain the
hazard insurance required under the related Mortgage Loan in respect of such
Mortgaged Property or to a specific REO Property, a Servicing Advance
reimbursable pursuant to and to the extent permitted under Section 3.05(a);
provided that, to the extent that such premium costs are attributable to
properties other than Mortgaged Properties and/or REO Properties or are
attributable to Mortgaged Properties as to which the hazard insurance required
under the related Mortgage Loan is being maintained, they shall be borne by the
Master Servicer or Special Servicer, as the case may be, without right of
reimbursement. Such a blanket policy may contain a deductible clause (not in
excess of a customary amount), in which case the Master Servicer or the Special
Servicer, as appropriate, shall, if there shall not have been maintained on the
related Mortgaged Property or REO Property, as applicable, a hazard insurance
policy complying with the requirements of Section 3.07(a), and there shall have
been one or more losses which would have been covered by such property specific
policy (taking into account any deductible clause that would have been permitted
therein), promptly deposit into the Certificate Account from its own funds
(without right of reimbursement) the amount of such losses up to the difference
between the amount of the deductible clause in such blanket policy and the
amount of any deductible clause that would have been permitted under such
property specific policy. The Master Servicer and the Special Servicer each
agree to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims under any such blanket policy maintained by it in a
timely fashion in accordance with the terms of such policy.
(ii) If the Master Servicer shall cause any Mortgaged Property or
the Special Servicer shall cause any REO Property to be covered by a
master single interest insurance policy naming the Master Servicer or the
Special Servicer, as applicable, on behalf of the Trustee as the loss
payee, then to the extent such policy (i) is obtained from a Qualified
Insurer that possesses the Required Ratings and (ii) provides protection
equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer, as applicable, shall conclusively be
deemed to have satisfied its obligation to cause such insurance to be
maintained on such Mortgaged Property (in the case of the Master
Servicer) or REO Property (in the case of the Special Servicer). If the
Master Servicer shall cause any Mortgaged Property as to which the
related Mortgagor has failed to maintain the required insurance coverage,
or the Special Servicer shall cause any REO Property, to be covered by
such master single interest insurance policy, then the incremental costs
of such insurance applicable to such Mortgaged Property or REO Property
(i.e., other than any minimum or standby premium payable for such policy
whether or not any Mortgaged Property or REO Property is covered thereby)
paid by the Master Servicer or the Special Servicer, as applicable, shall
constitute a Servicing Advance. The Master Servicer shall, consistent
with the Servicing Standard and the terms of the related Mortgage Loan
documents, pursue the related Mortgagor for the amount of such
incremental costs. All other costs associated with any such master single
interest insurance policy (including, without limitation, any minimum or
standby premium payable for such policy) shall be borne by the Master
Servicer or Special Servicer, as the case may be, without right of
reimbursement. Such master single interest insurance policy may contain a
deductible clause (not in excess of a customary amount), in which case
the Master Servicer or the Special Servicer, as applicable, shall, in the
event that there shall not have been maintained on the related Mortgaged
Property or REO Property, as the case may be, a policy otherwise
complying with the provisions of Section 3.07(a), and there shall have
been one or more losses which would have been covered by such property
specific policy had it been maintained, promptly deposit into the
Certificate Account from its own funds (without right of reimbursement)
the amount not otherwise payable under the master single interest policy
because of such deductible clause, to the extent that any such deductible
exceeds the deductible limitation that pertained to the related Mortgage
Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement keep in force with recognized
insurers that possess the Required Ratings a fidelity bond in such form and
amount as would permit it to be a qualified Xxxxxx Xxx or Xxxxxxx Mac
seller-servicer of multifamily mortgage loans. Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provision if an Affiliate thereof has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Master Servicer or the Special Servicer, as the case may be. Such fidelity bond
shall provide that it may not be canceled without 30 days' prior written notice
to the Trustee.
In addition, each of the Master Servicer and the Special Servicer
shall at all times during the term of this Agreement keep in force with
recognized insurers that possess the Required Ratings a policy or policies of
insurance covering loss occasioned by the errors and omissions of its officers
and employees in connection with its obligation to service the Mortgage Loans
for which it is responsible hereunder, which policy or policies shall be in such
form and amount as would permit it to be a qualified Xxxxxx Mae or Xxxxxxx Mac
seller-servicer of multifamily mortgage loans. Any such errors and omissions
policy, shall provide that it may not be canceled without 30 days' prior written
notice to the Trustee.
(d) All insurance coverage required to be maintained under this
Section 3.07 shall be obtained from Qualified Insurers.
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing.
(a) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or of a
controlling interest in the related Mortgagor; or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, each of
the Master Servicer and the Special Servicer shall, on behalf of the Trustee as
the mortgagee of record, as to those Mortgage Loans it is obligated to service
hereunder, exercise (or waive its right to exercise) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to
withhold its consent to any such sale or other transfer, in a manner consistent
with the Servicing Standard, but subject to Section 3.20(a)(iii); provided that,
notwithstanding anything to the contrary contained herein, neither the Master
Servicer nor the Special Servicer shall waive any right it has, or grant any
consent it is otherwise entitled to withhold, under any related "due-on-sale"
clause unless it first (1) shall have provided, at least five Business Days
prior to the granting of such waiver or consent, to the Directing
Certificateholder and, in the case of the Master Servicer, to the Special
Servicer written notice of the matter and a written explanation of the
surrounding circumstances, (2) upon request made within such five Business
Day-period, shall have discussed the matter with the Directing Certificateholder
and/or, in the case of the Master Servicer, with the Special Servicer and (3) if
the then-outstanding principal balance of the subject Mortgage Loan (together
with the then-outstanding aggregate principal balance of all other Mortgage
Loans to the same Mortgagor or to other Mortgagors that are, to the Master
Servicer's or Special Servicer's, as applicable, actual knowledge, Affiliates of
the Mortgagor under the subject Mortgage Loan) or any group of
Cross-Collateralized Mortgage Loans is more than 2% of the then-outstanding
aggregate principal balance of the Mortgage Pool, shall have obtained written
confirmation from each Rating Agency that such action shall not result in a
qualification, downgrade or withdrawal, as applicable, of the rating then
assigned by such Rating Agency to any Class of Certificates subject to Section
3.26(h); and provided, further, that, notwithstanding anything to the contrary
contained herein, neither the Master Servicer nor the Special Servicer shall
waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-sale" clause governing the transfer of any
Mortgaged Property which secures, or controlling interests in any Mortgagor
under, a Group of Cross-Collateralized Mortgage Loans unless all of the
Mortgaged Properties securing, or a controlling interest in all the Mortgagors
(if more than one) under, such Group of Cross-Collateralized Mortgage Loans are
transferred simultaneously to the same transferee. In the event that the Master
Servicer or Special Servicer intends or is required, in accordance with the
preceding sentence, the Mortgage Loan documents or applicable law, to permit the
transfer of any Mortgaged Property, the Master Servicer or the Special Servicer,
as the case may be, may, if consistent with the Servicing Standard, enter into a
substitution of liability agreement, pursuant to which the original Mortgagor
and any original guarantors are released from liability, and the transferee and
any new guarantors are substituted therefor and become liable under the Mortgage
Note and any related guaranties and, in connection therewith, may require from
the related Mortgagor a reasonable and customary fee for the additional services
performed by it, together with reimbursement for any related costs and expenses
incurred by it. The Master Servicer or the Special Servicer, as the case may be,
shall promptly notify the Trustee in writing of any such agreement and forward
the original thereof to the Trustee for inclusion in the related Mortgage File.
(b) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property;
or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property;
then, for so long as such Mortgage Loan is included in the Trust Fund, each of
the Master Servicer and the Special Servicer shall on behalf of the Trustee as
the mortgagee of record, as to those Mortgage Loans it is obligated to service
hereunder, exercise (or waive its right to exercise) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, but subject to
Section 3.20(a)(iii); provided that, notwithstanding anything to the contrary
contained herein, neither the Master Servicer nor the Special Servicer shall
waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause unless it first
(1) shall have provided, at least five Business Days prior to the granting of
such waiver or consent, to the Directing Certificateholder and, in the case of
the Master Servicer, to the Special Servicer written notice of the matter and a
written explanation of the surrounding circumstances, and (2) upon request made
within such five Business Day-period, shall have discussed the matter with the
Directing Certificateholder and/or, in the case of the Master Servicer, with the
Special Servicer; and provided, further, that, notwithstanding anything to the
contrary contained herein, neither the Master Servicer nor the Special Servicer
shall waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause until it has received
written confirmation from each Rating Agency that such action would not result
in the qualification, downgrade or withdrawal, as applicable, of the rating then
assigned by such Rating Agency to any Class of Certificates subject to Section
3.26(h).
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert (which may
include an REO Acquisition) the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments, and
which are not released from the Trust Fund pursuant to any other provision
hereof, if the Special Servicer determines, consistent with the Servicing
Standard, that such action would be in the best economic interest of the Trust.
The Special Servicer shall advance or direct the Master Servicer to advance, as
contemplated by Section 3.19(d), all costs and expenses to be incurred on behalf
of the Trust in any such proceedings, subject to each of the Master Servicer and
the Special Servicer being entitled to reimbursement for any such advance as a
Servicing Advance as provided in Section 3.05(a), and further subject to the
Special Servicer's being entitled to pay out of the related Liquidation Proceeds
any Liquidation Expenses incurred in respect of any Mortgage Loan, which
Liquidation Expenses were outstanding at the time such proceeds are received. In
connection with the foregoing, in the event of a default under any Mortgage Loan
or Group of Cross-Collateralized Mortgage Loans that are secured by real
properties located in multiple states, and such states include the State of
California or another state with a statute, rule or regulation comparable to the
State of California's "one action" rule, then the Special Servicer shall consult
with Independent counsel regarding the order and manner in which the Special
Servicer should foreclose upon or comparably proceed against such properties
(the cost of such consultation to be advanced by the Master Servicer as a
Servicing Advance, at the direction of the Special Servicer, subject to the
Master Servicer's being entitled to reimbursement therefor as a Servicing
Advance as provided in Section 3.05(a)). When applicable state law permits the
Special Servicer to select between judicial and non-judicial foreclosure in
respect of any Mortgaged Property, the Special Servicer shall make such
selection in a manner consistent with the Servicing Standard. Nothing contained
in this Section 3.09 shall be construed so as to require the Special Servicer,
on behalf of the Trust, to make an offer on any Mortgaged Property at a
foreclosure sale or similar proceeding that is in excess of the fair market
value of such property, as determined by the Special Servicer in its reasonable
and good faith judgment taking into account the factors described in
Section 3.18(e) and the results of any Appraisal obtained pursuant to the
following sentence or otherwise, all such offers to be made in a manner
consistent with the Servicing Standard. If and when the Special Servicer or the
Master Servicer deems it necessary and prudent for purposes of establishing the
fair market value of any Mortgaged Property securing a defaulted Mortgage Loan,
whether for purposes of making an offer at foreclosure or otherwise, the Special
Servicer or the Master Servicer, as the case may be, is authorized to have an
Appraisal completed with respect to such property (the cost of which Appraisal
shall be advanced by the Master Servicer as a Servicing Advance, subject to its
being entitled to reimbursement therefor as a Servicing Advance as provided in
Section 3.05(a), such Advance to be made at the direction of the Special
Servicer when the Appraisal is obtained by the Special Servicer).
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 (with the exception of cash or cash equivalents
pledged as collateral for a Mortgage Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the reasonable cost of which may be withdrawn from the Certificate
Account pursuant to Section 3.05(a)) to the effect that the holding of
such personal property by the Trust will not cause either of REMIC I or
REMIC II to fail to qualify as a REMIC at any time that any Certificate
is outstanding or, subject to Section 3.17, cause the imposition of a tax
on the Trust under the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Master Servicer shall, on behalf of the
Trustee, initiate foreclosure proceedings, obtain title to a Mortgaged Property
in lieu of foreclosure or otherwise, have a receiver of rents appointed with
respect to any Mortgaged Property, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on a Phase I Environmental Assessment that has been
prepared within the last 12 months (and any additional environmental testing
that the Special Servicer deems necessary and prudent) of such Mortgaged
Property performed by an Independent Person who regularly conducts Phase I
Environmental Assessments and such additional environmental testing, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions
as are necessary to bring the Mortgaged Property in compliance therewith
and proceeding against the Mortgaged Property is reasonably likely to
produce a greater recovery to Certificateholders on a present value basis
(the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Net
Mortgage Rate), taking into consideration any associated liabilities,
than not taking such actions and not proceeding against such Mortgaged
Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and/or regulations or, if such
circumstances or conditions are present for which any such action could
be required, that taking such actions with respect to such Mortgaged
Property and proceeding against the Mortgaged Property is reasonably
likely to produce a greater recovery to Certificateholders on a present
value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the
related Net Mortgage Rate), taking into consideration any associated
liabilities, than not taking such actions and not proceeding against such
Mortgaged Property.
The cost of such Phase I Environmental Assessment and any such
additional environmental testing, as well as the cost of any remedial,
corrective or other further action contemplated by clause (i) and/or clause (ii)
of the preceding paragraph, shall be advanced by the Master Servicer at the
direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds which, if so advanced, would
constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall be
subject to reimbursement as Servicing Advances in accordance with
Section 3.05(a).
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property, but including the sale of the
affected Mortgage Loan) and, at such time as it deems appropriate, may, on
behalf of the Trustee, release all or a portion of such Mortgaged Property from
the lien of the related Mortgage; provided that prior to the release of all or a
portion of the related Mortgaged Property from the lien of the related Mortgage,
(i) the Special Servicer shall have notified the Trustee in writing of its
intention to so release all or a portion of such Mortgaged Property, (ii) the
Trustee shall have notified the Certificateholders in writing of the Special
Servicer's intention to so release all or a portion of such Mortgaged Property
and (iii) the Holders of Certificates entitled to a majority of the Voting
Rights shall not have objected to such release within 30 days of the Trustee's
distributing such notice.
(e) The Special Servicer shall provide written reports to the
Trustee, the Master Servicer and the Rating Agencies monthly regarding any
actions taken by the Special Servicer with respect to any Mortgaged Property
securing a defaulted Mortgage Loan as to which the environmental testing
contemplated in subsection (c) above has revealed that either of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof has not been
satisfied or that any remedial, corrective or other further action contemplated
by either such clause is required, in each case until the earliest to occur of
(i) satisfaction of both such conditions and completion of all such remedial,
corrective or other further action, (ii) repurchase of the related Mortgage Loan
by the related Mortgage Loan Seller and (iii) release of the lien of the related
Mortgage on such Mortgaged Property. The Trustee shall forward copies of all
such reports to the Certificateholders upon written request promptly following
its receipt thereof. In addition, the Master Servicer will deliver or cause to
be delivered to any of the Class C, Class D, Class E, Class F and Class G
Certificateholders that shall request a copy of any such written reports and any
Phase I Environmental Assessments within 15 days after receipt of such written
reports and Phase I Environmental Assessments from the Special Servicer.
(f) The Special Servicer shall file the information returns with
respect to the receipt of any mortgage interest received in a trade or business,
the reports of foreclosures and abandonments and reports relating to any
cancellation of indebtedness income with respect to any Mortgaged Property
required by Sections 6050H, 6050J and 6050P of the Code and deliver to the
Trustee an Officer's Certificate stating that such reports have been filed. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by such Sections 6050H, 6050J and 6050P of the Code.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action.
The Master Servicer, at the direction of the Special Servicer, shall advance the
costs incurred in any such deficiency action, subject to its being entitled to
reimbursement therefor as a Servicing Advance as provided in Section 3.05(a).
(h) The Special Servicer shall maintain accurate records, certified
by a Servicing Officer, of each Final Recovery Determination in respect of any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Master Servicer and the Rating Agencies no later than the tenth
Business Day following such Final Recovery Determination.
(i) Notwithstanding any provision to the contrary contained in this
Agreement, in connection with any Credit Lease Loan, the Special Servicer shall
not proceed with any foreclosure action or take any other actions which would
result in a transfer of ownership of the Mortgaged Property or in a Credit Lease
Termination Condition in connection with an event of default under any of the
Mortgage Loan documents if the related Credit Lease Loan is not delinquent on
payments of principal and interest and such default relates solely to the
Mortgagor's failure to fulfill any Borrower Credit Lease Obligation unless
(i) the Advanced Amount with respect to such Credit Lease Loan has exceeded 60%
of the Anticipated Liquidation Value with respect to such Loan, (ii) the Special
Servicer shall have received the prior written consent of the Directing
Certificateholder, (iii) any Servicing Advance with respect to such Mortgage
Loan shall be deemed a Nonrecoverable Servicing Advance or (iv) the original
scheduled maturity date of such Credit Lease Loan has occurred; provided,
however, that any foreclosure shall be subject to the Servicing Standard and any
other applicable provision of this Agreement; provided, further, that neither
the Master Servicer, the Special Servicer nor the Trustee shall be prohibited by
this Section 3.09(i) from accelerating the indebtedness evidenced by the
Mortgage Note to the extent permitted by the Mortgage Loan documents, or
requiring payment of Default Interest in connection with any overdue amounts
(including, without limitation, the full amount of the Credit Lease Loan after
such an acceleration).
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer or Special Servicer of a notification that payment in full
shall be escrowed in a manner customary for such purposes, the Master Servicer
or Special Servicer, as the case may be, shall immediately notify the Trustee
and request delivery of the related Mortgage File by delivering thereto a
Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer of the Master Servicer or Special Servicer, as applicable. Any
such Request for Release shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account pursuant to Section 3.04(a)
have been or will be so deposited. Upon receipt of such notice and request
conforming in all material respects to the provisions hereof, the Trustee shall
promptly release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer or Special Servicer, as applicable. The
Master Servicer (and not the Trustee) shall prepare any related instrument of
satisfaction or deed of reconveyance. No expenses incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable to
the Certificate Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer or the Special Servicer and receipt therefrom of
a Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation which are
required to be deposited into the Certificate Account pursuant to
Section 3.04(a) have been or will be so deposited, or that such Mortgage Loan
has become an REO Property, the Request for Release shall be released by the
Trustee to the Master Servicer or the Special Servicer, as applicable.
(c) The Trustee, if requested, shall promptly execute and deliver to
the Special Servicer any court pleadings, requests for trustee's sale or other
documents furnished by the Special Servicer and certified by it as being
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Mortgage Note or Mortgage
or otherwise available at law or in equity or for any other purpose necessary or
advisable in the reasonable, good faith judgment of the Special Servicer;
provided, however, that the Special Servicer shall be responsible for the
preparation of all such documents and pleadings; and when submitted to the
Trustee for signature, such documents or pleadings shall be accompanied by a
certificate of a Servicing Officer requesting that such pleadings or documents
be executed by the Trustee and certifying as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
SECTION 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee and Fiscal Agent
Regarding Back-up Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including, without limitation, each Specially Serviced
Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the
Master Servicing Fee shall accrue at the applicable Master Servicing Fee Rate on
the basis of the same principal amount and for the same number of days
respecting which any related interest payment due on such Mortgage Loan or
deemed to be due on such REO Loan is computed under the terms of the related
Mortgage Note (as such terms may be changed or modified at any time following
the Closing Date) and applicable law. For the avoidance of doubt, the
outstanding principal balance of the Blue Cross Loan for purposes of calculating
the related Master Servicing Fee is 50% of the amount that the outstanding
principal balance of the Loan (as defined in the Blue Cross Participation
Agreement) would be if such Credit Lease Loan were a Mortgage Loan hereunder in
its entirety. The Master Servicing Fee with respect to any Mortgage Loan or REO
Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
Earned but unpaid Master Servicing Fees shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan and REO
Revenues allocable as interest on each REO Loan. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan
or REO Loan out of Insurance Proceeds or Liquidation Proceeds, to the extent
permitted by Section 3.05(a). The right to receive the Master Servicing Fee may
not be transferred in whole or in part except in accordance with the following
paragraph, except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement or except as
provided in Section 3.22(d). The Master Servicer shall, monthly out of its
Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer
such Sub-Servicer's sub-servicing fee (including, without limitation, any
Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is
entitled thereto under the applicable Sub-Servicing Agreement.
Midland may, at its option, sell or pledge the rights to the
"Transferable Portion" (as hereinafter defined) of its Master Servicing Fee;
provided that in the event of any resignation or termination of Midland (or any
successor thereto) as Master Servicer, the rights of Midland or any transferee
of such Transferable Portion shall terminate (except for the right to receive
the Excess Portion (as defined below), if any, on any Distribution Date as set
forth in the penultimate sentence of this paragraph). In the event of the
appointment of a successor Master Servicer, the Trustee shall cooperate with
Midland to attempt to appoint a successor (which may be the Trustee) which,
subject to the Trustee's satisfaction as to quality of servicing and the best
interests of Certificateholders and the requirements of Article VII of this
Agreement, will perform the services of the Master Servicer for payment of an
amount (the "Successor Servicer Retained Fee") less than the full Master
Servicing Fee expressed as a fixed number of basis points such that the
Transferable Portion is reduced only to the extent reasonably necessary (in the
sole discretion of the Trustee) to provide market rate compensation (except that
the Transferable Portion shall be reduced to zero during any period for which
the Trustee serves as successor servicer hereunder by reason of a default by the
Master Servicer). If, and only if, the successor Master Servicer shall have so
agreed to perform such services for less than the full Master Servicing Fee,
then while such successor Master Servicer will be entitled to receive the full
Master Servicing Fee, it shall pay the excess of the Transferable Portion (which
would otherwise be payable) over the Successor Servicer Retained Fee on each
Distribution Date (any such excess, the "Excess Portion") to Midland or any
transferee of the Transferable Portion, as applicable, at such time and to the
extent the Master Servicer is entitled to receive payment of the Master
Servicing Fees under this Agreement, notwithstanding any termination of Midland
under this Agreement. If the successor Master Servicer shall not have agreed to
perform such services for such lesser amount, the rights of Midland or any
transferee to the Transferable Portion shall terminate. The "Transferable
Portion" of the Master Servicing Fee is the amount by which the Master Servicing
Fee exceeds the sum of (i) the Primary Servicing Fee and (ii) the amount of the
related Master Servicing Fee calculated using a rate of 0.01% per annum.
(b) The Master Servicer shall be entitled to receive as additional
servicing compensation:
(i) Default Charges (excluding any Default Interest collected in
respect of any Credit Lease Loan), assumption fees, modification fees,
charges for beneficiary statements or demands and any similar fees
(excluding Prepayment Premiums), in each case to the extent actually paid
by a Mortgagor with respect to a Mortgage Loan that is not a Specially
Serviced Mortgage Loan;
(ii) amounts collected for checks returned for insufficient funds,
to the extent actually paid by a Mortgagor with respect to any Mortgage
Loan;
(iii) any Prepayment Interest Excesses collected on the Mortgage
Loans;
(iv) interest or other income earned on deposits in the Certificate
Account, in accordance with Section 3.06(b) (but only to the extent of
the Net Investment Earnings, if any, with respect to the Certificate
Account for each Collection Period); and
(v) to the extent not required to be paid to any Mortgagor under
applicable law or under the related Mortgage, any Net Investment Earnings
on deposits in the Servicing Accounts, Rent Escrow Accounts and Borrower
Reserve Funds maintained by the Master Servicer;
provided that with respect to the items of additional servicing compensation set
forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the
amounts described therein to the related Sub-Servicer to the extent such
Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement.
The Master Servicer shall be required to pay out of its own funds
all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any Sub-Servicer retained by it and the premiums for any blanket policy
insuring against hazard losses pursuant to Section 3.07(b)), if and to the
extent such expenses are not payable directly out of the Certificate Account,
and the Master Servicer shall not be entitled to reimbursement therefor except
as expressly provided in this Agreement.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Loan; provided, however, for
the avoidance of doubt, the Special Servicer shall not be entitled to a Special
Servicing Fee with respect to the Blue Cross Loan notwithstanding that the Blue
Cross Loan may have become a Specially Serviced Mortgage Loan. As to each
Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall
accrue from time to time at the Special Servicing Fee Rate on the basis of the
same principal amount and for the same number of days respecting which any
related interest payment due on such Mortgage Loan or deemed to be due on such
REO Loan is computed under the terms of the related Mortgage Note (as such terms
may be modified at any time following the Closing Date) and applicable law. The
Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or
REO Loan shall cease to accrue as of the date a Liquidation Event occurs in
respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid
Special Servicing Fees shall be payable monthly out of general collections on
the Mortgage Loans and any REO Properties on deposit in the Certificate Account
pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, unless (i) the basis on which such Mortgage Loan became
a Corrected Mortgage Loan was the remediation of a circumstance or condition
relating to the related Mortgage Loan Seller's obligation to repurchase such
Mortgage Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is
repurchased within the 120-day period described in Section 2.03(a), no Workout
Fee will be payable from or based upon the receipt of, any Purchase Price paid
by the related Mortgage Loan Seller in satisfaction of such repurchase
obligation; or (ii) the related Mortgage Loan became a Specially Serviced
Mortgage Loan solely as a result of the event described in clause (i) of the
definition of Specially Serviced Mortgage Loan. Furthermore, no Workout Fees
will be payable from or based upon the receipt of any Liquidation Proceeds paid
by any Majority Certificateholder of the Controlling Class or the Master
Servicer in connection with the purchase of all the Mortgage Loans and any REO
Properties in the Trust Fund pursuant to Section 9.01 hereof. As to each
Corrected Mortgage Loan, subject to the exceptions provided for in the two
preceding sentences, the Workout Fee shall be payable from, and shall be
calculated by application of the Workout Fee Rate to, each collection of
interest (other than Default Interest) and principal received on such Mortgage
Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if a Servicing
Transfer Event occurs with respect thereto or if the related Mortgaged Property
becomes an REO Property; provided that a new Workout Fee will become payable if
and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the
Special Servicer is terminated other than for cause or resigns in accordance
with clause (ii) of the first paragraph of Section 6.04, it shall retain the
right to receive any and all Workout Fees payable in respect of Mortgage Loans
that became Corrected Mortgage Loans during the period that it acted as Special
Servicer and were still such at the time of such termination or resignation (and
the successor Special Servicer shall not be entitled to any portion of such
Workout Fees), in each case until the Workout Fee for any such Mortgage Loan
ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property as to which it receives
any full or discounted payoff from the related Mortgagor or any Liquidation
Proceeds (other than in connection with the purchase of any such Specially
Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to
Section 3.18, by the Master Servicer or the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18 or Section 9.01, or by the related
Mortgage Loan Seller pursuant to Section 2.03 within 120 days of its discovery
or notice of the breach or Document Defect that gave rise to the repurchase
obligation, and other than in connection with the condemnation or other
governmental taking of a Mortgaged Property or REO Property). As to each such
Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be
payable from, and shall be calculated by application of the Liquidation Fee Rate
to, such full or discounted payoff and/or Liquidation Proceeds (excluding any
portion of such payoff and/or proceeds that represents accrued but unpaid
Default Interest); provided that no Liquidation Fee will be payable with respect
to any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage
Loan; and provided, further, that (without limiting the Special Servicer's right
to any Workout Fee that is properly payable therefrom), no Liquidation Fee will
be payable from, or based upon the receipt of, Liquidation Proceeds collected as
a result of any purchase of a Specially Serviced Mortgage Loan or REO Property
described in the parenthetical to the first sentence of this paragraph or in
connection with a condemnation or other governmental taking of a Mortgaged
Property or REO Property.
Notwithstanding anything to the contrary herein, a Liquidation Fee
and a Workout Fee relating to the same Mortgage Loan shall not be paid from the
same proceeds on or with respect to such Mortgage Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(d) The Special Servicer shall be entitled to receive as additional
special servicing compensation:
(i) (A) to the extent allocable to the period when any Mortgage Loan
is a Specially Serviced Mortgage Loan or to the extent allocable to an
REO Loan, any Net Default Charges (excluding any Default Interest
collected in respect of any Credit Lease Loan) actually collected on such
Mortgage Loan or REO Loan, as the case may be, and (B) assumption fees,
modification fees, charges for beneficiary statements or demands and any
similar fees (excluding Prepayment Premiums) actually collected on or
with respect to Specially Serviced Mortgage Loans or REO Loans; and
(ii) interest or other income earned on deposits in the REO Account,
if established, in accordance with Section 3.06(b) (but only to the
extent of the Net Investment Earnings, if any, with respect to the REO
Account for each Collection Period).
To the extent the amounts described in clause (i)(B) of the
preceding paragraph are collected by the Master Servicer, the Master Servicer
shall promptly pay such amounts to the Special Servicer and shall not be
required to deposit such amounts in the Certificate Account pursuant to
Section 3.04(a). Additional servicing compensation to which the Master Servicer
(or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer
retained thereby) is entitled pursuant to Section 3.11(b) in the form of
assumption fees, modification fees, charges for beneficiary statements or
demands and any similar fees (excluding Prepayment Premiums) collected by the
Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage
Loans or REO Loans, or in the form of amounts collected for checks returned for
insufficient funds with respect to any Mortgage Loans (including, without
limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the
Master Servicer by the Special Servicer.
The Special Servicer shall be required to pay out of its own funds
all overhead, general and administrative expenses incurred by it in connection
with its servicing activities hereunder (including, without limitation, payment
of any amounts due and owing to any Sub-Servicers retained by it and the
premiums for any blanket policy obtained by it insuring against hazard losses
pursuant to Section 3.07(b)), if and to the extent such expenses are not payable
directly out of the Certificate Account or the REO Account and the Master
Servicer is not required to advance such expenses at the direction of the
Special Servicer, and the Special Servicer shall not be entitled to
reimbursement except as expressly provided in this Agreement.
(e) If the Master Servicer or Special Servicer is required under
this Agreement to make a Servicing Advance, but neither does so within 15 days
after such Servicing Advance is required to be made, the Trustee shall, if it
has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be, give notice of such failure, as
applicable, to the Master Servicer and/or the Special Servicer. If such
Servicing Advance is not made by the Master Servicer or the Special Servicer
within one Business Day after such notice then (subject to Section 3.11(g)
below), the Trustee shall make such Servicing Advance. If the Trustee fails to
make a Servicing Advance required to be made by it, the Fiscal Agent shall make
such Servicing Advance within one Business Day after such notice provided to the
Master Servicer and/or the Special Servicer by the Trustee above (subject to
Section 3.11(g) below). The making of such Servicing Advance by the Fiscal Agent
will cure the Trustee's failure to make such Servicing Advance. Any failure by
the Master Servicer or the Special Servicer to make a Servicing Advance it is
required to make hereunder shall constitute an Event of Default by the Master
Servicer or the Special Servicer, as the case may be, subject to and as provided
in Section 7.01(a). With respect to the Credit Lease Loans, the Master Servicer,
the Special Servicer or the Trustee, as applicable, shall make all Servicing
Advances first, from amounts available in the Expense Reserve Fund.
(f) As and to the extent permitted by Section 3.05(a), the Expense
Reserve Fund, the Master Servicer, the Special Servicer (to the extent it has
not already been reimbursed for any such Servicing Advance by the Master
Servicer), the Trustee and the Fiscal Agent shall each be entitled to receive
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of each Servicing Advance made thereby (out of its own funds) for so long
as such Servicing Advance is outstanding, and such interest will be paid: first,
out of any Default Charges collected on or in respect of the related Mortgage
Loan during, and allocable to, the period, if any, that it was a Specially
Serviced Mortgage Loan or an REO Loan; and second, at any time coinciding with
or following the reimbursement of such Servicing Advance, out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Certificate Account. As and to the extent provided in Sections 3.03(a) and
3.05(a), the Master Servicer shall reimburse itself, the Expense Reserve Fund,
the Special Servicer, the Trustee or the Fiscal Agent, as appropriate, for any
Servicing Advance made thereby as soon as practicable after funds available for
such purpose are deposited in the Certificate Account or a Servicing Account.
(g) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent
shall be required to make any Servicing Advance (including, without limitation,
an Emergency Advance) that it determines in its reasonable, good faith judgment
would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable
Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of
general collections on the Mortgage Pool on deposit in the Certificate Account.
The determination by the Master Servicer, the Special Servicer or, if
applicable, the Trustee or the Fiscal Agent, that it has made a Nonrecoverable
Servicing Advance or that any proposed Servicing Advance, if made, would
constitute a Nonrecoverable Servicing Advance, shall be evidenced by an
Officer's Certificate delivered promptly to the Trustee (or, if applicable,
retained thereby), the Depositor and the Rating Agencies, setting forth the
basis for such determination, together with (if such determination is prior to
the liquidation of the related Mortgage Loan or REO Property) a copy of an
Appraisal of the related Mortgaged Property or REO Property, as the case may be,
which shall have been performed within the twelve months preceding such
determination, and further accompanied by any other information, including,
without limitation, engineers' reports, environmental surveys, inspection
reports, rent rolls, income and expense statements or similar reports, that the
Master Servicer or the Special Servicer may have obtained and that supports such
determination. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer or the Special
Servicer, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of a
Servicing Advance, obtain an Appraisal for such purpose at the expense of the
Trust. The Trustee and the Fiscal Agent shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Master
Servicer or the Special Servicer with respect to a particular Servicing Advance.
(h) Notwithstanding anything to the contrary set forth herein, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved) pay directly out of the
Certificate Account any servicing expense that, if paid by the Master Servicer
or the Special Servicer, would constitute a Nonrecoverable Servicing Advance;
provided that the Master Servicer (or the Special Servicer, if a Specially
Serviced Mortgage Loan or an REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment is in the best
interests of the Certificateholders (as a collective whole), as evidenced by an
Officer's Certificate delivered promptly to the Trustee, the Depositor and the
Rating Agencies, setting forth the basis for such determination and accompanied
by any information that the Master Servicer or the Special Servicer may have
obtained that supports such determination.
SECTION 3.12 Inspections; Collection of Financial Statements.
(a) Commencing in 2000, the Master Servicer shall, at its own cost
and expense, inspect or cause the inspection of each Mortgaged Property at least
once every two years (or, if the related Mortgage Loan has a then current
balance greater than $2,000,000, or if the long-term debt rating given by a
Rating Agency with respect to the Tenant under the related Credit Lease Loan has
been downgraded by one rating letter grade or below "BB-" or its equivalent,
then at the time of such downgrade, and thereafter at least once every year),
provided that at least 50% of the Mortgaged Properties (by both number and
aggregate Stated Principal Balances of the related Mortgage Loans) will be
inspected each year by the Master Servicer (or an entity employed by the Master
Servicer for such purpose) or, in accordance with the second succeeding
sentence, by the Special Servicer. The Master Servicer shall be responsible for
such inspections only in respect of (i) Mortgage Loans that are not Specially
Serviced Mortgage Loans and (ii) Corrected Mortgage Loans. The Special Servicer,
subject to statutory limitations or limitations set forth in the related
Mortgage Loan documents, shall perform or cause to be performed a physical
inspection of a Mortgaged Property as soon as practicable after the servicing of
the related Mortgage Loan is transferred thereto pursuant to Section 3.21(a) and
annually thereafter so long as it is a Specially Serviced Mortgage Loan. The
Master Servicer and the Special Servicer shall each prepare or cause to be
prepared as soon as reasonably possible a written report of each such inspection
performed or caused to be performed thereby detailing the condition of the
Mortgaged Property and specifying the existence of (i) any vacancy in the
Mortgaged Property that is, in the reasonable judgment of the Master Servicer or
Special Servicer (or their respective designees), as the case may be, material
and is evident from such inspection, (ii) any abandonment of the Mortgaged
Property, (iii) any change in the condition or value of the Mortgaged Property
that is, in the reasonable judgment of the Master Servicer or Special Servicer
(or their respective designees), as the case may be, material and is evident
from such inspection, (iv) any waste on or deferred maintenance in respect of
the Mortgaged Property that is evident from such inspection or (v) any capital
improvements made that are evident from such inspection. The Master Servicer and
Special Servicer each shall, within 10 days of the preparation thereof, deliver
to the Trustee, the Directing Certificateholder, the Rating Agencies, each other
and, upon request of a Class C, Class D, Class E, Class F and Class G
Certificateholder, such Holder, a copy of (and, upon request by any such Person,
shall promptly discuss therewith the contents of) each such written report
prepared or caused to be prepared by or on behalf of it. Furthermore, the Master
Servicer shall obtain (and shall deliver to the requesting party and the
Trustee) such additional information with respect to the matters addressed in
such written report as the Special Servicer, and/or the Directing
Certificateholder, may reasonably request and shall cooperate with and
reasonably assist the Special Servicer in making direct inquiries with any
Mortgagor to the extent any such direct inquiry by the Special Servicer would
not violate the terms of any applicable Sub-Servicing Agreement; provided that
if the Special Servicer or any such Certificateholder shall desire such an
inquiry to be made of a Mortgagor, and if the subject Mortgage Loan is then
being primary serviced by a Sub-Servicer, then the Master Servicer shall in each
instance (regardless of whether such Mortgage Loan was originated by such
Sub-Servicer), unless otherwise agreed by such Sub-Servicer, first request that
such Sub-Servicer make such inquiry (and the Master Servicer or the Special
Servicer may contact such Mortgagor directly in such instance if such request
has been so made to such Sub-Servicer and the requested information has not
thereafter been obtained by such Sub-Servicer within a reasonable time). The
Trustee shall make available to Certificateholders, Certificate Owners and
prospective Certificateholders and Certificate Owners (which prospective
Certificateholders and Certificate Owners have been certified to it as such by a
Certificateholder or a Certificate Owner), in accordance with Section 8.12(b),
copies of all the written reports delivered to it pursuant to this
Section 3.12(a) and, if and to the extent delivered to it in a written or
electronic format, the related additional information referred to in the
preceding sentence. In the absence of actual knowledge that the Master Servicer
or the Special Servicer is in default under this Section 3.12(a), the Trustee
shall have no obligation to confirm that inspections of the Mortgaged Properties
are being performed in accordance with this Section 3.12(a).
(b) The Special Servicer, in the case of the Specially Serviced
Mortgage Loans and REO Properties, and the Master Servicer, in the case of all
other Mortgage Loans, shall make reasonable efforts to collect or otherwise
obtain promptly (from the related Mortgagor in the case of a Mortgage Loan)
annual and quarterly operating statements and rent rolls of the related
Mortgaged Property or REO Property (and financial statements of the related
Mortgagor in the case of a Mortgage Loan), whether or not delivery of such items
is required pursuant to the terms of the related Mortgage. The Special Servicer,
in the case of the Specially Serviced Mortgage Loans and REO Properties, and the
Master Servicer, in the case of all other Mortgage Loans, shall promptly:
(i) review all such items as may be collected; (ii) prepare written reports
based on such reviews identifying the revenues, expenses, Net Operating Income
and Debt Service Coverage Ratios for the related Mortgage Loans and REO Loans
and any extraordinary increases or decreases in expenses or revenues associated
with the related Mortgaged Properties and REO Properties; (iii) deliver copies
of the collected items, and of the written reports prepared in respect thereof,
to the Trustee, the Directing Certificateholder, the Rating Agencies, each other
and, upon request of a Class C, Class D, Class E, Class F and Class G
Certificateholder, such Holder, in each case within 45 days of its receipt or
preparation, as applicable (it being understood and agreed that with respect to
Mortgage Loans (including, without limitation, Specially Serviced Mortgage
Loans) that are primary serviced by a Sub-Servicer, such collected items shall
be deemed to have been received by the Master Servicer or the Special Servicer,
as the case may be, at the same time they are received by the applicable
Sub-Servicer); and (iv) promptly upon the request of any Person referred in the
immediately preceding clause (iii), to discuss therewith the contents of the
collected items and the written reports referred to in the immediately preceding
clause (iii). Furthermore, the Master Servicer shall obtain (and shall deliver
to the requesting party and the Trustee) such additional information with
respect to the matters addressed in the collected items and written reports
referred to above as the Special Servicer, and/or the Directing
Certificateholder, and/or a Class C, Class D, Class E, Class F and Class G
Certificateholder, may reasonably request and shall cooperate with and
reasonably assist the Special Servicer in making direct inquiries with any
Mortgagor to the extent any such direct inquiry by the Special Servicer would
not violate the terms of any applicable Sub-Servicing Agreement; provided that
if the Special Servicer or any such Certificateholder shall desire such an
inquiry to be made of a Mortgagor, and if the subject Mortgage Loan is then
being primary serviced by a Sub-Servicer, then the Master Servicer shall in each
instance (regardless of whether such Mortgage Loan was originated by such
Sub-Servicer), unless otherwise agreed by such Sub-Servicer, first request that
such Sub-Servicer make such inquiry (and the Master Servicer or the Special
Servicer may contact such Mortgagor directly in such instance if such request
has been so made to such Sub-Servicer and the requested information has not
thereafter been obtained by such Sub-Servicer within a reasonable time). The
Trustee shall make available to Certificateholders, Certificate Owners and
prospective Certificateholders and Certificate Owners (which prospective
Certificateholders and Certificate Owners have been certified to it as such by a
Certificateholder or a Certificate Owner), in accordance with Section 8.12(b),
copies of all the written reports delivered to it pursuant to this
Section 3.12(b) and, if and to the extent delivered to it in written or
electronic format, the related additional information referred to in the
preceding sentence.
SECTION 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to
the Trustee and the Rating Agencies, and, upon request of a Class C, Class D,
Class E, Class F and Class G Certificateholder, such Holder, with a copy to the
Depositor, on or before April 30 of each year, beginning April 30, 2000, an
Officer's Certificate stating that (i) a review of the activities of the Master
Servicer or the Special Servicer, as the case may be, during the preceding
calendar year, and of its performance under this Agreement during such calendar
year, has been made under the signing officer's supervision, (ii) to the best of
such officer's knowledge, based on such review, the Master Servicer or the
Special Servicer, as the case may be, has in all material respects fulfilled all
of its obligations under this Agreement throughout such calendar year, or, if
there has been a material default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof, and (iii) the Master Servicer or the Special Servicer, as the case may
be, has received no notice regarding the qualification or status as a REMIC of,
or otherwise asserting a tax (other than ad valorem real property taxes or other
similar taxes on REO Property) on the income or assets of, any portion of the
Trust Fund from the Internal Revenue Service or from any other governmental
agency or body or, if it has received any such notice, specifying the details
thereof. The signing officer shall have no personal liability with respect to
the content of any such statement, and the Master Servicer or the Special
Servicer, as the case may be, shall be deemed to have made such statement and
shall assume any liability resulting therefrom.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
Officer's Certificate delivered pursuant to this Section 3.13 to requirements
imposed by the Commission on the Depositor in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act.
SECTION 3.14 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 2000 (or, as
to any such year, such earlier date as is contemplated by the last sentence of
this paragraph), each of the Master Servicer and the Special Servicer, at its
expense, shall cause a firm of independent public accountants that is a member
of the American Institute of Certified Public Accountants to furnish a statement
to the Depositor, the Trustee, the Rating Agencies, the Directing
Certificateholder and, upon request of a Class C, Class D, Class E, Class F and
Class G Certificateholder, such Holder, to the effect that such firm has
examined such documents and records as it has deemed necessary and appropriate
relating to the Master Servicer's or the Special Servicer's, as the case may be,
servicing of the Mortgage Loans under this Agreement or the servicing of
mortgage loans similar to the Mortgage Loans under substantially similar
agreements for the preceding calendar year (or during the period from the date
of commencement of the Master Servicer's or the Special Servicer's, as the case
may be, duties hereunder until the end of such preceding calendar year in the
case of the first such certificate) and that the assertion of the management of
the Master Servicer or the Special Servicer, as the case may be, that it
maintained an effective internal control system over servicing of the Mortgage
Loans or similar mortgage loans is fairly stated in all material respects, based
upon established criteria, which statement meets the standards applicable to
accountants' reports intended for general distribution. In rendering its report
such firm may rely, as to matters relating to the direct servicing of
securitized commercial and multifamily mortgage loans by Sub-Servicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those Sub-Servicers.
If the Depositor notifies the Trustee, the Master Servicer and the Special
Servicer on or before March 1 of any year that such statements are required to
be filed with the Commission as part of the Form 10-K for the Trust covering the
prior calendar year, each of the Master Servicer and the Special Servicer shall
deliver such statement in respect of it by March 15 of such year.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust pursuant to the Exchange Act.
SECTION 3.15 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall provide
or cause to be provided to the other such party, the Depositor, the Trustee and
the Rating Agencies, and to the OTS, the FDIC, and any other federal or state
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Mortgage Loans and
the other assets of the Trust Fund that are within its control which may be
required by this Agreement or by applicable law. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it.
SECTION 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders. The Special Servicer shall sell any REO Property by the
end of the third calendar year beginning after the year in which the Trust
acquires ownership of such REO Property for purposes of Section 860G(a)(8) of
the Code, unless the Special Servicer either (i) is granted an extension of time
(an "REO Extension") by the Internal Revenue Service to sell such REO Property
or (ii) obtains for the Trustee and the REMIC Administrator an Opinion of
Counsel, addressed to the Trustee and the REMIC Administrator, to the effect
that the holding by the Trust of such REO Property subsequent to the end of the
third calendar year beginning after the year in which such acquisition occurred,
will not result in the imposition of taxes on "prohibited transactions" of
REMIC I or REMIC II as defined in Section 860F of the Code or cause REMIC I or
REMIC II to fail to qualify as a REMIC at any time that any Certificates are
outstanding. If the Special Servicer is granted the REO Extension contemplated
by clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall sell such REO Property within such period longer than the
end of the third calendar year beginning after the year that such property was
acquired, as is permitted by such REO Extension or such Opinion of Counsel, as
the case may be. Any reasonable expense incurred by the Special Servicer in
connection with its being granted the REO Extension contemplated by clause (i)
of the second preceding sentence or its obtaining the Opinion of Counsel
contemplated by clause (ii) of the second preceding sentence, shall be an
expense of the Trust payable out of the Certificate Account pursuant to
Section 3.05(a). Any REO Extension shall be requested by the Special Servicer no
later than 60 days before the end of the third calendar year beginning after the
year in which the Trust acquired ownership of the related REO Property.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), to be held on behalf of the Trustee in trust
for the benefit of the Certificateholders, for the retention of revenues and
other proceeds derived from each REO Property. The REO Account shall be an
Eligible Account and may consist of one account for all the REO Properties. The
Special Servicer shall deposit, or cause to be deposited, in the REO Account,
within two Business Days of receipt, all REO Revenues, Liquidation Proceeds (net
of all Liquidation Expenses paid therefrom) and Insurance Proceeds received in
respect of an REO Property. The Special Servicer is authorized to pay out of
related Liquidation Proceeds any Liquidation Expenses incurred in respect of an
REO Property and outstanding at the time such proceeds are received. Funds in
the REO Account may be invested in Permitted Investments in accordance with
Section 3.06. The Special Servicer shall be entitled to make withdrawals from
the REO Account to pay itself, as additional servicing compensation in
accordance with Section 3.11(d), interest and investment income earned in
respect of amounts held in the REO Account as provided in Section 3.06(b) (but
only to the extent of the Net Investment Earnings with respect to the REO
Account for any Collection Period). The Special Servicer shall give notice to
the other parties hereto of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only to the extent of amounts on deposit in the REO
Account relating to such REO Property. Within one Business Day following the end
of each Collection Period, the Special Servicer shall withdraw from the REO
Account and deposit into the Certificate Account or deliver to the Master
Servicer (which shall deposit such amounts into the Certificate Account) the
aggregate of all amounts received in respect of each REO Property during such
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that the Special Servicer may retain in the REO
Account such portion of proceeds and collections as may be necessary to maintain
a reserve of sufficient funds for the proper operation, management, maintenance
and disposition of the related REO Property (including without limitation the
creation of a reasonable reserve for repairs, replacements and necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items to be incurred during the following twelve-month
period.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are in the
best interests of and for the benefit of the Certificateholders (as determined
by the Special Servicer in its good faith and reasonable judgment). Subject to
this Section 3.17, the Special Servicer may earn "net income from foreclosure
property" within the meaning of Code Section 860G(d) if it determines that
earning such income is in the best interests of Certificateholders on a net
after-tax basis as compared with net leasing such REO Property or operating such
REO Property on a different basis. In connection therewith, the Special Servicer
shall deposit or cause to be deposited on a daily basis (and in no event later
than the Business Day following receipt of such funds) in the applicable REO
Account all revenues received by it with respect to each REO Property and the
related REO Loan, and shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing and maintenance of such REO
Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i)
through (iv) above with respect to such REO Property, the Special Servicer shall
direct the Master Servicer to make (and the Master Servicer shall so make)
Servicing Advances in such amounts as are necessary for such purposes unless (as
evidenced in the manner contemplated by Section 3.11(g)) the Special Servicer or
the Master Servicer determines, in its reasonable, good faith judgment, that
such payment would be a Nonrecoverable Servicing Advance.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms
will give rise to any income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an
Opinion of Counsel (the cost of which shall be paid by the Master Servicer as a
Servicing Advance) to the effect that such action will not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code at any time that it is held by the Trust Fund, in
which case the Special Servicer may take such actions as are specified in such
Opinion of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non-customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property in accordance with Sections 3.17(a) and
3.17(b).
SECTION 3.18 Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale or
purchase of, a Mortgage Loan or REO Property only on the terms and subject to
the conditions set forth in this Section 3.18 or as otherwise expressly provided
in or contemplated by Sections 2.03 and 9.01.
(b) If the Special Servicer has determined, in its good faith and
reasonable judgment, that any Defaulted Mortgage Loan will become the subject of
a foreclosure sale or similar proceeding, and that the sale of such Mortgage
Loan under the circumstances provided in this Section 3.18(b) or in
Section 3.18(c) is in accordance with the Servicing Standard, the Special
Servicer shall promptly so notify in writing the Trustee, the Master Servicer
and each Rating Agency, and the Trustee shall, within 10 days after receipt of
such notice, notify all the Certificateholders of the Controlling Class. The
Majority Certificateholder of the Controlling Class may at its option purchase
from the Trust, at a price equal to the applicable Purchase Price, any such
Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased
under this paragraph (b) shall be deposited into the Certificate Account, and
the Trustee, upon receipt of an Officer's Certificate from the Master Servicer
to the effect that such deposit has been made, shall release or cause to be
released to the Certificateholder(s) effecting such purchase (or any designee
thereof) the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the
Certificateholder(s) effecting such purchase (or any designee thereof) ownership
of such Mortgage Loan. In connection with any such purchase, the Special
Servicer shall deliver the related Servicing File to the Certificateholder(s)
effecting such purchase (or any designee thereof).
(c) If the Majority Certificateholder of the Controlling Class has
not purchased any Defaulted Mortgage Loan described in the first sentence of
Section 3.18(b) within 15 days of its having received notice in respect thereof
pursuant to Section 3.18(b) above, either the Special Servicer or, subject to
the Special Servicer's prior rights in such regard, the Master Servicer may at
its option purchase such Mortgage Loan from the Trust, at a price equal to the
Purchase Price. The Purchase Price for any such Mortgage Loan purchased under
this paragraph (c) shall be deposited into the Certificate Account, and the
Trustee, upon receipt of an Officer's Certificate from the Master Servicer to
the effect that such deposit has been made, shall release or cause to be
released to the Master Servicer or the Special Servicer, as applicable, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the Master Servicer or the Special
Servicer, as applicable, the ownership of such Mortgage Loan. In connection with
any such purchase by the Master Servicer, the Special Servicer shall deliver the
related Servicing File to the Master Servicer.
(d) The Special Servicer may offer to sell or otherwise realize upon
any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b)
or Section 3.18(c) above, if and when the Special Servicer determines,
consistent with the Servicing Standard, that such a sale would be in the best
economic interests of the Trust. Such offer shall be made in a commercially
reasonable manner (which, for purposes hereof, includes an offer to sell without
representation or warranty other than customary warranties of title, loan
status, condition and similar customary matters, if liability for breach thereof
is limited to recourse against the Trust) for a period of not less than 30 days.
Unless the Special Servicer determines that acceptance of any offer would not be
in the best economic interests of the Trust, the Special Servicer shall accept
the highest cash offer received from any Person that constitutes a fair price
for such Mortgage Loan. In the absence of any offer determined as provided below
to be fair, the Special Servicer shall proceed with respect to such Defaulted
Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with
the Servicing Standard.
The Special Servicer shall use its best efforts to solicit offers
for each REO Property in such manner as will be reasonably likely to realize a
fair price within the time period provided for by Section 3.16(a). The Special
Servicer shall accept the first (and, if multiple offers are received
contemporaneously, highest) cash offer received from any Person that constitutes
a fair price (determined pursuant to Section 3.18(e) below) for such REO
Property. If the Special Servicer reasonably believes that it will be unable to
realize a fair price (determined pursuant to Section 3.18(e) below) for any REO
Property within the time constraints imposed by Section 3.16(a), the Special
Servicer shall dispose of such REO Property upon such terms and conditions as
the Special Servicer shall deem necessary and desirable to maximize the recovery
thereon under the circumstances and, in connection therewith, shall accept the
highest outstanding cash offer, regardless of from whom received.
The Special Servicer shall give the Trustee and the Master Servicer
not less than five Business Days' prior written notice of its intention to sell
any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No
Interested Person shall be obligated to submit an offer to purchase any such
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
respective Affiliates may make an offer for or purchase any Defaulted Mortgage
Loan or any REO Property pursuant hereto.
(e) Whether any cash offer constitutes a fair price for any
Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of
Section 3.18(d), shall be determined by the Special Servicer or, if such cash
offer is from the Special Servicer, an independent contractor hired by the
Special Servicer or an Affiliate of such Person, by the Trustee. In determining
whether any offer received from an Interested Person represents a fair price for
any such Mortgage Loan or REO Property, the Trustee shall be supplied with and
shall rely on the most recent Appraisal or updated Appraisal conducted in
accordance with this Agreement within the preceding 12-month period or, in the
absence of any such Appraisal, on a narrative appraisal prepared by a Qualified
Appraiser, retained by the Special Servicer. Such appraiser shall be selected by
the Special Servicer if neither the Special Servicer nor any Affiliate thereof
is making an offer with respect to a Defaulted Mortgage Loan or REO Property and
shall be selected by the Trustee if the Special Servicer or an Affiliate thereof
is making such an offer. The cost of any such narrative appraisal shall be
advanced by the Master Servicer, at the direction of the Special Servicer, and
shall constitute a Servicing Advance. When any Interested Person is among those
making an offer with respect to a Defaulted Mortgage Loan or REO Property, the
Special Servicer shall require that all offers be submitted in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the
offered amount. In determining whether any offer from a Person other than the
Special Servicer, an independent contractor hired by the Special Servicer or an
Affiliate of such Person, constitutes a fair price for any such Mortgage Loan or
REO Property, the Special Servicer shall take into account (in addition to the
results of any Appraisal, updated Appraisal or narrative Appraisal that it may
have obtained pursuant to this Agreement within the prior 12 months), and in
determining whether any offer from an Interested Person constitutes a fair price
for any such Mortgage Loan or REO Property, any appraiser or other expert in
real estate matters shall be instructed to take into account, as applicable,
among other factors, the period and amount of any delinquency on the affected
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation to
dispose of any REO Property within the time period specified in Section 3.16(a).
Notwithstanding the other provisions of this Section 3.18, no cash offer from
any Interested Person or any Affiliate thereof in an amount less than the
related Purchase Price shall constitute a fair price for any Defaulted Mortgage
Loan or REO Property unless such offer is the highest cash offer received and at
least two additional offers (not including the offers of Interested Persons or
any Affiliates thereof) have been received from Independent third parties
reflecting prices less than the related Purchase Price. The Purchase Price for
any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair
price.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Mortgage Loan or REO Property, and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective offerors, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating offers without obligation to deposit such
amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or
any REO Property shall be final and without recourse to the Trustee or the Trust
(except such recourse to the Trust imposed by those representations and
warranties typically given in such transactions, any prorations applied thereto
and any customary closing matters), and if such sale is consummated in
accordance with the terms of this Agreement, none of the Special Servicer, the
Master Servicer or the Trustee shall have any liability to any Certificateholder
with respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the
REMIC Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(h) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, the Special Servicer shall not be obligated to accept the highest
cash offer if the Special Servicer determines, in accordance with the Servicing
Standard, that rejection of such offer would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash offer (from
any Person other than itself or an Affiliate) if it determines, in accordance
with the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations or the terms
(other than price) offered by the prospective buyer making the lower offer are
more favorable).
SECTION 3.19 Additional Obligations of the Master Servicer and the
Special Servicer.
(a) The Master Servicer shall maintain at its Primary Servicing
Office and shall, upon reasonable advance written notice, make available during
normal business hours for review by each Rating Agency and by any
Certificateholder or Certificate Owner or any Person identified to the Master
Servicer as a prospective transferee of a Certificate or an interest therein,
copies of the Servicing Files; provided that, if the Master Servicer in its
reasonable, good faith determination believes that any item of information
contained in such Servicing Files is of a nature that it should be conveyed to
all Certificateholders at the same time, it shall, as soon as reasonably
possible following its receipt of any such item of information, disclose such
item of information to the Trustee as part of the reports to be delivered to the
Trustee by the Master Servicer pursuant to Section 4.02(b), and until the
Trustee has either disclosed such information to all Certificateholders in a
Distribution Date Statement or has properly filed such information with the
Commission on behalf of the Trust under the Exchange Act, the Master Servicer
shall be entitled to withhold such item of information from any
Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, that the Master
Servicer shall not be required to make particular items of information contained
in the Servicing File for any Mortgage Loan available to any Person if the
disclosure of such particular items of information is expressly prohibited by
the provisions of any related Mortgage Loan documents. Except as set forth in
the provisos to the preceding sentence, copies of all or any portion of any
Servicing File are to be made available by the Master Servicer upon request;
however, the Master Servicer shall be permitted to require payment of a sum
sufficient to cover the reasonable out-of-pocket costs and expenses of providing
such service (other than with respect to the Rating Agencies). The Special
Servicer shall, as to each Specially Serviced Mortgage Loan and REO Property,
promptly deliver to the Master Servicer a copy of each document or instrument
added to the related Servicing File, and the Master Servicer shall in no way be
in default under this Section 3.19(a) solely by reason of the Special Servicer's
failure to do so.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, unless
the Depositor directs otherwise, (a) in the case of Certificate Owners, a
written confirmation executed by the requesting Person, in form reasonably
satisfactory to the Master Servicer, generally to the effect that such Person is
a beneficial holder of Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person generally to the effect that such Person is a
prospective purchaser of a Certificate or an interest therein, is requesting the
information for use in evaluating a possible investment in Certificates and will
otherwise keep such information confidential. All Certificateholders, by the
acceptance of their Certificates, shall be deemed to have agreed to keep such
information confidential, except to the extent that the Depositor grants written
permission to the contrary. The Master Servicer shall not be liable for the
dissemination of information in accordance with this Section 3.19(a).
(b) Within 60 days (or within such longer period as the Master
Servicer or the Special Servicer, as applicable, is (as certified thereby to the
Trustee in writing) diligently and in good faith proceeding to obtain the
Appraisal referred to below) after the earliest of (i) the date on which any
Mortgage Loan becomes a Modified Mortgage Loan, (ii) the 60th day following the
occurrence of any uncured delinquency in Monthly Payments with respect to any
Mortgage Loan, (iii) the date on which a receiver is appointed in respect of the
Mortgaged Property securing any Mortgage Loan, (iv) the date on which the
Mortgagor under any Mortgage Loan becomes the subject of bankruptcy or
insolvency proceedings, and (v) the date on which the Mortgaged Property
securing any Mortgage Loan becomes an REO Property (each such Mortgage Loan and
any related REO Loan, until it ceases to be such in accordance with the
following paragraph, a "Required Appraisal Loan"), the Master Servicer or
Special Servicer, as applicable, shall obtain an Appraisal of the related
Mortgaged Property; unless an Appraisal thereof had previously been received
within the prior twelve months. The cost of such Appraisal shall be advanced by
the Master Servicer, subject to its being entitled to reimbursement therefor as
a Servicing Advance as provided in Section 3.05(a), such Advance to be made at
the direction of the Special Servicer when the Appraisal is received by the
Special Servicer. For purposes of this Section 3.19(b), an Appraisal may, in the
case of any Mortgage Loan with an outstanding principal balance of less than
$2,000,000 only, consist solely of an internal valuation performed by the
Special Servicer.
With respect to each Required Appraisal Loan (unless such loan has
become a Corrected Mortgage Loan and has remained current for twelve consecutive
Monthly Payments, and no other Servicing Transfer Event has occurred with
respect thereto during such twelve months, in which case it will cease to be a
Required Appraisal Loan), the Special Servicer shall, within 30 days of each
anniversary of such loan's becoming a Required Appraisal Loan, order an update
of the prior Appraisal (the cost of which shall be advanced by the Master
Servicer as a Servicing Advance at the direction of the Special Servicer,
subject to the Master Servicer's right to reimbursement as provided in
Section 3.05(a)). Based upon such Appraisal, the Special Servicer shall
redetermine and report to the Trustee and the Master Servicer the Appraisal
Reduction Amount, if any, with respect to such loan.
(c) The Master Servicer and the Special Servicer shall each deliver
to the other and to the Trustee (for inclusion in the Mortgage File), the Rating
Agencies and, upon request of a Class C, Class D, Class E, Class F, and Class G
Certificateholder, such Holder, copies of all Appraisals, environmental reports
and engineering reports (or, in each case, updates thereof) obtained with
respect to any Mortgaged Property or REO Property.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated, to reimburse the Special Servicer for any Servicing Advances made by
the Special Servicer, but not previously reimbursed (whether pursuant to
Section 3.05(a), this Section 3.19(d) or otherwise) to the Special Servicer, and
to pay the Special Servicer interest thereon at the Reimbursement Rate from the
date made to, but not including, the date of reimbursement. Such reimbursement
and any accompanying payment of interest shall be made within ten (10) days of
the request therefor by wire transfer of immediately available funds to an
account designated by the Special Servicer. Upon the Master Servicer's
reimbursement to the Special Servicer of any Servicing Advance and payment to
the Special Servicer of interest thereon, all in accordance with this
Section 3.19(d), the Master Servicer shall for all purposes of this Agreement be
deemed to have made such Servicing Advance at the same time as the Special
Servicer originally made such Advance, and accordingly, the Master Servicer
shall be entitled to reimbursement for such Advance, together with Advance
Interest thereon, at the same time, in the same manner and to the same extent as
the Master Servicer would otherwise have been entitled if it had actually made
such Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer (i) is required under any other provision of
this Agreement to direct the Master Servicer to make a Servicing Advance or
(ii) is otherwise aware a reasonable period in advance that it is reasonably
likely that the Special Servicer will incur a cost or expense that will, when
incurred, constitute a Servicing Advance, the Special Servicer shall (in the
case of clause (i) preceding), and shall use reasonable efforts to (in the case
of clause (ii) preceding), request that the Master Servicer make such Servicing
Advance, such request to be made in writing and in a timely manner that does not
materially and adversely affect the interests of any Certificateholder and at
least five Business Days prior to the date on which failure to make such
Servicing Advance would (with notice from the Trustee regardless of whether such
notice is actually received) constitute an Event of Default pursuant to
Section 7.01(a)(v); provided, however, that the Special Servicer shall have an
obligation to make any Emergency Advance or any other Servicing Advance with
respect to which it would, under the circumstances, be inconsistent with the
Servicing Standard for the Special Servicer to request that the Master Servicer
make such Servicing Advance (in lieu of making such Servicing Advance itself and
seeking reimbursement therefor as provided herein); and provided, further, that
the Special Servicer shall, with respect to Specially Serviced Mortgage Loans
and REO Properties, make any Servicing Advance that it fails to timely request
the Master Servicer to make. The Master Servicer shall have the obligation to
make any such Servicing Advance that it is requested by the Special Servicer to
make within five Business Days of the Master Servicer's receipt of such request.
Subject to the foregoing, the Special Servicer shall be relieved of any
obligations with respect to a Servicing Advance that it timely requests the
Master Servicer to make (regardless of whether or not the Master Servicer shall
make such Servicing Advance), other than an Emergency Advance or any other
Servicing Advance with respect to which it would, under the circumstances, be
inconsistent with the Servicing Standard for the Special Servicer to request
that the Master Servicer make such Servicing Advance (in lieu of making such
Servicing Advance itself and seeking reimbursement therefor as provided herein).
The Master Servicer shall be entitled to reimbursement for any Servicing Advance
made by it at the direction of the Special Servicer, together with Advance
Interest thereon, at the same time, in the same manner and to the same extent as
the Master Servicer is entitled with respect to any other Servicing Advance made
thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d) or
any other provision of this Agreement to the contrary, the Master Servicer shall
not be required to reimburse the Special Servicer for, or make at the Special
Servicer's direction, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to reimburse it for or make hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer and the Trustee in writing of such
determination. Such notice shall not obligate the Special Servicer to make such
Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate of (A) all Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of the NationsBank Mortgage Loans and
(B) all Uncovered Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of the Credit Lease Loans during the
most recently ended Collection Period, and (ii) that portion of its aggregate
Master Servicing Fee for the related Collection Period that is, in the case of
each and every Mortgage Loan and related REO Loan, calculated at 0.01% per
annum, together with the aggregate Prepayment Interest Excesses received during
such Collection Period.
(f) Except under the same circumstances that it would be permitted
to waive a prepayment lockout provision in the subject Mortgage Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Mortgage Loan, partially or in its
entirety, if the Mortgagor would be prohibited from doing so without such
consent.
(g) The Master Servicer shall not exercise any discretionary right
it has with respect to any Mortgage Loan pursuant to the related Mortgage Note
or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Mortgage Loan except in the case of a default
thereunder.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer and the Special Servicer each may,
consistent with the Servicing Standard, agree to any modification, waiver or
amendment of any term of, forgive or defer the payment of interest (including,
without limitation, Default Interest) on and principal of, forgive late payment
charges and Prepayment Premiums on, permit the release, addition or substitution
of collateral securing, and/or permit the release of the Mortgagor on or any
guarantor of any Mortgage Loan it is required to service and administer
hereunder (except that any assumption with respect to a Mortgage Loan serviced
and administered by the Master Servicer must also be consented to by the Special
Servicer), without the consent of the Trustee or any Certificateholder, subject,
however, to each of the following limitations, conditions and restrictions:
(i) other than as expressly provided in Section 3.02 (with respect
to Default Charges) and Section 3.08 (with respect to due-on-sale and
due-on-encumbrance clauses), neither the Master Servicer nor the Special
Servicer shall agree to any modification, waiver or amendment of any term
of, or take any of the other acts referenced in this Section 3.20(a) with
respect to, any Mortgage Loan it is required to service and administer
hereunder that would affect the amount or timing of any related payment
of principal, interest or other amount payable thereunder or, in the
Master Servicer's or the Special Servicer's good faith and reasonable
judgment, materially alter the security for such Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon or, to the extent
required by the REMIC Provisions, materially increase, substitute or
otherwise alter the collateral for the Mortgage Loan (other than the
alteration or construction of improvements thereon) or any guarantee or
credit enhancement contract with respect thereto (other than the
substitution of a similar commercially available credit enhancement
contract); provided, however, the Special Servicer may agree to any
modification, waiver or amendment of any term of, or take any of the
other acts referenced in this Section 3.20(a) with respect to, a
Specially Serviced Mortgage Loan that would have any such effect, but
only if a material default on such Mortgage Loan has occurred or, in the
Special Servicer's reasonable and good faith judgment, a default in
respect of payment on such Mortgage Loan is reasonably foreseeable, and
such modification, waiver, amendment or other action is reasonably likely
to produce a greater recovery to Certificateholders (as a collective
whole) on a present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders to be
performed at the related Net Mortgage Rate), than would liquidation;
(ii) the Special Servicer may not, in connection with any particular
extension, extend the maturity date of any Specially Serviced Mortgage
Loan beyond August 20, 2028, or beyond the date which is 10 years prior
to the expiration date of any related Ground Lease;
(iii) unless the proviso in Section 3.20(a)(i) above applies,
neither the Master Servicer nor the Special Servicer shall make or permit
any modification, waiver or amendment of any term of, referenced in this
Section 3.20(a) or in Section 3.08 with respect to, any Mortgage Loan not
otherwise permitted by this Section 3.20(a) or in Section 3.08 that would
constitute a "significant modification" of such Mortgage Loan within the
meaning of Treasury Regulations Section 1.860G-2(b) (neither the Master
Servicer nor the Special Servicer shall be liable for decisions made
under this subsection which were made in good faith and, unless it would
constitute bad faith or negligence to do so, each of the Master Servicer
and the Special Servicer may rely on Opinions of Counsel in making such
decisions);
(iv) neither the Master Servicer nor the Special Servicer shall
permit any Mortgagor to add or substitute any collateral for an
outstanding Mortgage Loan, which additional or substitute collateral
constitutes real property, unless (A) the Special Servicer shall have
first determined in accordance with the Servicing Standard, based upon a
Phase I Environmental Assessment (and such additional environmental
testing as the Special Servicer deems necessary and appropriate) prepared
by an Independent Person who regularly conducts Phase I Environmental
Assessments (and such additional environmental testing), at the expense
of the Mortgagor, that such additional or substitute collateral is in
compliance with applicable environmental laws and regulations and that
there are no circumstances or conditions present with respect to such new
collateral relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then applicable
environmental laws and/or regulations and (B) the Master Servicer or the
Special Servicer, as the case may be, have obtained written confirmation
from each Rating Agency that such substitution will not result in the
withdrawal, downgrade or qualification, as applicable, of any rating then
assigned to any Class of Certificates;
(v) neither the Master Servicer nor the Special Servicer shall
release any collateral securing an outstanding Mortgage Loan (including,
without limitation, as part of a substitution of collateral), except in
connection with a payment in full or a defeasance pursuant to the terms
of the related Mortgage Loan and this Agreement or, subject to the other
provisions of this Section 3.20, a discounted payoff of such Mortgage
Loan, or except as provided in Section 3.09(d), or except where Section
3.20(a)(iv) applies, and the Rating Agencies have been notified in
writing and (A) either (1) the use of the collateral to be released will
not, in the Master Servicer's or Special Servicer's, as the case may be,
good faith and reasonable judgment, materially and adversely affect the
Net Operating Income being generated by or the use of the related
Mortgaged Property, or (2) there is a corresponding principal paydown of
such Mortgage Loan in an amount at least equal to, or a delivery of
substitute collateral with an appraised value at least equal to, the
appraised value of the collateral to be released, (B) the remaining
Mortgaged Property and any substitute collateral is, in the Master
Servicer's or Special Servicer's, as the case may be, good faith and
reasonable judgment, adequate security for the remaining Mortgage Loan
and (C) the Rating Agencies have each confirmed in writing that such
release and/or substitution would not result in the downgrade,
qualification or withdrawal, as applicable, of the rating then assigned
to any Class of Certificates; and
(vi) except to the extent it determines that it is required in the
best interests of all Certificateholders in accordance with the Servicing
Standard, the Special Servicer shall not agree to any modification,
waiver or amendment of any term of, or take any of the other acts
referenced in this Section 3.20(a), with respect to any Specially
Serviced Mortgage Loan if such action would not be generally consistent
with the Asset Status Report approved by the Directing Certificateholder
or the Certificateholders, as applicable in accordance with Section 3.21
unless it shall have proposed such action to the Directing
Certificateholder in the same manner as the Asset Status Report as
provided in Section 3.21(e).
provided that (1) the limitations, conditions and restrictions set forth in
clauses (i), (ii), (iv), (v) and (vi) above shall not apply to any of the acts
referenced in this Section 3.20(a) in respect of any Mortgage Loan that either
occurs automatically, or results from the exercise of a unilateral option by the
related borrower within the meaning of Treasury Regulations Section
1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan in
effect on the Closing Date, and (2) notwithstanding clauses (i) through (vi)
above, neither the Master Servicer nor the Special Servicer shall be required to
oppose the confirmation of a plan in any bankruptcy or similar proceeding
involving a Mortgagor if in their reasonable and good faith judgment such
opposition would not ultimately prevent the confirmation of such plan or one
substantially similar.
(b) The Special Servicer shall have no liability to the Trust, the
Certificateholders or any other Person if its analysis and determination that
the modification, waiver, amendment or other action contemplated by
Section 3.20(a) is reasonably likely to produce a greater recovery to
Certificateholders on a present value basis than would liquidation, should prove
to be wrong or incorrect, so long as the analysis and determination were made on
a reasonable basis in good faith by the Special Servicer and the Special
Servicer has complied with the Servicing Standard in ascertaining the pertinent
facts. Each such determination shall be evidenced by an Officer's Certificate to
such effect to be delivered by the Special Servicer to the Trustee. The Special
Servicer shall include with any such Officer's Certificate the appraisals and
other supporting documentation forming the basis for its conclusion.
(c) Any payment of interest, which is deferred pursuant to
Section 3.20(a), shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer and the Special Servicer each may, as a
condition to its granting any request by a Mortgagor for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within the Master Servicer's or Special Servicer's, as the case may be,
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and is permitted by the terms of this Agreement, require
that such Mortgagor pay to it, as additional servicing compensation, a
reasonable fee relating to such consent, modification, waiver or indulgence (not
to exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for
the additional services performed in connection with such request, together with
any related costs and expenses incurred by it.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Mortgage Loans pursuant to the preceding
subsections of this Section 3.20 shall be in writing. Each of the Master
Servicer and the Special Servicer shall notify the other such party and the
Trustee, in writing, of any modification, waiver, amendment or other action
entered into or taken in respect of any Mortgage Loan pursuant to this
Section 3.20 and the date thereof, and shall deliver to the Trustee or the
related Custodian for deposit in the related Mortgage File (with a copy to the
other such party), an original counterpart of the agreement relating to such
modification, waiver, amendment or other action, promptly (and in any event
within 10 Business Days) following the execution thereof. In addition, following
the execution of any modification, waiver or amendment agreed to by the Special
Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver
to the Master Servicer and the Trustee an Officer's Certificate setting forth in
reasonable detail the basis of the determination made by it pursuant to
clause (i) of Section 3.20(a).
(f) Notwithstanding anything to the contrary contained in this
Agreement, neither the Master Servicer or the Special Servicer shall consent to
the modification of any Credit Lease without the prior written consent of the
Enhancement Insurer, to the extent the related Credit Lease Loan has a Lease
Enhancement Policy, and/or the Extension Insurer, to the extent the related
Credit Lease Loan has an Extended Amortization Policy.
SECTION 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Master Servicer shall promptly give
notice thereof, and deliver the related Servicing File, to the Special Servicer
and shall use its best efforts to provide the Special Servicer with all
information, documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. The Master Servicer shall use its best efforts to comply with the
preceding sentence within five Business Days of the occurrence of each related
Servicing Transfer Event. The Master Servicer shall deliver to each Class C,
Class D, Class E, Class F and Class G Certificateholders that shall have
requested a copy of any such notice a copy of the notice of such Servicing
Transfer Event provided by the Master Servicer to the Special Servicer pursuant
to this Section.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan, the Special Servicer shall promptly give notice
thereof, and return the related Servicing File, to the Master Servicer. Upon
giving such notice, and returning such Servicing File, to the Master Servicer,
the Special Servicer's obligation to service such Mortgage Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan, shall terminate, and the obligations of the Master Servicer to
service and administer such Mortgage Loan shall resume.
Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to Specially Serviced Mortgage Loans, provided that the Special
Servicer shall establish procedures for the Master Servicer as to the
application of receipts and tendered payments and shall have the exclusive
responsibility for and authority over all contacts (including billing and
collection) with and notices to Mortgagors and similar matters relating to each
Specially Serviced Mortgage Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the Master Servicer with
respect to any such Mortgage Loan upon its becoming a Corrected Mortgage Loan,
the Master Servicer and the Special Servicer shall each transfer to the other,
as and when applicable, the servicing of all other Cross-Collateralized Mortgage
Loans constituting part of the same Group; provided that no Cross-Collateralized
Mortgage Loan may become a Corrected Mortgage Loan at any time that a continuing
Servicing Transfer Event exists with respect to another Cross-Collateralized
Mortgage Loan in the same Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents contemplated by the
definition of "Mortgage File" and generated while such Mortgage Loan is a
Specially Serviced Mortgage Loan, for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Mortgagor generated while such Mortgage Loan is a Specially Serviced
Mortgage Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in
the event that the Master Servicer and the Special Servicer are the same Person,
all notices, certificates, information, consents and documents required to be
given or delivered by the Master Servicer to the Special Servicer or vice versa
shall be deemed to be given or delivered, as the case may be, without the
necessity of any action on such Person's part.
(d) No later than thirty (30) days after a Servicing Transfer Event
for a Mortgage Loan, the Special Servicer shall deliver to each Rating Agency,
the Master Servicer, the Trustee and the Directing Certificateholder a report
(the "Asset Status Report") with respect to such Mortgage Loan and the related
Mortgaged Property. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by
reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 3.09(c)), consistent with
the Servicing Standards, that are applicable to the exercise of remedies
as aforesaid and to the enforcement of any related guaranties or other
collateral for the related Mortgage Loan and whether outside legal
counsel has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and
returned to the Master Servicer for regular servicing or otherwise
realized upon;
(v) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof; and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
(e) If within ten (10) Business Days of receiving an Asset Status
Report, the Directing Certificateholder does not disapprove such Asset Status
Report in writing, the Special Servicer shall implement the recommended action
as outlined in such Asset Status Report; provided, however, that the Special
Servicer may not take any action that is contrary to applicable law or the terms
of the applicable Mortgage Loan documents. If the Directing Certificateholder
disapproves such Asset Status Report, the Special Servicer will revise such
Asset Status Report and deliver to the Directing Certificateholder, the Rating
Agencies, the Trustee and the Master Servicer a new Asset Status Report as soon
as practicable, but no later than thirty (30) days after such disapproval. The
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(e) until the Directing Certificateholder shall fail to
disapprove such revised Asset Status Report in writing within ten (10) Business
Days of receiving such revised Asset Status Report or until the Special Servicer
makes one of the determinations described below. The Special Servicer may, from
time to time, modify any Asset Status Report it has previously delivered and
implement such report, provided such report shall have been prepared, reviewed
and not rejected pursuant to the terms of this Section. Notwithstanding the
foregoing, the Special Servicer (i) shall, following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action set forth in such Asset Status Report before the expiration of a ten (10)
Business Day period if the Special Servicer has reasonably determined that
failure to take such action would materially and adversely affect the interests
of the Certificateholders and it has made a reasonable effort to contact the
Directing Certificateholder and (ii) in any case, shall determine whether such
disapproval is not in the best interest of all the Certificateholders pursuant
to the Servicing Standard. Upon making such determination under clause (ii) of
the preceding sentence that such disapproval is not in the best interest of all
the Certificateholders, the Special Servicer shall request a vote by all
Certificateholders. To accomplish such vote, the Special Servicer shall notify
the Trustee of such request and deliver to the Trustee a proposed notice to
Certificateholders which shall include a copy of the Asset Status Report, and
the Trustee shall send such notice to all Certificateholders. If the majority of
such Certificateholders, as determined by Voting Rights, fail, within five (5)
days of the Trustee's sending such notice, to reject such Asset Status Report,
the Special Servicer shall implement the same. If the Asset Status Report is
rejected by the Certificateholders, the Special Servicer shall revise such Asset
Status Report as described above in Section 3.21(e). The Trustee shall be
entitled to reimbursement from the Trust Fund for the reasonable expenses of
providing such notices.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction of the Directing Certificateholder shall (A) require or
cause the Special Servicer to violate the terms of a Specially Serviced Mortgage
Loan, applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standards and to
maintain the REMIC status of each REMIC, or (B) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (C) expose the Master Servicer, the Special Servicer, the
Depositor, the Mortgage Loan Seller, the Trust Fund, the Trustee or their
officers, directors, employees, agents or each Person, if any, who controls such
Person within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, to any claim, suit or liability, or
(D) materially expand the scope of the Special Servicer's or the Master
Servicer's responsibilities under this Agreement.
SECTION 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and, with the consent of the Depositor, the
Special Servicer, may each enter into Sub-Servicing Agreements to provide for
the performance by third parties of any or all of its obligations hereunder,
provided that, in each case, the Sub-Servicing Agreement: (i) is not
inconsistent with this Agreement; (ii) expressly or effectively provides that if
the Master Servicer or Special Servicer, as the case may be, shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), any successor to the Master Servicer or the
Special Servicer, as the case may be, hereunder (including the Trustee if the
Trustee has become such successor pursuant to Section 7.02) may thereupon either
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or Special Servicer, as the
case may be, under such agreement or, subject to the provisions of
Section 3.22(d), terminate such rights and obligations, in either case without
payment of any fee except as set forth in Section 3.22(d); (iii) in the case of
a Sub-Servicing Agreement entered into by the Master Servicer, expressly or
effectively provides that such agreement shall be suspended with respect to any
Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a
Specially Serviced Mortgage Loan (but only until such time as such Mortgage Loan
becomes a Corrected Mortgage Loan) and, except as set forth in Section 3.22(d),
the Sub-Servicer shall not receive or accrue an entitlement to any sub-servicing
compensation in respect of a Specially Serviced Mortgage Loan or an REO Loan;
(iv) in the case of a Sub-Servicing Agreement entered into by the Special
Servicer, relates only to Specially Serviced Mortgage Loans or REO Properties
and expressly or effectively provides that such agreement shall terminate with
respect to any such Mortgage Loan that becomes a Corrected Mortgage Loan; and
(v) in the case of a Sub-Servicing Agreement entered into by the Master
Servicer, provides that the related Sub-Servicer shall comply with all
reasonable requests for additional information made by the Master Servicer and,
further, provides that the failure of the related Sub-Servicer to furnish the
Master Servicer on a timely basis with any required reports, statements or other
information, including without limitation, the reports referred to in
Section 3.12, either (A) shall permit the Master Servicer to make necessary
inquiries of the related borrower directly or (B) shall (subject to a cure
period not to exceed 60 days) constitute an event of default thereunder for
which the Master Servicer may terminate such Sub-Servicer without payment of any
termination fee (it being understood that notwithstanding anything to the
contrary in this clause (v), the obligations of a Sub-Servicer in respect of the
second sentence of Section 3.12(b) hereof may be limited to the provision of
reports as agreed between the Master Servicer and such Sub-Servicer and response
to reasonable inquiries from the Master Servicer with respect thereto).
References in this Agreement to actions taken or to be taken by the Master
Servicer or the Special Servicer, as the case may be, include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer or the
Special Servicer, as the case may be, hereunder to make Advances shall be deemed
to have been advanced by the Master Servicer or the Special Servicer, as the
case may be, out of its own funds and, accordingly, such Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer or the Special Servicer, as the
case may be, and, for so long as they are outstanding, such Advances shall
accrue interest in accordance with Section 3.11(f) and/or Section 4.03(d), such
interest to be allocable between the Master Servicer or the Special Servicer, as
the case may be, and such Sub-Servicer as they may agree. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when a Sub-Servicer retained by it receives such
payment. The Master Servicer and the Special Servicer each shall notify the
other such party, the Trustee and the Depositor in writing promptly of the
appointment by it of any Sub-Servicer, and shall deliver to the Trustee copies
of all Sub-Servicing Agreements, and any amendments thereto and modifications
thereof, entered into by it promptly upon its execution and delivery of such
documents; provided that the foregoing requirements set forth in this sentence
shall not apply in the case of the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II hereto or in the case of the
Sub-Servicers thereunder.
(b) Each Sub-Servicer (i) shall be authorized to transact business
in the state or states in which the Mortgaged Properties for the Mortgage Loans
it is to service are situated, if and to the extent required by applicable law,
and (ii) shall be an approved conventional seller/servicer of multifamily
mortgage loans for Xxxxxxx Mac or Xxxxxx Mae or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust) each monitor the performance and enforce the
obligations of its Sub-Servicers under the related Sub-Servicing Agreements.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the terms of this Agreement, and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer or the Special Servicer, as the case may
be, in its good faith business judgment, would require were it the owner of the
Mortgage Loans. Promptly upon becoming aware of a default under any
Sub-Servicing Agreement to which it is a party, the Master Servicer or the
Special Servicer, as the case may be, shall notify the other such party and the
Trustee, and each Class C, Class D, Class E, Class F and Class G
Certificateholder that shall have requested notice of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II hereto, the initial Master Servicer
hereby agrees that it shall not, in its capacity as Master Servicer, terminate
any Sub-Servicer thereunder without cause. In the event of the resignation,
removal or other termination of the initial Master Servicer (or any successor
Master Servicer) hereunder for any reason, the successor to the initial Master
Servicer (or to such successor Master Servicer) shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination (i) to assume
the rights and obligations of the predecessor Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fee), (ii) to enter into a new Sub-Servicing Agreement with such
Sub-Servicer and on such terms as the new Master Servicer and such Sub-Servicer
shall mutually agree (it being understood that such Sub-Servicer is under no
obligation to accept any such new Sub-Servicing Agreement or to enter into or
continue negotiations with the new Master Servicer) or (iii) to terminate such
Sub-Servicing Agreement without cause, provided that no Sub-Servicer may be
terminated without cause unless it receives Sub-Servicer Termination
Compensation. For purposes hereof, a Sub-Servicer shall receive "Sub-Servicer
Termination Compensation" if any successor Master Servicer elects to terminate
such Sub-Servicer without cause, in which case either of the following shall
occur: (i) such successor Master Servicer shall pay to such Sub-Servicer a fee
(a "Sub-Servicer Termination Fee") in an amount equal to two times the product
of (A) the Primary Servicing Fee Rate in effect under such Sub-Servicing
Agreement at the time of such Sub-Servicer's termination and (B) the
then-current outstanding principal balance of the Mortgage Loans serviced by
such Sub-Servicer or (ii) such successor Master Servicer shall agree to pay such
Sub-Servicer an interest-only strip (the "Termination Strip") out of its related
Master Servicing Fees for each Mortgage Loan serviced by such Sub-Servicer at
the time of such Sub-Servicer's termination (such strip to be calculated in the
same manner as the related Master Servicing Fees, but at a per annum rate equal
to the applicable Primary Servicing Fee Rate minus 0.04%). Any subsequent
successor Master Servicer shall be obligated to pay any such Termination Strip
agreed to by a predecessor Master Servicer. Nothing in the foregoing provisions
of this Section 3.22(d) shall limit the ability of the initial or a successor
Master Servicer to terminate a Sub-Servicer at any time for cause; provided,
however, that the parties hereto understand and agree that the refusal or
failure of a Sub-Servicer to enter into or continue negotiations with a
successor Master Servicer concerning a new Sub-Servicing Agreement shall not
constitute cause for termination. It shall be the corporate obligation (not
reimbursable by the Trust or any of the other parties to this Agreement) of the
Person, who as successor Master Servicer, terminates any Sub-Servicer without
cause, and of its successors and assigns in such capacity (to the extent
contemplated by the second preceding sentence), to pay Sub-Servicer Termination
Compensation to such terminated Sub-Servicer. References in this Section 3.22(d)
to Master Servicer, successor Master Servicer or subsequent successor Master
Servicer shall mean the Trustee, if it is then Master Servicer, successor Master
Servicer or subsequent Master Servicer pursuant to the operation of
Section 7.02.
(e) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at the expense of the transferring party shall, upon request of the
Trustee, deliver to the assuming party all documents and records relating to
such Sub-Servicing Agreement and the Mortgage Loans then being serviced
thereunder and an accounting of amounts collected and held on behalf of it
thereunder, and otherwise use its best efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each remain obligated and liable to the Trustee
and the Certificateholders for the performance of its obligations and duties
under this Agreement in accordance with the provisions hereof to the same extent
and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible.
SECTION 3.23 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.
The Majority Certificateholder of the Controlling Class may at any
time and from time to time replace any existing Special Servicer or any Special
Servicer that has resigned or otherwise ceased to serve as Special Servicer.
Such Majority Certificateholder shall so designate a Person to so serve by the
delivery to the Trustee of a written notice stating such designation, subject to
the approval of the Trustee, which approval shall not be unreasonably withheld.
The Trustee shall, promptly after receiving any such notice, so notify the
Rating Agencies. If the Trustee approves the designated Person (based upon the
servicing qualifications and financial condition of such designated Person) as a
replacement Special Servicer, which approval shall not be unreasonably withheld,
the designated Person shall become the Special Servicer as of the date the
Trustee shall have received: (i) written confirmation from each Rating Agency
stating that if the designated Person were to serve as Special Servicer
hereunder, none of the then-current ratings assigned by such Rating Agency to
the respective Classes of the Certificates would be qualified, downgraded or
withdrawn, as applicable, as a result thereof; (ii) a written acceptance of all
obligations of the Special Servicer under this Agreement, executed by the
designated Person; and (iii) an Opinion of Counsel (at the expense of the Person
designated to become the Special Servicer or at the expense of the Majority
Certificateholder that made the designation) to the effect that the designation
of such Person to serve as Special Servicer is in compliance with this
Section 3.23, that upon the execution and delivery of the written acceptance
referred to in the immediately preceding clause (ii), the designated Person
shall be bound by the terms of this Agreement and that this Agreement shall be
enforceable against the designated Person in accordance with its terms. The
existing Special Servicer shall be deemed to have resigned simultaneously with
such designated Person's becoming the Special Servicer hereunder; provided,
however, that (i) the terminated Special Servicer shall continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the effective date of such resignation, whether in respect of Servicing
Advances or otherwise, (ii) if it was terminated without cause, it shall be
entitled to a portion of certain Workout Fees thereafter received on the
Corrected Mortgage Loans (but only if and to the extent permitted by
Section 3.11(c)), and (iii) it and its directors, officers, employees and agents
shall continue to be entitled to the benefits of Section 6.03, notwithstanding
any such resignation. Such terminated Special Servicer shall cooperate with the
Trustee and the replacement Special Servicer in effecting the termination of its
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the terminated Special Servicer to the REO Account or
delivered to the Master Servicer or that are thereafter received by the
terminated Special Servicer with respect to Specially Serviced Mortgage Loans
and REO Properties.
SECTION 3.24 Confidentiality.
The Master Servicer and the Special Servicer shall each keep
confidential and shall not disclose to any Person other than each other, the
Depositor, the Trustee and the Rating Agencies, without the related
Sub-Servicer's prior written consent, any information which it obtains in its
capacity as Master Servicer or Special Servicer with regard to the Sub-Servicer
(other than the name of the Sub-Servicer) or the Mortgage Loans or any related
Mortgagor including, without limitation, credit information with respect to any
such Mortgagor (collectively, "Confidential Information"), except (i) to the
extent that it is appropriate for the Master Servicer to do so in working with
legal counsel, auditors, taxing authorities or other governmental authorities,
(ii) to the extent required by this Agreement or any Sub-Servicing Agreement,
(iii) to the extent such information is otherwise publicly available, (iv) to
the extent such disclosure is required by law or (v) to the extent such
information is required to be delivered to third parties (including, without
limitation, property inspectors, tax service companies, insurance carriers, and
data systems vendors) in connection with the performance of the Master
Servicer's or the Special Servicer's obligations hereunder. For purposes of this
paragraph, the terms "Master Servicer" and "Special Servicer" shall mean the
divisions or departments of such corporate entities involved in providing
services hereunder and their respective officers, directors and employees, and
shall not include any other divisions or departments, or any Affiliates, of the
Master Servicer or Special Servicer (including without limitation any investor
in any of the Certificates and any such division, department or Affiliate
engaged in the origination of, or investment in, commercial or multifamily
mortgage loans), all of which shall be regarded as Persons not entitled to
Confidential Information.
SECTION 3.25 No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall solicit
or permit any Affiliate to solicit, either directly or indirectly, prepayments
from any Mortgagors under the Mortgage Loans; provided however, that the
foregoing restriction shall not be interpreted to prohibit such solicitation by
a division or department of, or an Affiliate of, the Master Servicer or the
Special Servicer if such solicitation occurs incidentally in the normal course
of business and such solicitation is not conducted, in whole or in part, (i) by
an individual engaged at any time in activities relating to the servicing of
Mortgage Loans or (ii) based upon or otherwise with the benefit of any
information obtained by or through the Master Servicer or Special Servicer or
from documentation relating to the Certificates, including without limitation
any listing of the Mortgage Loans or related Mortgagors or Mortgaged Properties.
Each Sub-Servicing Agreement shall contain a provision identical to the
foregoing with respect to the related Sub-Servicer.
SECTION 3.26 Certain Matters with Respect to Loans Permitting
Defeasance, Franchise Loans and Certain Loans Permitting Additional Debt
(a) With respect to each Mortgage Loan as to which the Master
Servicer shall have the discretion pursuant to the terms thereof to require the
related Mortgagor to post defeasance collateral in lieu of making a permitted
prepayment, the Master Servicer shall so require defeasance, provided such
defeasance complies with Treasury Regulations Section 1.860G-2(a)(8).
(b) The Master Servicer shall use best efforts to enforce any
provision of the related Mortgage Loan documents that require, as a condition to
the exercise by the Mortgagor of its defeasance rights, that the Mortgagor pay
any costs and expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage Loan permit
defeasance, the Master Servicer shall use reasonable efforts consistent with the
Servicing Standard and the Mortgage Loan documents to require the related
Mortgagor to deliver a certification from the Mortgagor's independent certified
public accountants as to the sufficiency of the related treasury securities, and
the Master Servicer shall provide a copy thereof to each Rating Agency.
(d) To the extent that the terms of Mortgage Loan documents permit
defeasance, the Master Servicer shall not approve the form and substance of any
required legal opinion(s) required to be delivered by the related Mortgagor in
connection with such defeasance unless (i) in the case of S&P and Xxxxx'x, each
such Rating Agency shall have confirmed to it in writing that such defeasance
will not result in the withdrawal, downgrade or qualification of the rating of
any Class of Certificates and (ii) in the case of DCR, the requirements of the
following paragraph (e) are satisfied.
(e) With respect to each Mortgage Loan that provides for defeasance,
to the extent permitted by the terms of such Mortgage Loan, the Master Servicer
shall require the related Mortgagor to (i) provide replacement collateral
consisting of U.S. government securities within the meaning of Treas. Reg.
1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments under
the Mortgage Note when due, (ii) deliver a certification from an independent
certified public accounting firm certifying that the replacement collateral is
sufficient to make such payments, (iii) designate a single-purpose entity (if
the related Mortgagor no longer complies) to assume the Mortgage Loan and own
the collateral and (iv) provide an opinion from counsel that the Trustee has a
perfected security interest in the new collateral. If the terms of the Mortgage
Loan permit the Master Servicer to impose the foregoing requirements, a
confirmation from DCR is not required. If, however, the terms of the Mortgage
Loan do not permit the Master Servicer to impose such requirements, the Master
Servicer shall obtain a confirmation from DCR that the certifications and legal
opinions that are required by the Mortgage Loan, as delivered by the related
Mortgagor, will not result in a downgrade or withdrawal of the ratings assigned
by DCR to any Class of Certificates.
(f) To the extent that the terms of a Mortgage relating to a hotel
or restaurant franchise permit the lender thereunder the right to consent to the
change of the franchise association (or "flag") of the related hotel or
restaurant, as the case may be, and subject to the Servicing Standard, the
Master Servicer shall not so consent unless each Rating Agency shall have
confirmed to it in writing that such change will not result in the withdrawal,
downgrade or qualification, as applicable, or any Class of Certificates, subject
to paragraph (h) below.
(g) To the extent that the terms of Mortgage Loan documents permit
the related Mortgagor, subsequent to the Closing Date, to incur additional debt
secured by the Mortgaged Property and condition such incurrence of additional
debt on lender's consent or the execution of a standstill agreement in form and
substance satisfactory to the lender and subject to the Servicing Standard, the
Master Servicer shall not so approve the form and substance of such standstill
agreement unless each Rating Agency shall have confirmed to it in writing that
the form and substance of such standstill agreement is satisfactory to such
Rating Agency and that the execution and delivery of such a standstill agreement
with respect to such additional debt will not result in the withdrawal,
downgrade or qualification, as applicable, of any Class of Certificates;
provided, however, that in the case of DCR, such a confirmation need only be
obtained where the principal balance of the related Mortgage Loan constitutes 2%
or more of the then-outstanding aggregate principal balance of the Mortgage
Pool.
(h) Each transfer, assumption or encumbrance or hotel change of
franchise association requiring the consent of the mortgagee with respect to a
Mortgage Loan having a current outstanding principal balance constituting 2% or
more of the then current principal balance of the Mortgage Pool ("DCR Review
Threshold") will be subject to a confirmation from DCR that granting such
consent will not result in a downgrade or withdrawal of the rating on any Class
of Certificates. In connection with the request for such consent, the Master
Servicer shall prepare and deliver to DCR a memorandum outlining its analysis
and recommendation in accordance with the Servicing Standard together with
copies of all relevant documentation. The Master Servicer shall also prepare and
provide DCR with such memorandum and documentation for all transfer, assumption
and encumbrance consents granted for Mortgage Loans below the DCR Review
Threshold, but for which the Master Servicer's decision will be sufficient and
no confirmation from DCR will be required.
SECTION 3.27 Performance of Borrower Credit Lease Obligations;
Expense Reserve Fund.
(a) (i) In the event the Master Servicer or Special Servicer, as
applicable, has received notice or has actual knowledge of a condition (a
"Credit Lease Termination Condition") with respect to any Mortgaged Property
which may permit the related Tenant to either (A) offset against or xxxxx
payments of rent (including Basic Rent) or (B) terminate such Credit Lease, the
Master Servicer or Special Servicer, as applicable, in connection with its
respective servicing activities hereunder, and to the extent not in violation
with the related Mortgage Loan documents, applicable law and the related Credit
Lease, shall use best efforts consistent with the Servicing Standard to cause
the related Mortgagor to perform the Borrower Credit Lease Obligations in a
manner which would correct the Credit Lease Termination Condition. In the event
the related Mortgagor is required to expend funds in order to correct a Credit
Lease Termination Condition, the Master Servicer shall make withdrawals from the
Borrower Reserve Fund, to the extent of available funds therein for such Credit
Lease Loan and to the extent consistent with the related Mortgage Loan documents
and any Borrower Reserve Agreement, for reimbursement to the related Mortgagor
of such expenses, upon its receipt of a written disbursement request therefor
from the related Mortgagor; provided, however, that, to the extent consistent
with the related Mortgage Loan documents, the Master Servicer or Special
Servicer, as applicable, may, as a condition to the disbursement of such funds
to the Mortgagor, (x) require that the Mortgagor provide the Master Servicer or
Special Servicer, as applicable, with (1) evidence reasonably satisfactory to
the Master Servicer or Special Servicer, as applicable, that such expenses were
actually incurred and paid by the Mortgagor (including, without limitation, the
presentation by the Mortgagor to the Master Servicer or Special Servicer, as
applicable, of lien waivers, invoices, bills and the like) and (2) confirmation
of compliance with the Borrower Credit Lease Obligations from the Tenant in form
satisfactory to the Master Servicer or Special Servicer, as applicable, and (y)
require an inspection by the Master Servicer or Special Servicer, as applicable,
of the related Mortgaged Property at the expense of the related Mortgagor (to be
paid from amounts on deposit in the related Borrower Reserve Fund, if any, to
the extent permitted under the related Mortgage Loan documents) in order to
verify the Mortgagor's compliance with the Borrower Credit Lease Obligations for
which such disbursement is sought; provided, further, that to the extent
consistent with the related Mortgage Loan documents no reimbursement shall be
made to the Mortgagor for expenditures made by the Mortgagor for which no
reserves have been established pursuant to the Borrower Reserve Agreement.
(ii) In the event the related Mortgagor fails to correct a Credit
Lease Termination Condition in a timely manner (as determined by the
Master Servicer or Special Servicer, as applicable, in accordance with
the Servicing Standard), and to the extent not in violation of the
Mortgage Loan documents, applicable law and the related Credit Lease, the
Master Servicer (prior to a Servicing Transfer Event, and thereafter the
Special Servicer) shall use best efforts consistent with the Servicing
Standard to correct the Credit Lease Termination Condition. The Master
Servicer shall make withdrawals from the Borrower Reserve Fund, to the
extent of available funds for such Credit Lease Loan therein and to the
extent consistent with the related Mortgage Loan documents, for payment
to itself or the Special Servicer, as applicable (upon its receipt of a
written disbursement request therefor from the Special Servicer) of the
reasonable expenses required to correct the Credit Lease Termination
Condition.
In the event that any excess funds from the Credit Lease Loan
payments or funds in the Borrower Reserve Fund for such Credit Lease Loan are
insufficient to pay the expenses required to correct a Credit Lease Termination
Condition, the Master Servicer shall be required to pay such shortfall amount
from amounts on deposit in the Expense Reserve Fund, and from its own funds if
such amounts on deposit are insufficient, as a Servicing Advance; provided,
however, that the Master Servicer shall not be so required to advance its own
funds to the extent that such advance is determined to be a Nonrecoverable
Servicing Advance in accordance with Section 3.11(g) herein. The Master Servicer
shall be entitled to withdraw any funds subsequently deposited and held in the
Borrower Reserve Fund in order to pay itself or the Expense Reserve Fund for any
unreimbursed Servicing Advances (including interest thereon at the Reimbursement
Advance Rate) relating to the correction of any Credit Lease Termination
Condition with respect to any related Mortgaged Property.
(b) The Master Servicer shall establish and maintain, in the
Trustee's name, for the benefit of the Certificateholders, a special reserve
account (the "Expense Reserve Fund"), which account shall be used for collection
of the Servicer Reserve Amounts required to be remitted to the Master Servicer
by the Mortgagors. The Expense Reserve Fund shall be an Eligible Account. Funds
on deposit in the Expense Reserve Fund may be invested in Permitted Investments
in accordance with the provisions of Section 3.06 and the investment income
earned therein shall be added to funds on deposit in such account consistent
with Section 3.06(e). The Master Servicer shall give written notice to the
Trustee and the Depositor of the location and account number of the Expense
Reserve Fund and shall notify the Trustee in writing prior to any subsequent
change thereof.
The Master Servicer is permitted to make withdrawals relating to
Credit Lease Loans from the Expense Reserve Fund at any time for the following
purposes:
(i) to reimburse the Fiscal Agent, the Trustee, the Special Servicer
or itself, as applicable, in that order, for any expenses incurred by
such party which are expressly identified in this Agreement as expenses
of the Trust Fund or as provided in Section 3.05(a)(vi) or this Section
3.27;
(ii) to pay any third party for performing services in connection
with any Credit Lease Loans which are expressly identified in this
Agreement as expenses of the Trust Fund, including without limitation (A)
out-of-pocket expenses incurred by the Trustee pursuant to Sections
3.06(c) and 8.05(b); (B) the cost of any Opinion of Counsel obtained
pursuant to Sections 3.09(b)(ii), 3.16(a) or 3.17(b); (C) the cost of any
appraisal made pursuant to Section 3.11(g); (D) the cost of any
indemnification pursuant to Sections 6.03 or 8.05(b); (E) costs incurred
by the Trustee pursuant to Section 10.01(d); and (F) the cost of actions
required by the second paragraph of Section 2.01(b);
(iii) to cover Prepayment Interest Shortfalls relating to Credit
Lease Loans;
(iv) as credit support in the event that the Available Distribution
Amount is insufficient (as a result of losses incurred on the Credit
Lease Loans) on any Distribution Date prior to the termination of the
Trust (after payment of all amounts owed the Master Servicer, Special
Servicer, Trustee and Fiscal Agent) to pay Class Interest Distribution
Amounts, unreimbursed Class Interest Shortfalls, Principal Distribution
Amounts, unreimbursed amounts of Realized Losses to the
Certificateholders, in which event a draw will be made in accordance with
Section 4.01(b) on the Expense Reserve Fund to the extent of the balance
thereof;
(v) to make Advances, including without limitation, any Advances
made pursuant to Sections 3.09(c), 3.18(e) or 3.19(b) (subject in the
case of any such Advance to a determination by the Master Servicer that
such Advance would not constitute a Nonrecoverable Advance), or to
reimburse the Fiscal Agent, the Trustee, the Special Servicer or the
Master Servicer, as applicable, in that order, for any Advances with
interest thereon at the applicable Reimbursement Rate including to the
extent provided in this Agreement any Advances subsequently determined to
be Nonrecoverable Advances; and
(vi) to pay to the related Mortgage Loan Seller for Credit Lease
Loans from time to time (but not more often than four times per calendar
year), from amounts on deposit representing interest or other income or
gain earned on funds deposited therein, an amount reasonably determined
by the Depositor (based on its good faith business judgment) to be
necessary to pay any federal, state or local income taxes imposed with
respect to such interest or investment income; and the Depositor shall
remit to the Master Servicer for deposit into the Expense Reserve Account
any excess over the amount necessary to pay such taxes.
Any amounts paid from the Expense Reserve Fund shall be applied in
the following priority: first, to cover any Trust expenses; second, to cover
credit losses to the Certificateholders (as described in clause (iv) above)
and Prepayment Interest Shortfalls; third, to reimburse the Fiscal Agent,
the Trustee or the Master Servicer (in that order) for any outstanding
Advance made by it which is deemed by the Master Servicer to be a
Nonrecoverable Advance in accordance with this Agreement; fourth, to make
any required Servicing Advances, to the extent the Master Servicer does not
deem such Advance to be a Nonrecoverable Advance, and thereafter to
reimburse the Fiscal Agent, the Trustee, the Special Servicer and the Master
Servicer (in that order), with interest, for any outstanding Servicing
Advances made by it, and fifth; to make any P&I Advances, to the extent the
Master Servicer does not deem such a P&I Advance to be a Nonrecoverable P&I
Advance, and thereafter to reimburse the Fiscal Agent, the Trustee, the
Special Servicer and the Master Servicer (in that order), with interest, for
any outstanding P&I Advance made by it. To the extent that at any time there
are unreimbursed Servicing Advances outstanding from the Expense Reserve
Fund and funds are required to cover any amounts identified in first through
third above, or there are xxxxxxxxxxxx X&X Advances outstanding from the
Expense Reserve Fund and funds are required to cover amounts identified in
first through fourth above, the Master Servicer (or, if it fails to do so,
the Trustee or the Fiscal Agent) shall make such Advance by reimbursing the
Expense Reserve Fund therefor, with interest thereon at the applicable
Advance Rate, to the extent the Master Servicer does not determine that such
Advance would be a Nonrecoverable Advance in accordance with the terms of
this Agreement, in an amount necessary to pay any such amount with a higher
priority, whereupon the Master Servicer, the Trustee or the Fiscal Agent, as
applicable, will be treated as having made such Advance in the first
instance, with a right to receive interest from the date such Advance was
initially made. No reimbursement of an Advance from the Expense Reserve Fund
pursuant to this paragraph, and no making of an Advance by the Master
Servicer, the Trustee or the Fiscal Agent by making a deposit into the
Expense Reserve Fund pursuant to this paragraph in respect of an Advance
previously made, shall be considered a new Advance for purposes of
determining distributions, deposits into the Certificate Account or
withdrawals from the Certificate Account, but shall merely be an adjustment
of the source of any such Advance, which shall otherwise be considered to
remain outstanding.
Any requests for withdrawals from the Expense Reserve Fund,
including withdrawals made by the Master Servicer, shall be accompanied by a
certificate of a Responsible Officer of the Trustee or a certificate of a
Servicing Officer of the Master Servicer or Special Servicer, as applicable,
which sets forth the amount of the expense to be paid or reimbursed, as
appropriate, the nature of the expense, and the express provision in this
Agreement which entitles such party to payment or reimbursement from the Trust
Fund. The certificate required by the immediately preceding sentence shall be
delivered to the Trustee and the Depositor.
The Expense Reserve Fund shall be an "outside reserve fund" within
the meaning of the REMIC Provisions and shall be beneficially owned by CLF for
federal income tax purposes and which shall be taxable on all income earned
thereon. All reimbursements from the Trust Fund to the Expense Reserve Fund
shall be considered to be made by REMIC I to CLF, as beneficial owner thereof.
Upon the termination of the Trust Fund, any funds on deposit in the Expense
Reserve Fund shall be remitted to CLF.
SECTION 3.28 Maintenance of Lease Enhancement Policies.
Each of the Master Servicer and the Special Servicer hereby agrees
to use reasonable best efforts to abide by the terms and conditions precedent to
payment of claims under any Lease Enhancement Policies and to use best efforts
to take all such action as may be required to comply with the terms and
provisions of such policies in order to maintain, in full force and effect, such
Lease Enhancement Policies, including, but not limited to, (i) notifying the
insurer in writing as soon as reasonably practicable, but in any event within
three Business Days, after the Master Servicer or the Special Servicer, as
applicable, first has actual knowledge or receives written notification of the
commencement of a Condemnation (as defined in the Lease Enhancement Policy)
proceeding with respect to any Mortgaged Property covered by a Lease Enhancement
Policy, (ii) notifying the insurer in writing as soon as reasonably practicable,
but in any event within three Business Days, after the Master Servicer or the
Special Servicer, as applicable, first has actual knowledge or receives written
notification of the occurrence of Substantial Physical Damage (as defined in the
Lease Enhancement Policy) with respect to any such Mortgaged Property that may
be covered by such policy and (iii) notifying the insured as soon as reasonably
practicable, but in any event within three Business Days, after the Master
Servicer or the Special Servicer, as applicable, first has actual knowledge or
receives written notification of termination or rent abatement by the related
Tenant with respect to any Credit Lease underlying a Mortgaged Property covered
by a Lease Enhancement Policy. In addition to the above conditions to coverage,
each of the Master Servicer and the Special Servicer hereby agrees that it will
use reasonable best efforts to take any and all actions required under the Lease
Enhancement Policy in connection with any claim, including (i) the timely
presentation of a proof of loss containing all required information, (ii) the
prosecution of all claims relating to a casualty or condemnation, consistent
with the Servicing Standard, which will maximize any recoveries or awards from
sources other than the insurer under the Lease Enhancement Policy, (iii)
providing reasonable access to any Mortgaged Property (but only to the extent
such access is available pursuant to the related Mortgage Loan documents,
applicable law and the related Credit Lease), (iv) the providing of any other
notices required under the Lease Enhancement Policies in a timely fashion and
any other actions which will maximize any recoveries under the Lease Enhancement
Policies, and (v) the timely submission of claims under the Lease Enhancement
Policy to the extent the Master Servicer or the Special Servicer, as applicable,
determines in accordance with the Servicing Standard that any such claim would
not be excluded under the terms of the Lease Enhancement Policy. Notwithstanding
anything provided in the two preceding sentences, the Master Servicer shall only
be obligated to maintain or cause to be maintained with respect to each
Mortgaged Property the types and amounts of insurance required pursuant to
Section 3.07, and any actions taken by the Master Servicer with respect to the
Lease Enhancement Policy shall be consistent with the related Mortgage Loan
documents.
In addition to the foregoing, each of the Master Servicer and the
Special Servicer hereby acknowledges that the Lease Enhancement Policies contain
provisions which result in automatic termination as to any Mortgaged Property in
the event that such Mortgaged Property is conveyed (either by a transfer of fee
simple title or a transfer of a direct beneficial or equitable ownership
interest of greater than 50% of the related Mortgagor) unless (i) the insurer is
notified in writing of such proposed transfer at least 30 days prior thereto and
(ii) the agreement governing the transfer contains a clause requiring the
transferee to assume the transferor's obligations under the Lease Enhancement
Policy, and (iii) the insurer has approved such assumption provision prior to
the effective date of the transfer. Each of the Master Servicer and the Special
Servicer agrees that it will not consent to the transfer of fee simple title to
any Mortgaged Property covered by a Lease Enhancement Policy, or beneficial
ownership thereof, in a transaction which fails to comply with items (i)-(iii)
above.
Each of the Lease Enhancement Policies may be amended from time to
time by the mutual agreement of the parties thereto, provided that such
amendment shall not result in a downgrade, qualification or withdrawal, as
applicable, of any rating then assigned to any Class of Certificates by any
Rating Agency (as evidenced by written confirmation to such effect from each
Rating Agency obtained by or delivered to the Trustee).
Any and all amounts collected under a Lease Enhancement Policy shall
be immediately deposited in the Certificate Account, subject to withdrawal as
provided herein. Costs and expenses (other than extraordinary enforcement
expenses related to the enforcement of the Lease Enhancement Policy, including
related judicial proceedings and "out-of-pocket" costs and expenses of outside
legal counsel) incurred by the Master Servicer in connection with this Section
3.28 shall be reimbursable out of the Servicing Compensation only.
SECTION 3.29 Maintenance of Extended Amortization Policies.
Each of the Master Servicer and the Special Servicer hereby agrees
to use reasonable best efforts to abide by the terms and conditions precedent to
payment of claims under any Extended Amortization Policies and to use best
efforts to take all such action as may be required to comply with the terms and
provisions of such policies in order to maintain, in full force and effect, such
Extended Amortization Policies, including, but not limited to, notifying the
Extension Insurer in writing as soon as reasonably practicable, but in any event
within three Business Days, after the Master Servicer or the Special Servicer,
as applicable, first has actual knowledge or receives written notification of
the commencement of both an Owner Default and a Tenant Non-Renewal Action (each
as defined in the Extended Amortization Policy) proceeding with respect to any
Mortgaged Property covered by a Extended Amortization Policy. In addition to the
above conditions to coverage, each of the Master Servicer and the Special
Servicer hereby agrees that it will use reasonable best efforts to take any and
all actions required under the Extended Amortization Policy in connection with
any claim, including (i) the timely presentation of a proof of loss containing
all required information, (ii) providing reasonable access to any Mortgaged
Property (but only to the extent such access is available pursuant to the
related Mortgage Loan documents, applicable law and the related Credit Lease),
(iii) the providing of any other notices required under the Extended
Amortization Policies in a timely fashion and any other actions which will
maximize any recoveries under the Extended Amortization Policies, and (iv) the
timely submission of claims under the Extended Amortization Policy to the extent
the Master Servicer or the Special Servicer, as applicable, determines in
accordance with the Servicing Standard that any such claim would not be excluded
under the terms of the Extended Amortization Policy. Notwithstanding anything
provided in the two preceding sentences, the Master Servicer shall only be
obligated to maintain or cause to be maintained with respect to each Mortgaged
Property the types and amounts of insurance required pursuant to Section 3.07,
and any actions taken by the Master Servicer with respect to the Extended
Amortization Policy shall be consistent with the related Mortgage Loan
documents.
Each of the Extended Amortization Policies may be amended from time
to time by the mutual agreement of the parties thereto, provided that such
amendment shall not result in a downgrade, qualification or withdrawal, as
applicable, of any rating then assigned to any Class of Certificates by any
Rating Agency (as evidenced by written confirmation to such effect from each
Rating Agency obtained by or delivered to the Trustee).
Any and all amounts collected under a Extended Amortization Policy
shall be immediately deposited in the Certificate Account, subject to withdrawal
as provided herein. Costs and expenses (other than extraordinary enforcement
expenses related to the enforcement of the Extended Amortization Policy,
including related judicial proceedings and "out-of-pocket" costs and expenses of
outside legal counsel) incurred by the Master Servicer in connection with this
Section 3.29 shall be reimbursable out of the Servicing Compensation only.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01 Distributions on the Certificates.
(a) (i) On each Distribution Date, amounts held in the Distribution
Account shall be withdrawn (to the extent of the Available Distribution
Amount) in the case of all Classes of REMIC I Regular Interests and
distributed on the REMIC I Regular Interests as follows:
(1) amounts distributable as interest to the Class A-1,
Class A-2 and Class A-3 Certificates pursuant to Section
4.01(b)(i) shall be allocated 0.01% to the Corresponding
REMIC I Regular Interests and 99.99% to the Class LWAC
Uncertificated Interest;
(2) amounts distributable as principal to the Class A-1,
Class A-2 and Class A-3 Certificates pursuant to Section
4.01(b)(ii) or the proviso to Section 4.01(b) shall be
allocated 0.01% to the Corresponding REMIC I Regular
Interests and 99.99% to the Class LWAC Uncertificated
Interest;
(3) amounts distributable for unreimbursed amounts of Realized
Losses and Additional Trust Fund Expenses previously
allocated to the Class A-1, Class A-2 and Class A-3
Certificates pursuant to Section 4.01(b)(v) shall be
allocated 0.01% to the Corresponding REMIC I Regular
Interests and 99.99% to the Class LWAC Uncertificated
Interest;
(4) amounts distributable as interest to the Class B, Class C,
Class D, Class E, Class F and Class G Certificates pursuant
to Section 4.01(b)(vi), (ix), (xi), (xv), (xviii) and (xxi)
shall be allocated 0.01% to the Corresponding REMIC I
Regular Interests and 99.99% to the Class LWAC
Uncertificated Interest;
(5) amounts distributable as principal to the Class B, Class C,
Class D, Class E, Class F and Class G Certificates pursuant
to Section 4.01(b)(vii), (x), (xiii), (xvi), (xix) and
(xxii) shall be allocated 0.01% to the Corresponding REMIC I
Regular Interests and 99.99% to the Class LWAC
Uncertificated Interest;
(6) amounts distributable for unreimbursed amounts of Realized
Losses and Additional Trust Fund Expenses previously
allocated to the Class B, Class C, Class D, Class E, Class F
and Class G Certificates pursuant to Section 4.01(b)(vi),
(xi), (xiv), (xvii), (xx) and (xxiii) shall be allocated
0.01% to the Corresponding REMIC I Regular Interests and
99.99% to the Class LWAC Uncertificated Interest;
(7) amounts distributable as interest to the Class X
Certificates pursuant to Section 4.01(b)(i) shall be
allocated 100.00% to the Class LWAC Uncertificated Interest.
(ii) The amounts distributable pursuant to clauses (i)(1) through
(7) above constitute the "REMIC I Distribution Amount." Subject to the
penultimate paragraph of Section 4.01(b), any amount that remains in the
Distribution Account on each Distribution Date after distribution of the
REMIC I Distribution Amount and Prepayment Premiums allocable to the
REMIC I Regular Interests pursuant to Section 4.01(d)(ii) shall be
distributed to the Holders of the Class R-I Certificates (but only to the
extent of the Available Distribution Amount for such Distribution Date
remaining in the Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer the
REMIC I Distribution Amount from the Distribution Account to the REMIC II
Distribution Account in the amounts set forth in Section 4.01(a)(i) with respect
to each Class of REMIC I Regular Interest, and immediately thereafter, shall
make distributions thereof from the REMIC II Distribution Account in the order
of priority set forth in clauses (i) through (xxii) below, satisfying in full,
to the extent required and possible, each priority before making any
distribution with respect to any succeeding priority.
(i) to distributions of interest to the Holders of the Class A-1
Certificates, the Holders of the Class A-2 Certificates, the Holders of
the Class A-3 Certificates and the Holders of the Class X Certificates,
pro rata in accordance with the respective amounts of Distributable
Certificate Interest payable in respect of such Classes of Certificates
described in this clause (i), in an amount equal to all Distributable
Certificate Interest in respect of each such Class of Certificates for
such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(ii) to distributions of principal, first to the Holders of the
Class A-1 Certificates, second to the Holders of the Class A-2
Certificates and third to the Holders of the Class A-3 Certificates, in
each case, in an amount (not to exceed the Class Principal Balance of
such Class of Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(iii) to distributions to the Holders of the Class A-1 Certificates,
the Holders of the Class A-2 Certificates and the Holders of the
Class A-3 Certificates, pro rata in accordance with the respective
amounts of previously allocated Realized Losses and Additional Trust Fund
Expenses reimbursable in respect of such Classes of Certificates
described in this clause (iii), in an amount equal to, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses,
if any, that were previously allocated to the Class Principal Balances of
each such Class of Certificates and that remain unreimbursed immediately
prior to such Distribution Date;
(iv) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A-1, Class A-2 and
Class A-3 Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class B Certificates, in an amount (not
to exceed the Class Principal Balance of the Class B Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution
Date;
(vi) to distributions to the Holders of the Class B Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class B Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(vii) to distributions of interest to the Holders of the Class C
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(viii) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3 and Class B Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class C Certificates, in
an amount (not to exceed the Class Principal Balance of the Class C
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(ix) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class C Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(x) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xi) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class B and Class C Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class D Certificates, in
an amount (not to exceed the Class Principal Balance of the Class D
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xii) to distributions to the Holders of the Class D Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class D Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xiii) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xiv) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class B, Class C and Class D Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class E
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class E Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xv) to distributions to the Holders of the Class E Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class E Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xvi) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xvii) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D and Class E Certificates have been
reduced to zero, to distributions of principal to the Holders of the
Class F Certificates, in an amount (not to exceed the Class Principal
Balance of the Class F Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xviii) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class F Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xix) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xx) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D, Class E and Class F Certificates
have been reduced to zero, to distributions of principal to the Holders
of the Class G Certificates, in an amount (not to exceed the
Class Principal Balance of the Class G Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
remaining Principal Distribution Amount for such Distribution Date;
(xxi) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class G Certificates and that remain
unreimbursed immediately prior to such Distribution Date; and
(xxii) to distributions to the Holders of the Class R-II
Certificates, in an amount equal to the balance, if any, of the Available
Distribution Amount for such Distribution Date remaining after the
distributions to be made on such Distribution Date pursuant to
clauses (i) through (xxi) above;
provided that, on each Distribution Date coinciding with or following the Senior
Principal Distribution Cross-Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
above, will be so made to the Holders of the respective Classes of Class A
Certificates, subject to available funds, up to an amount equal to, and pro rata
as among such Classes in accordance with, the respective then outstanding
Class Principal Balances of such Classes of Certificates, and without regard to
the Principal Distribution Amount for such date; and provided, further, that, on
the Final Distribution Date, the payments of principal to be made pursuant to
any of clauses (v), (viii), (xi), (xiv), (xvii) and (xx) above with respect to
any Class of Sequential Pay Certificates, will be so made to the Holders
thereof, subject to available funds, up to an amount equal to the entire then
outstanding Class Principal Balance of such Class of Certificates, and without
regard to the Principal Distribution Amount for such date. References to
"remaining Principal Distribution Amount" in clause (ii) above, in connection
with payments of principal to be made to the Holders of any Class of Class A
Certificates, shall be to the Principal Distribution Amount for such
Distribution Date, net of any distributions of principal made in respect thereof
to the Holders of each other Class of Class A Certificates, if any, that
pursuant to clause (ii) above has an earlier right to payment with respect
thereto. References to "remaining Principal Distribution Amount" in any of
clauses (v), (viii), (xi), (xiv), (xvi) and (xx) above, in connection with the
payments of principal to be made to the Holders of any Class of Sequential Pay
Certificates, shall be to the Principal Distribution Amount for such
Distribution Date, net of any payments of principal made in respect thereof to
the Holders of each other Class of Sequential Pay Certificates that has a higher
Payment Priority. If there is a deficiency in the Available Distribution Amount
with respect to the Class Interest Distribution Amounts, unreimbursed Class
Interest Shortfalls, Principal Distribution Amounts, or unreimbursed amounts of
Realized Losses with respect to any Distribution Date as a result of losses
incurred on any Credit Lease Loans, after giving effect to payments of all
amounts owed to the Master Servicer, Special Servicer, Trustee and Fiscal Agent
with respect to such Distribution Date, the Trustee shall so notify the Master
Servicer of the amount of such deficiency on the Business Day prior to the
related Master Servicer Remittance Date, and the Master Servicer shall withdraw
amounts, to the extent available, from the Expense Reserve Fund in the amount of
such deficiency and remit such amount to the Trustee on such Master Servicer
Remittance Date.
(c) The initial principal amounts, the amounts of principal of, and
interest rates on, each Class of REMIC I Regular Interests shall be derived from
the principal and interest on the Classes of REMIC II Regular Certificates in
the manner set forth in the following table:
REMIC I Initial REMIC I
Regular Uncertificated Uncertificated Remittance
Interest Principal Balance Principal Balance(1) Rate
-------- ----------------- -------------------- ---------
Class LA-1 $7,524.5000 0.01% x A-1 6.3330%
Class LA-2 $19,386.3000 0.01% x A-2 6.8670%
Class LA-3 $12,734.7816 0.01% x A-3 7.1040%
Class LB $2,585.5814 0.01% x B 7.2050%
Class LC $2,093.0897 0.01% x C 7.3990%
Class LD $3,078.0731 0.01% x D 6.4500%
Class LE $1,108.1063 0.01% x E 5.0000%
Class LF $369.3687 0.01% x F 5.0000%
Class LG $369.3689 0.01% x G 5.0000%
Class LWAC $492,442,448 99.99% x initial (3)
SPB(2)
----------------------------
(1) The designations X-0, X-0, X-0, B, C, D, E, F and G in this column
refer to the Class Principal Balance of the Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D, Class E, Class F and Class G
Certificates, respectively, as of any applicable date.
(2) The Class LWAC Uncertificated Interest has an Uncertificated Principal
Balance equal to 99.99% of the SPB. As of any Distribution Date, the
"SPB" is equal to the aggregate Certificate Principal Balance of the
Sequential Pay Certificates as of the preceding Distribution Date
(after giving effect to the distribution of principal on such
Distribution Date) or the Cut-off Date in the case of the first
Distribution Date.
(3) Interest will accrue on the Class LWAC Uncertificated Interest during
each Interest Accrual Period at the Weighted Average Adjusted Net
Mortgage Rate.
(d) (i) Any Prepayment Premiums (whether described in the related
Mortgage Loan documents as a fixed prepayment premium or a yield maintenance
amount) actually collected with respect to a Mortgage Loan or REO Loan during
any particular Collection Period will be distributed on the related Distribution
Date as follows:
(A) first, to the Holders of each Class of Sequential Pay
Certificates (other than an Excluded Class thereof) then
entitled to distributions of principal on such Distribution
Date will be entitled to an amount equal to the product of
(a) the amount of such Prepayment Premium, multiplied by (b)
a fraction (which in no event may be greater than one), the
numerator of which is equal to the excess, if any, of the
Pass-Through Rate of such Class of Sequential Pay
Certificates, over the relevant Reinvestment Yield (as
defined below), and the denominator of which is equal to the
excess, if any, of the Loan Rate of the prepaid Mortgage
Loan, over the relevant Reinvestment Yield, multiplied by
(c) a fraction, the numerator of which is equal to the
amount of principal distributable on such Class of
Sequential Pay Certificates on such Distribution Date, and
the denominator of which is the Principal Distribution
Amount for such Distribution Date. If there is more than one
Class of Sequential Pay Certificates (other than an Excluded
Class thereof) entitled to distributions of principal on any
particular Distribution Date on which a Prepayment Premium
is distributable, the aggregate amount of such Prepayment
Premium will be allocated among all such Classes up to, and
on a pro rata basis in accordance with their respective
entitlements thereto in accordance with, the foregoing
sentence; and
(B) then, to the extent of any portion of such Prepayment
Premium remaining following the distributions described in
the preceding clause (i), to the Holders of the Class X
Certificates.
For purposes of the foregoing, an "Excluded Class" of Sequential Pay
Certificates is any Class thereof other than the Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D and Class E Certificates.
The "Assumed Final Distribution Date" for each Class of REMIC II
Regular Certificates is the Distribution Date in the month set forth below with
respect to such Class.
Class Month of Assumed Final Distribution Date
----- ----------------------------------------
Class A-1 October 22, 2004
Class A-2 October 22, 2012
Class A-3 June 22, 2016
Class X January 22, 2024
Class B May 22, 2017
Class C April 22, 2018
Class D April 22, 2021
Class E April 22, 2022
Class F October 22, 2022
Class G January 22, 2024
The "Reinvestment Yield" for any Mortgage Loan and any Distribution
Date shall be a rate determined by the Trustee, in good faith, equal to the
average yield for "This Week" as most recently reported by the Federal Reserve
Board in Federal Reserve Statistical Release H.15 (519) for U.S. Treasury
securities with a maturity coterminous with the Stated Maturity Date for such
Mortgage Loan. If there is no U.S. Treasury security listed with a maturity
coterminous with the Stated Maturity Date for such Mortgage Loan, then the
Reinvestment Yield shall be a rate determined by the Trustee, in good faith,
equal to the interpolated yield to maturity of U.S. Treasury securities with
maturities next longer and shorter than such remaining term to maturity (such
interpolated yield to be rounded to the nearest whole multiple of 1/100 of 1%
per annum, if the interpolated yield is not such a multiple). In the event the
yields of U.S. Treasury securities are no longer published in Federal Reserve
Statistical Release H.15(519), the Trustee shall select a comparable publication
to determine the Reinvestment Yield.
(ii) All distributions of Prepayment Premiums made in respect of the
respective Classes of REMIC II Regular Certificates on each Distribution
Date pursuant to Section 4.01(d) shall first be distributed from REMIC I
to REMIC II in respect of the REMIC I Regular Interests, pro rata based
upon the amount of principal distributed in respect of each Class of
REMIC I Regular Interest for such Distribution Date pursuant to
Section 4.01(a)(i) above.
(e) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class on
each Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. The final distribution on each Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to such Certificate) will be made in like
manner, but only upon presentation and surrender of such Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution. Any distribution that is to be
made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Registrar or to any other address of
which the Trustee was subsequently notified in writing.
(f) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(g) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(h) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but
only upon presentation and surrender of such Certificates at the
Corporate Trust Office or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(h) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(h). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute to the Class
R-II Certificateholders all unclaimed funds and other assets which remain
subject hereto and the Trustee shall have no further obligation or liability
therefor.
(i) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
SECTION 4.02 Statements to Certificateholders; Certain Reports by
the Master Servicer and the Special Servicer.
(a) On each Distribution Date, the Trustee shall provide or make
available, either in electronic format or by first-class mail to each Holder
(and, if it shall have certified to the Trustee as to its Ownership Interest in
a Class of Book-Entry Certificates, each Certificate Owner) of the REMIC II
Regular Certificates and to the Rating Agencies a statement (a "Distribution
Date Statement"), substantially in the form contemplated on pages B-1 through
B-17 of the Prospectus Supplement, as to the distributions made on such
Distribution Date setting forth:
(i) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates in
reduction of the Class Principal Balance thereof;
(ii) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates
allocable to Distributable Certificate Interest and the amount of the
distribution, if any, on such Distribution Date to the Holders of each
Class of REMIC II Regular Certificates allocable to Prepayment Premiums;
(iii) the Available Distribution Amount for such Distribution Date;
(iv) the aggregate amount of P&I Advances made in respect of the
immediately preceding Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(vi) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Pool as of the end of the Collection Period for the immediately
preceding Distribution Date;
(vii) as of the close of business on the last day of the most
recently ended calendar month, the number, aggregate unpaid principal
balance and specific identification (by loan number) of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
or more days, and (D) as to which foreclosure proceedings have been
commenced;
(viii) with respect to any REO Property included in the Trust Fund
as of the end of the Collection Period for such Distribution Date, the
principal balance of the Mortgage Loan as of the date such Mortgage Loan
became delinquent;
(ix) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of REMIC II Regular Certificates for
such Distribution Date;
(x) the aggregate amount of Distributable Certificate Interest
payable in respect of each Class of REMIC II Regular Certificates on such
Distribution Date, including, without limitation, any Distributable
Certificate Interest remaining unpaid from prior Distribution Dates;
(xi) any unpaid Distributable Certificate Interest in respect of
each Class of REMIC II Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xii) the Pass-Through Rate for each Class of REMIC II Regular
Certificates for such Distribution Date;
(xiii) the Principal Distribution Amount for such Distribution Date,
separately identifying the respective components of such amount;
(xiv) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period;
(xv) the Certificate Balance or Notional Amount, as the case may be,
of each Class of REMIC II Regular Certificates outstanding immediately
before and immediately after such Distribution Date, separately
identifying any reduction therein due to the allocation of Realized
Losses and Additional Trust Fund Expenses on such Distribution Date;
(xvi) the Certificate Factor for each Class of REMIC II Regular
Certificates immediately following such Distribution Date;
(xvii) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer, collectively and separately, during
the related Collection Period; and
(xviii) a brief description of any material, waiver, modification or
amendment of any Mortgage Loan entered into by the Master Servicer or
Special Servicer pursuant to Section 3.20 during the related Collection
Period.
Any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution Date (or,
in the case of the initial Distribution Date, since the Closing Date) shall be
made available with the Distribution Date Statement.
In the case of information furnished pursuant to clauses (i) and
(ii) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per Single Certificate. Except
with respect to the Certificate Factor (required to be reported by clause (xvi)
above), financial information reported by the Trustee to the Certificateholders
pursuant to this Section 4.02 shall be expressed as a dollar amount rounded to
the nearest whole cent. Absent actual knowledge of an error therein, the Trustee
shall have no obligation to recompute, recalculate or verify any information
provided to it by the Master Servicer or Special Servicer. The calculations by
the Trustee contemplated by this Section 4.02 shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
On each Distribution Date, the Trustee shall also provide or make
available, either in electronic format or by first-class mail, to such
Certificateholders and Certificate Owners and to the Rating Agencies, a report
(based on information received from the Master Servicer and Special Servicer)
containing, as and to the extent received from the Master Servicer and Special
Servicer, information regarding the Mortgage Pool as of the close of business on
the related Determination Date, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Annex A to
the Prospectus Supplement (calculated, where applicable, on the basis of the
most recent relevant information provided by the Mortgagors to the Master
Servicer or the Special Servicer and by the Master Servicer or the Special
Servicer, as the case may be, to the Trustee) and such information shall be
presented in a loan-by-loan and tabular format substantially similar to the
formats utilized in Annex B to the Prospectus Supplement (provided that no
information will be provided as to any repair and replacement or other cash
reserve and the only financial information to be reported on an ongoing basis
will be the actual expenses, actual revenues and actual Net Operating Income for
the respective Mortgaged Properties and a Debt Service Coverage Ratio calculated
on the basis thereof).
In addition, the Trustee shall provide or make available, either in
electronic format or by first-class mail, to such Certificateholders and
Certificate Owners and to the Rating Agencies, at the same time that the
Distribution Date Statement is delivered thereto, each (i) Delinquent Loan
Status Report, (ii) REO Status Report, (iii) Historical Loan Modification
Report, (iv) Special Servicer Loan Status Report, and (v) Historical Loss Report
(such five reports, the "Servicer Reports") that has been received by the
Trustee since the prior Distribution Date. Additionally, the Trustee shall also
be required to provide or make available, either in electronic format or by
first-class mail, the Servicer Reports to any potential investor in the
Certificates who requests such reports in writing.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a REMIC II Regular Certificate a statement
containing the information as to the applicable Class set forth in clauses (i)
and (ii) above of the description of Distribution Date Statement, aggregated for
such calendar year or applicable portion thereof during which such Person was a
Certificateholder, together with such other information as the Trustee
determines to be necessary to enable Certificateholders to prepare their tax
returns for such calendar year. Such obligation of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish to
the Holders of the Class R-I and Class R-II Certificates the Form 1066 and shall
furnish their respective Schedules Q thereto at the times required by the Code
or the IRS, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Class R-I and Class R-II Certificates may reasonably request.
The Trustee shall make available each month, the Distribution Date
Statement and the Servicer Reports to any Certificateholder or owner of an
Ownership Interest in a Certificate or any Person identified to the Trustee by
any such Certificateholder or owner as a prospective transferee of a Certificate
or any interest therein, the Rating Agencies, the underwriters of the
Certificates and to any of the parties to this Agreement (collectively,
"Privileged Persons") via the Trustee's Website with the use of a password
provided by the Trustee to such Person upon receipt by the Trustee from such
Person of a certification in the form attached as Exhibit G or Exhibit H;
provided, however, that the Rating Agencies, and the parties hereto are not
required to provide such information. In addition, the Trustee shall also make
Mortgage Loan information as presented in the CSSA loan setup file and CSSA loan
periodic update file format available each month to any Privileged Person via
the Trustee's Website. For investors that have obtained an account number on the
Trustee's Automatic Statements Accessed by Phone ("ASAP") System, the
Distribution Date Statement or a summary report of bond factors may be obtained
from the Trustee via automated facsimile by placing a telephone call to
(000) 000-0000 and following the voice prompts to request "statement number
291." Account numbers on the ASAP System may be obtained by calling the same
telephone number and following the voice prompts for obtaining account numbers.
Separately, bond factor information may be obtained from the Trustee by calling
(000) 000-0000. In addition, if the Depositor so directs the Trustee, and on
terms acceptable to the Trustee, the Trustee will make available through its
electronic bulletin board system, on a confidential basis, certain information
related to the Mortgage Loans. The bulletin board is located at (000) 000-0000.
Investors that have an account on the bulletin board may retrieve the loan level
data file for each transaction in the directory. An account number may be
obtained by typing "new" upon logging into the bulletin board. A directory has
been set up on the bulletin board in which an electronic file is stored
containing monthly servicer data. All files are compressed before being put into
the directory and are password protected. Passwords to each file will be
released by the Trustee.
In connection with providing access to the Trustee's Website or
electronic bulletin board, the Trustee may require registration and the
acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
(b) At or before 11:00 a.m. (New York City time) on the third
Business Day prior to the related Distribution Date, the Master Servicer shall
deliver or cause to be delivered to the Trustee, the Special Servicer and each
Rating Agency, in writing and on a computer-readable medium, in form reasonably
acceptable to the Trustee, including, without limitation, on a loan-by-loan
basis, the following reports: (1) a Delinquent Loan Status Report, (2) an REO
Status Report, (3) a Historical Loan Modification Report, (4) a Historical Loss
Report, (5) the Special Servicer Loan Status Report most recently received by
the Master Servicer and (6) a single report setting forth the information
specified in clauses (i) through (xvi) below (the items specified in
clause (xiii) below to be reported once per calendar quarter, and the amounts
and allocations of payments, collections, fees and expenses with respect to
Specially Serviced Mortgage Loans and REO Properties to be based upon the report
to be delivered by the Special Servicer to the Master Servicer on the second
Business Day after such Determination Date, in the form required by
Section 4.02(c) below):
(i) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to principal on or in respect
of the Mortgage Loans and any REO Loans, separately identifying the
aggregate amount of any Principal Prepayments included therein, and (if
different) the Principal Distribution Amount for the immediately
succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to (A) interest on or in
respect of the Mortgage Loans and any REO Loans and (B) Prepayment
Premiums;
(iii) the aggregate amount of any P&I Advances (specifying the
principal and interest portions thereof separately) to be made pursuant
to Section 4.03 of this Agreement that were made in respect of the
immediately preceding Distribution Date;
(iv) the amount of the Master Servicing Fees, Special Servicing
Fees, Workout Fees, Liquidation Fees and other servicing compensation
with respect to the Mortgage Pool for the Collection Period ending on
such Determination Date, specifying the items and amounts of such other
servicing compensation payable to the Master Servicer, the Special
Servicer and any Sub-Servicers retained by each;
(v) the number and aggregate unpaid principal balance as of the
close of business on the last day of the most recently ended calendar
month of Mortgage Loans in the Mortgage Pool (A) remaining outstanding,
(B) delinquent 30-59 days, (C) delinquent 60-89 days, (D) delinquent 90
days or more but not in foreclosure and (E) in foreclosure; and the
number and aggregate unpaid principal balance as of the close of business
on such Determination Date of Mortgage Loans in the Mortgage Pool (x) as
to which the related Mortgaged Property has become REO Property during
the Collection Period ending on such Determination Date, (y) as to which
the related Mortgaged Property was REO Property as of the end of such
Collection Period and (z) the terms of which have been modified during
such Collection Period pursuant to this Agreement;
(vi) the loan number and the unpaid principal balance as of the
close of business on such Determination Date of each Specially Serviced
Mortgage Loan and each other Defaulted Mortgage Loan;
(vii) with respect to any REO Property that was included in the
Trust Fund as of the close of business on such Determination Date, the
loan number of the related Mortgage Loan, the book value of such REO
Property and the amount of REO Revenues and other amounts, if any,
received on such REO Property during the related Collection Period and
the portion thereof included in the Available Distribution Amount for the
immediately succeeding Distribution Date;
(viii) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the Collection Period
ending on such Determination Date, the loan number of such Mortgage Loan
and the Stated Principal Balance of such Mortgage Loan as of the related
Acquisition Date;
(ix) with respect to any Mortgage Loan or REO Property as to which a
Final Recovery Determination was made by the Master Servicer during the
Collection Period ending on such Determination Date, the loan number of
such Mortgage Loan or, in the case of an REO Property, of the related
Mortgage Loan, the amount of Liquidation Proceeds and/or other amounts,
if any, received thereon during such Collection Period and the portion
thereof included in the Available Distribution Amount for the immediately
succeeding Distribution Date, and any resulting Realized Loss;
(x) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(xi) the aggregate amount of Realized Losses on the Mortgage Pool
for the Collection Period ending on such Determination Date (and the
portions allocable to principal and interest);
(xii) the aggregate amount of the Additional Trust Fund Expenses
(broken down by type) withdrawn from the Certificate Account during the
Collection Period ending on such Determination Date;
(xiii) to the extent provided by the related Mortgagors, information
with respect to occupancy rates for all Mortgaged Properties, sales per
square foot with respect to all retail Mortgaged Properties, and capital
expenditures and capital reserve balances with respect to all Mortgaged
Properties, in each case in the format of the Mortgage Loan Schedule;
(xiv) such other information on a Mortgage Loan-by-Mortgage Loan or
REO Property-by-REO Property basis as the Trustee or the Depositor shall
reasonably request in writing (including, without limitation, information
with respect to any modifications of any Mortgage Loan, any Mortgage
Loans in default or foreclosure, the operation and disposition of REO
Property and the assumption of any Mortgage Loan);
(xv) a brief description of any material waiver, modification or
amendment of any Mortgage Loan entered into by the Master Servicer
pursuant to this Agreement during the related Collection Period; and
(xvi) with respect to any Credit Lease Loan and as of a date no
earlier than three Business Days prior to the related Determination Date:
(i) the publicly available ratings, if any, assigned by each of DCR,
Xxxxx'x and S&P of each Tenant or any related guarantor as of the Closing
Date and as of the date of such report, (ii) the publicly available
ratings, if any, assigned by each of DCR, Xxxxx'x and S&P of each Tenant
or related guarantor as of the date of the immediately preceding report,
and (iii) whether such Tenant or guarantor has been placed on credit
watch by any of DCR, Xxxxx'x or S&P since the date of the immediately
preceding report.
On the date on which the reports described above are delivered to
the Trustee, the Master Servicer shall also deliver or cause to be delivered to
the Trustee and the Rating Agencies a report, in writing and in a
computer-readable medium, in form reasonably acceptable to the Trustee,
containing the information with respect to the Mortgage Pool necessary for the
Trustee to prepare with respect to the Mortgage Pool the additional schedules
and tables required to be made available by the Trustee pursuant to
Section 4.02(a) in substantially the same formats set forth in Annex B to the
Prospectus Supplement, in each case reflecting the changes in the Mortgage Pool
during the related Collection Period.
Not later than the first day of the calendar month following each
Master Servicer Remittance Date, the Master Servicer shall forward to the
Trustee a statement, setting forth the status of the Certificate Account as of
the close of business on such Master Servicer Remittance Date, stating that all
distributions required by this Agreement to be made by the Master Servicer have
been made (or, in the case of any required distribution that has not been made
by the Master Servicer, specifying the nature and status thereof) and showing,
for the period from the preceding Master Servicer Remittance Date (or, in the
case of the first Master Servicer Remittance Date, from the Cut-off Date) to
such Master Servicer Remittance Date, the aggregate of deposits into and
withdrawals from the Certificate Account for each category of deposit specified
in Section 3.04(a) and each category of withdrawal specified in Section 3.05(a).
The Master Servicer shall also deliver to the Trustee, upon reasonable request
of the Trustee, any and all additional information relating to the Mortgage
Loans (which information shall be based upon reports delivered to the Master
Servicer by the Special Servicer with respect to Specially Serviced Mortgage
Loans and REO Properties).
Within 105 days (or 180 days, in the case of annual operating
information) following the end of each calendar quarter, commencing with the
calendar quarter ended June 30, 1999 the Master Servicer shall deliver to the
Trustee and each Rating Agency, with respect to each Mortgaged Property and REO
Property, a report (an "Operating Statement Analysis") in electronic form
containing revenue, expense and net operating income information normalized
using the methodology described in Annex A of the Prospectus Supplement as of
the end of such calendar quarter. The requirement that the Master Servicer
deliver each Operating Statement Analysis is subject to the Master Servicer
having received directly or through the Special Servicer the related operating
statements and rent rolls from the related Mortgagor or otherwise. Certificate
Owners who have certified to the Master Servicer as to their beneficial
ownership of any Book-Entry Certificate may, to the extent such owners request
them, obtain a copy of an Operating Statement Analysis.
The Master Servicer, on each Determination Date, shall forward (for
delivery on such Determination Date) to the Special Servicer all information
collected by the Master Servicer which the Special Servicer is required to
include in the Special Servicer Loan Status Report. Further, the Master Servicer
shall cooperate with the Special Servicer and provide the Special Servicer with
the information in the possession of the Master Servicer reasonably requested by
the Special Servicer, in writing, to the extent required to allow the Special
Servicer to perform its obligations under this Agreement with respect to those
Mortgage Loans serviced by the Master Servicer.
The Master Servicer shall use its reasonable efforts to notify the
Rating Agencies in a timely manner of any change in the identity of either of
the two largest tenants of any retail Mortgaged Property and any casualty at or
condemnation proceeding with respect to any Mortgaged Property, subject to its
becoming aware of such change or event.
To the extent the statements, reports and information (or portions
thereof) to be delivered by the Master Servicer under this Section 4.02(b) are
derived from underlying information to be delivered to the Master Servicer by
the Special Servicer, the Master Servicer shall not be liable for any failure to
deliver such statement, report or information (or portion thereof) on the
prescribed dates, to the extent such failure is caused by the Special Servicer's
failure to deliver such underlying information in a timely manner. Absent actual
knowledge to the contrary, the Master Servicer may conclusively rely on any such
information forwarded to it by the Special Servicer and shall have no obligation
to verify the same.
(c) On the second Business Day after each Determination Date, the
Special Servicer shall forward to the Master Servicer (A) the Special Servicer
Loan Status Report and (B) all information the Master Servicer will be required
to include in the other reports that the Master Servicer is obligated to deliver
to the Trustee pursuant to Section 4.02(b), to the extent such information
relates to any Specially Serviced Mortgage Loan or any REO Property. The Special
Servicer shall also deliver to the Master Servicer and the Trustee, upon the
reasonable written request of either of them, any and all additional information
in the possession of the Special Servicer relating to the Specially Serviced
Mortgage Loans and the REO Properties.
The Special Servicer shall cooperate with the Master Servicer and
provide the Master Servicer with the information in the possession of the
Special Servicer reasonably requested by the Master Servicer, in writing, to the
extent required to allow the Master Servicer to perform its obligations under
this Agreement with respect to the Specially Serviced Mortgage Loans and REO
Properties. Additional information regarding the Specially Serviced Mortgage
Loans, including, without limitation, any financial or occupancy information
(including lease summaries) provided to the Special Servicer by the Mortgagors
or otherwise obtained, shall be delivered to the Master Servicer, within ten
days of receipt.
SECTION 4.03 P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall either (i) deposit into the
Distribution Account from its own funds an amount equal to the aggregate amount
of P&I Advances, if any, to be made in respect of the related Distribution Date,
(ii) apply amounts held in the Certificate Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances, or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made; provided
that if Late Collections of any of the delinquent principal and/or interest in
respect of which it is to make P&I Advances on any Master Servicer Remittance
Date are then on deposit in the Certificate Account, the Master Servicer shall
use such Late Collections (net of any Master Servicing Fees and Workout Fees
payable therefrom) to make such P&I Advances. Any amounts held in the
Certificate Account for future distribution and so used to make P&I Advances
(other than the Late Collections of the delinquent principal and/or interest
contemplated by the proviso to the preceding sentence) shall be appropriately
reflected in the Master Servicer's records and replaced by the Master Servicer
by deposit in the Certificate Account on or before the next succeeding
Determination Date (to the extent not previously replaced through the deposit of
Late Collections of the delinquent principal and/or interest in respect of which
such P&I Advances were made). If, as of 1:00 p.m., New York City time, on any
Master Servicer Remittance Date, the Master Servicer shall not have made any P&I
Advance required to be made on such date pursuant to this Section 4.03(a) (and
shall not have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy no.
(000) 000-0000 (or such alternative number provided by the Master Servicer to
the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (or
such alternative number provided by the Master Servicer to the Trustee in
writing) as soon as possible, but in any event before 3:00 p.m., New York City
time, on such Master Servicer Remittance Date. If, after such notice, the
Trustee does not receive the full amount of such P&I Advances by the close of
business (New York City time) on such Master Servicer Remittance Date, then
(i) unless the Trustee determines that such Advance would be a Nonrecoverable
P&I Advance if made, the Trustee or the Fiscal Agent shall make, by 10:00 a.m.
on the Distribution Date or in any event by such time as shall be required in
order to make the required distribution on such Distribution Date, the portion
of such P&I Advances that was required to be, but was not, made by the Master
Servicer on such Master Servicer Remittance Date and (ii) such failure shall
constitute an Event of Default on the part of the Master Servicer.
(b) The aggregate amount of P&I Advances to be made in respect of
the Mortgage Loans (including, without limitation, Balloon Mortgage Loans
delinquent as to their respective Balloon Payments) and any REO Loans for any
Distribution Date shall equal, subject to subsection (c) below, the aggregate of
all Monthly Payments (other than Balloon Payments) and any Assumed Monthly
Payments, in each case net of related Master Servicing Fees and Workout Fees
payable hereunder, that were due or deemed due, as the case may be, in respect
thereof on their respective Due Dates during the related Collection Period and
that were not paid by or on behalf of the related Mortgagors or otherwise
collected as of the close of business on the last day of the related Collection
Period; provided that, if an Appraisal Reduction Amount exists with respect to
any Required Appraisal Loan, then, in the event of subsequent delinquencies
thereon, the interest portion of the P&I Advance in respect of such Required
Appraisal Loan for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such P&I Advance) to equal the product of (i) the amount of the interest portion
of such P&I Advance for such Required Appraisal Loan for such Distribution Date
without regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the Stated Principal Balance of
such Required Appraisal Loan immediately prior to such Distribution Date, net of
the related Appraisal Reduction Amount, if any, and the denominator of which is
equal to the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, Nonrecoverable P&I
Advances shall be reimbursable pursuant to Section 3.05(a) out of general
collections on the Mortgage Pool on deposit in the Certificate Account. The
determination by the Master Servicer or, if applicable, the Trustee or the
Fiscal Agent, that it has made a Nonrecoverable P&I Advance or that any proposed
P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officer's Certificate delivered promptly (and, in any event, in
the case of a proposed P&I Advance by the Master Servicer, no less than 5
Business Days prior to the related Master Servicer Remittance Date) to the
Trustee (or, if applicable, retained thereby), the Depositor and the Rating
Agencies, setting forth the basis for such determination, together with ( such
determination is prior to the liquidation of the related Mortgage Loan or REO
Property) a copy of an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, which shall have been performed within the twelve
months preceding such determination, and further accompanied by any other
information that the Master Servicer or the Special Servicer may have obtained
and that supports such determination. The Trustee and the Fiscal Agent shall
each deliver such Officer's Certificate as soon as practicable after its
determination that such P&I Advance would be nonrecoverable. If such an
Appraisal shall not have been required and performed pursuant to the terms of
this Agreement, the Master Servicer or the Special Servicer, as the case may be,
may, subject to its reasonable and good faith determination that such Appraisal
will demonstrate the nonrecoverability of the related Advance, obtain an
Appraisal for such purpose at the expense of the Trust. The Trustee and the
Fiscal Agent shall be entitled to rely on any determination of nonrecoverability
that may have been made by the Master Servicer or the Special Servicer with
respect to a particular P&I Advance, and the Master Servicer shall be entitled
to rely on any determination of nonrecoverability that may have been made by the
Special Servicer with respect to a particular P&I Advance.
(d) As and to the extent permitted by Section 3.05(a), the Master
Servicer, the Trustee and the Fiscal Agent shall each be entitled to receive
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of each P&I Advance made thereby (out of its own funds) for so long as
such P&I Advance is outstanding (or, in the case of Advance Interest payable to
the Master Servicer, if earlier, until the Late Collection of the delinquent
principal and/or interest in respect of which such P&I Advance was made has been
received by the Master Servicer or any of its Sub-Servicers), and such interest
will be paid: first, out of any Default Charges collected on or in respect of
the related Mortgage Loan during, and allocable to, the period, if any, that it
was a Specially Serviced Mortgage Loan or an REO Loan and out of any Default
Interest collected on or in respect of the related Mortgage Loan that is a
Credit Lease Loan; and second, at any time coinciding with or following the
reimbursement of such P&I Advance, out of general collections on the Mortgage
Loans and any REO Properties on deposit in the Certificate Account. As and to
the extent provided by Section 3.05(a), the Master Servicer shall reimburse
itself, the Trustee or the Fiscal Agent, as appropriate, for any P&I Advance
made thereby as soon as practicable after funds available for such purpose are
deposited in the Certificate Account, and in no event shall interest accrue in
accordance with this Section 4.03(d) on any P&I Advance as to which the
corresponding Late Collection had been received as of the related date on which
such P&I Advance was made.
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses .
(a) On each Distribution Date, following the distributions to be
made to the Certificateholders on such date pursuant to Section 4.01(b), the
Trustee shall determine the amount, if any, by which (i) the then aggregate
Certificate Principal Balance of the Sequential Pay Certificates, exceeds
(ii) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class G, Class F, Class E,
Class D, Class C and Class B Certificates shall be reduced sequentially, in that
order, in each case, until such excess or the related Class Principal Balance is
reduced to zero (whichever occurs first). If, after the foregoing reductions,
the amount described in clause (i) of the second preceding sentence still
exceeds the amount described in clause (ii) of the second preceding sentence,
then the respective Class Principal Balances of the Class A-1, Class A-2 and
Class A-3 Certificates shall be reduced, pro rata in accordance with the
relative sizes of the then outstanding Class Principal Balances of such Classes
of Certificates, until such excess or each such Class Principal Balance is
reduced to zero (whichever occurs first). Such reductions in the Class Principal
Balances of the respective Classes of the Sequential Pay Certificates shall be
deemed to be allocations of Realized Losses and Additional Trust Fund Expenses,
to the extent not covered by reductions in distributions of interest pursuant to
the allocations set forth in Section 4.01(b).
(b) With respect to any Distribution Date, any Realized Loss or
Additional Trust Fund Expenses allocated pursuant to Section 4.04(a) with
respect to such Distribution Date shall reduce the Uncertificated Principal
Balances of the REMIC I Regular Interests as a write-off and shall be allocated
among the Class XX-0, Xxxxx XX-0, Class LA-3, Class LB, Class LC, Class LD,
Class LE, Class LF, Class LG and Class LWAC Uncertificated Interests in the same
proportions as set forth for principal distributions on the Sequential Pay
Certificates allocable to the REMIC I Regular Interests in Section 4.01(a)(i).
(c) The Certificate Principal Balance of the Sequential Pay
Certificates will be notionally reduced (solely for purposes of determining the
Voting Rights of the Class D, Class C, Class B and Class A Certificates) on any
Distribution Date to the extent of any Appraisal Reduction Amounts allocated to
such Classes on such Distribution Date. To the extent that the aggregate of the
Appraisal Reduction Amounts for any Distribution Date exceeds such Certificate
Principal Balance, such excess will be applied to notionally reduce the
Certificate Principal Balance of the next most subordinate Class of Certificates
on the next Distribution Date. Any such reductions will be applied in the
following order of priority: first, to the Class G Certificates; second, to the
Class F Certificates; third, to the Class E Certificates; fourth, to the Class D
Certificates; fifth, to the Class C Certificates; sixth, to the Class B
Certificates; seventh to the Class A-3 Certificates; eighth to the Class A-2
Certificates and finally, to the Class A-1 Certificates; provided however, in
each case that no Certificate Principal Balance in respect of any such Class may
be notionally reduced below zero; and, provided, further, the Certificate
Principal Balance in respect of any such Class shall be reduced solely for
purposes of determining the Voting Rights of the Class D, Class C, Class B and
Class A Certificates.
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
(a) The Certificates will be substantially in the respective
forms annexed hereto as Exhibits A-1 through and including A-12; provided that
any of the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in the REMIC
Regular Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The REMIC II Regular Certificates will
be issuable in denominations corresponding to initial Certificate Principal
Balances or Certificate Notional Amounts, as the case may be, as of the Closing
Date of not less than $100,000 (or, with respect to the Class A Certificates,
$10,000 and, with respect to the Class X Certificates, $1,000,000) and any whole
dollar denomination in excess thereof; provided, however, that a single
Certificate of each Class thereof may be issued in a different denomination.
Each Class of Residual Certificates will be issuable only in a denomination
representing the entire Class. With respect to any Certificate or any beneficial
interest in a Certificate, the "Denomination" thereof shall be (i) the amount
(a) set forth on the face thereof or, (b) set forth on a schedule attached
thereto or (c) in the case of any beneficial interest in a Book-Entry
Certificate, the interest of the related Certificate Owner in the applicable
Class of Certificates as reflected on the books and records of the Depository or
related Participants, as applicable, (ii) expressed in terms of initial
Certificate Balance or initial Notional Amount, as applicable, and (iii) be in
an authorized denomination, as set forth above. The Book-Entry Certificates will
be issued as one or more certificates registered in the name of a nominee
designated by the Depository, and Certificate Owners will hold interests in the
Book-Entry Certificates through the book-entry facilities of the Depository in
the minimum Denominations and aggregate Denominations as set forth in the above.
No Certificate Owner of a Book-Entry Certificate of any Class thereof will be
entitled to receive a Definitive Certificate representing its interest in such
Class, except as provided in Section 5.03 herein. Unless and until Definitive
Certificates are issued in respect of a Class of Book-Entry Certificates,
beneficial ownership interests in such Class of Certificates will be maintained
and transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication;
provided that the Certificates issued on the Closing Date shall, in any event,
be dated the Closing Date.
(c) The Class A, Class X and Class B Certificates shall be
initially issued as Definitive Certificates. The Definitive Certificates shall
be printed, typewritten, lithographed or engraved or produced by any combination
of these methods or may be produced in any other manner permitted by the rules
of any securities exchange on which any of the Certificates may be listed, or as
may, consistently herewith, be determined by the officers executing such
Certificates, as evidenced by their execution thereof.
SECTION 5.02 Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there
shall be maintained at the office of the Certificate Registrar a Certificate
Register in which, subject to such reasonable regulations as the Certificate
Registrar (located as of the Closing Date at 000 Xxxxx XxXxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 60674) may prescribe, the Certificate Registrar shall provide
for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee is hereby initially appointed (and
hereby agrees to act in accordance with the terms hereof) as Certificate
Registrar for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided. The Trustee may appoint, by a
written instrument delivered to the Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator, any other bank or trust company to act as
Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the Trustee shall not be relieved of any
of its duties or responsibilities hereunder as Certificate Registrar by reason
of such appointment. If the Trustee resigns or is removed in accordance with the
terms hereof, the successor trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator shall have the right
to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register. Upon
request, the Trustee shall promptly inform, or cause the Certificate Registrar
to inform, the Master Servicer or the Special Servicer, as applicable, of the
identity of all Certificateholders of the Controlling Class.
If three or more Certificateholders (hereinafter referred to
as "applicants") apply in writing to the Trustee, and such application states
that the applicants desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours to
the most recent list of Certificateholders held by the Trustee. If the Trustee
is no longer the Certificate Registrar and such a list is as of a date more than
90 days prior to the date of receipt of such applicants' request, the Trustee
shall promptly request from the Certificate Registrar a current list as provided
above, and shall afford such applicants access to such list promptly upon
receipt.
Every Certificateholder, by receiving and holding such list,
agrees with the Certificate Registrar and the Trustee that neither the
Certificate Registrar nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
(b) No transfer of any Non-Registered Certificate shall be
made unless that transfer is made pursuant to an effective registration
statement under the Securities Act, and effective registration or qualification
under applicable state securities laws, or is made in a transaction which does
not require such registration or qualification. If a transfer (other than one by
the Depositor to an Affiliate thereof) is to be made in reliance upon an
exemption from the Securities Act, and under the applicable state securities
laws, then either: (i) the Certificate Registrar shall require that the
transferee deliver to the Certificate Registrar an investment representation
letter (the "Investment Representation Letter") substantially in the form of
Exhibit B attached hereto, which Investment Representation Letter shall certify,
among other things, that the transferee is an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act (an "Institutional Accredited Investor") or a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act (a
"Qualified Institutional Buyer"), and the Certificate Registrar may also require
that the transferee deliver to the Certificate Registrar an Opinion of Counsel
if such transferee is not a Qualified Institutional Buyer or (ii) if the
certifications described in the preceding clause (i) cannot be provided, (a) the
Certificate Registrar shall require an Opinion of Counsel reasonably
satisfactory to the Certificate Registrar and the Depositor that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from registration or qualification under the Securities Act,
applicable state securities laws and other relevant laws, which Opinion of
Counsel shall not be an expense of the Trust Fund, the Certificate Registrar,
the Depositor or the Trustee and (b) the Certificate Registrar shall require the
transferor to execute a certification in form and substance satisfactory to the
Certificate Registrar setting forth the facts surrounding such transfer;
provided, however, that a transfer of a Non-Registered Certificate of any such
Class may be made to a trust if the transferor provides to the Certificate
Registrar and to the Trustee a certification that interests in such trust may
only be transferred subject to requirements substantially to the effect set
forth in this Section 5.02. The Servicer will furnish, or cause to be furnished,
upon the request of any Holder of Non-Registered Certificates, to a prospective
purchaser of such Non-Registered Certificates who is a Qualified Institutional
Buyer, such information as is specified in paragraph (d)(4) of Rule 144A with
respect to the Trust Fund, unless, at the time of such request, the entity with
respect to which such information is to be provided is subject to the reporting
requirements of Section 15(d) of the Exchange Act. None of the Depositor, the
Trustee, the Servicer or the Certificate Registrar is obligated to register or
qualify any Class of Non-Registered Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Non-Registered Certificate without
registration or qualification. Any Holder of a Non-Registered Certificate
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Depositor, the Trustee, the Servicer and the Certificate Registrar against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws. Unless the Depositor determines
otherwise in accordance with applicable law and the rules and procedures of, or
applicable to, the Depository (the "Depository Rules"), transfers of a
beneficial interest in a Book-Entry Certificate representing an interest in a
Non-Registered Certificate that is not rated in one of the top four categories
by a nationally recognized statistical rating organization to (i) an
Institutional Accredited Investor will require delivery in the form of a
Definitive Certificate and the Certificate Registrar shall register such
transfer only upon compliance with the foregoing provisions of this Section
5.02(b) or (ii) a Qualified Institutional Buyer may only be effectuated by means
of an "SRO Rule 144A System" approved for such purpose by the Commission.
(c) With respect to the Subordinate Certificates, no sale,
transfer, pledge or other disposition by any Holder of any such Certificate
shall be made unless the Certificate Registrar shall have received either (i) a
representation letter from the proposed purchaser or transferee of such
Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or Section 4975
of the Code, or a governmental plan (as defined in Section 3(32) of ERISA)
subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such Plan and the application of Department of
Labor Regulation ss. 2510.3-101), other than (except with respect to a Residual
Certificate) an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of such Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Prohibited Transaction Class Exemption 95-60 or (ii) if
such Certificate is presented for registration in the name of a purchaser or
transferee that is any of the foregoing, an Opinion of Counsel in form and
substance satisfactory to the Certificate Registrar and the Depositor to the
effect that the acquisition and holding of such Certificate by such purchaser or
transferee will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the fiduciary responsibility provisions of ERISA,
the prohibited transaction provisions of the Code or the provisions of any
Similar Law, will not constitute or result in a "prohibited transaction" within
the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Underwriter, the Placement Agent or the Depositor to any
obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any such Similar Law) in addition to those set forth
in the Agreement. The Certificate Registrar shall not register the sale,
transfer, pledge or other disposition of any such Certificate unless the
Certificate Registrar has received either the representation letter described in
clause (i) above or the Opinion of Counsel described in clause (ii) above. The
costs of any of the foregoing representation letters or Opinions of Counsel
shall not be borne by any of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Underwriter, the Placement Agent, the Certificate
Registrar or and the Trust Fund. Each Certificate Owner of a Subordinate
Certificate shall be deemed to represent that it is not a Person specified in
clauses (a) or (b) above. Any transfer, sale, pledge or other disposition of any
such Certificates that would constitute or result in a prohibited transaction
under ERISA, Section 4975 of the Code or any Similar Law, or would otherwise
violate the provisions of this Section 5.02(c) shall be deemed absolutely null
and void ab initio, to the extent permitted under applicable law.
So long as any of the Class of Certificates remains
outstanding, the Master Servicer will make available, or cause to be made
available, upon request, to any Holder and any Person to whom any such
Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Master Servicer, the Special Servicer or the Mortgage Loans
necessary to the provision of an Opinion of Counsel described in this Section
5.02(c).
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(ii) below to deliver payments to a Person other than such Person. The rights of
each Person acquiring any Ownership Interest in a Residual Certificate are
expressly subject to the following provisions:
(A) Each Person holding or acquiring any
Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall
promptly notify the Trustee and the REMIC
Administrator of any change or impending
change in its status as a Permitted
Transferee.
(B) In connection with any proposed Transfer
of any Ownership Interest in a Residual
Certificate (other than in connection with
the initial issuance thereof or the
transfer thereof among the Depositor and
its Affiliates), the Certificate Registrar
shall require delivery to it, and shall
not register the Transfer of any Residual
Certificate until its receipt of, an
affidavit and agreement substantially in
the form attached hereto as Exhibit C-1 (a
"Transfer Affidavit and Agreement") from
the proposed Transferee, in form and
substance satisfactory to the Certificate
Registrar, representing and warranting,
among other things, that such Transferee
is a Permitted Transferee, that it is not
acquiring its Ownership Interest in the
Residual Certificate that is the subject
of the proposed Transfer as a nominee,
trustee or agent for any Person that is
not a Permitted Transferee, that for so
long as it retains its Ownership Interest
in a Residual Certificate it will endeavor
to remain a Permitted Transferee, and that
it has reviewed the provisions of this
Section 5.02(d) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed
Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge
that the proposed Transferee is not a
Permitted Transferee, no Transfer of an
Ownership Interest in a Residual
Certificate to such proposed Transferee
shall be effected.
(D) Except in connection with the initial
issuance of the Residual Certificates or
any transfer thereof among the Depositor
and its Affiliates, each Person holding or
acquiring any Ownership Interest in a
Residual Certificate shall agree (1) to
require a Transfer Affidavit and Agreement
from any prospective Transferee to whom
such Person attempts to transfer its
Ownership Interest in such Residual
Certificate and (2) not to transfer its
Ownership Interest in such Residual
Certificate unless it provides to the
Certificate Registrar a certificate
substantially in the form attached hereto
as Exhibit C-2 stating that, among other
things, it has no actual knowledge that
such prospective Transferee is not a
Permitted Transferee.
(ii) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Residual Certificate
that was in compliance with the provisions of this Section 5.02(d)
shall be restored, to the extent permitted by law, to all rights as
Holder thereof retroactive to the date of registration of such Transfer
of such Residual Certificate. None of the Trustee, the Master Servicer,
the Special Servicer, the REMIC Administrator or the Certificate
Registrar shall be under any liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not
permitted by this Section 5.02(d) or for making any payments due on
such Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement.
(iii) The REMIC Administrator shall make available to the
Internal Revenue Service and those Persons specified by the REMIC
Provisions all information necessary to compute any tax imposed as a
result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or a
nominee, agent or middleman thereof, including the information
described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the REMIC Administrator
for providing such information.
(e) Subject to the restrictions on transfer and exchange set
forth in this Section 5.02, the Holder of any Definitive Certificate may
transfer or exchange the same in whole or in part (with a Denomination equal to
any authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section
5.02, Section 5.03 and Depository Rules, any Certificate Owner owning a
beneficial interest in a Non-Registered Certificate may cause the Certificate
Registrar to request that the Depository exchange such Certificate Owner's
beneficial interest in a Book-Entry Certificate for a Definitive Certificate or
Certificates. Following a proper request for transfer or exchange, the
Certificate Registrar shall, execute and deliver at such offices or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested.
(f) In the event a Responsible Officer of the Certificate
Registrar becomes aware that a Definitive Certificate or a beneficial interest
in a Book-Entry Certificate representing a Non-Registered Certificate is being
held by or for the benefit of a Person who is not an Eligible Investor, or that
such holding is unlawful under the laws of a relevant jurisdiction, then the
Certificate Registrar shall have the right to void such transfer, if permitted
under applicable law, or to require the investor to sell such Definitive
Certificate or beneficial interest in such Book-Entry Certificate to an Eligible
Investor within 14 days after notice of such determination and each
Certificateholder by its acceptance of a Certificate authorizes the Certificate
Registrar to take such action.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates. In addition, in connection with any transfer to an Institutional
Accredited Investor, the transferor shall reimburse the Trust Fund for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided herein) incurred by the Certificate
Registrar in connection with such transfer.
(i) Subsequent to the initial issuance of the Certificates,
the Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Depositor to the Trustee on
diskette on or about the Closing Date. All Certificates surrendered for transfer
and exchange shall be physically canceled by the Certificate Registrar, and the
Certificate Registrar shall hold or destroy such canceled Certificates in
accordance with its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Depositor and the REMIC Administrator with an updated copy of the Certificate
Register on or about January 1 of each year, commencing January 1, 2000, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
SECTION 5.03 Book-Entry Certificates.
(a) The Class C, Class D, Class E, Class F and Class G
Certificates shall initially be issued as one or more Certificates registered in
the name of the Depository or its nominee and, except as provided in subsection
(c) below, transfer of such Certificates may not be registered by the
Certificate Registrar unless such transfer is to a successor Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and transfer
their respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in subsection
(c) below, shall not be entitled to fully registered, physical Certificates
("Definitive Certificates") in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner. Each Depository Participant shall only transfer the
Ownership Interests in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures. Neither the Certificate Registrar nor the
Trustee shall have any responsibility to monitor or restrict the transfer of
Ownership Interests in Certificates through the book-entry facilities of the
Depository. Neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction or transfer imposed under Article V of this Agreement or under
applicable law with respect to any transfer of any Certificate, or any interest
therein, other than to require delivery of the certification(s) and/or opinions
of counsel described in Article V applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register
except as set forth in Section 5.02(d)(i)(C). The Trustee and the Certificate
Registrar shall have no liability for transfers, including transfers made
through the book-entry facilities of the Depository or between or among
Depository participants or Beneficial Owners made in violation of applicable
restrictions.
(b) The Depositor, the Mortgage Loan Seller, the Trustee, the
Master Servicer, the Special Servicer, the REMIC Administrator and the
Certificate Registrar may for all purposes, including the making of payments due
on the Book-Entry Certificates, deal with the Depository as the authorized
representative of the Certificate Owners with respect to such Certificates for
the purposes of exercising the rights of Certificateholders hereunder. The
rights of Certificate Owners with respect to the Book-Entry Certificates shall
be limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of the Book-Entry Certificates with respect to any
particular matter shall not be deemed inconsistent if they are made with respect
to different Certificate Owners. The Trustee may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
If any party hereto requests from the Depository a list of the Depository
Participants in respect of any Class or Classes of the Book-Entry Certificates,
the cost thereof shall be borne by the party on whose behalf such request is
made (but in no event shall any such cost be borne by the Trustee).
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to properly discharge its responsibilities with respect to any Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to any Class of the Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of any Class of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the appropriate Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator or the Certificate Registrar
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Certificate Registrar for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(f) If a Holder of a Definitive Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in the Book-Entry Certificate, such transfer
may be effected only in accordance with Depository Rules and this Section
5.03(f). Upon receipt by the Certificate Registrar at the Registrar Office of
(i) the Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), (ii) written instructions given in accordance with
Depository Rules directing the Certificate Registrar to credit or cause to be
credited to another account a beneficial interest in the related Book-Entry
Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interest and (iv) if the affected Certificate is a
Non-Registered Certificate an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, the Certificate Registrar shall cancel such Definitive Certificate,
execute and deliver a new Definitive Certificate for the Denomination of the
Definitive Certificate not so transferred, registered in the name of the Holder
or the Holder's transferee (as instructed by the Holder), and the Certificate
Registrar shall instruct the Depository or the custodian holding such Book-Entry
Certificate on behalf of the Depository to increase the Denomination of the
related Book-Entry Certificate by the Denomination of the Definitive Certificate
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a corresponding Denomination of such
Book-Entry Certificate.
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may reasonably be required by them to save each of them harmless,
then, in the absence of actual notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar and any agents
of any of them may treat the person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and for all other purposes whatsoever, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any agent of
any of them shall be affected by notice to the contrary.
SECTION 5.06 Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the applicable transfer requirements of Sections 5.02(b) and
5.02(c).
(b) To the extent that under the terms of this Agreement, it
is necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person which shall
specify, in reasonable detail satisfactory to the Trustee, the Class and
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of the Book-Entry Certificate beneficially owned, the value of such Person's
interest in such Certificate and any intermediaries through which such Person's
Ownership Interest in such Book-Entry Certificate is held; provided, however,
that the Trustee shall not knowingly recognize such Person as a Certificate
Owner if such Person, to the knowledge of a Responsible Officer of the Trustee,
acquired its Ownership Interest in a Book-Entry Certificate in violation of
Section 5.02(b) and/or Section 5.02(c), or if such Person's certification that
it is a Certificate Owner is in direct conflict with information obtained by the
Trustee from the Depository, Depository Participants, and/or indirect
participating brokerage firms for which a Depository Participant acts as agent,
with respect to the identity of a Certificate Owner. The Trustee shall exercise
its reasonable discretion in making any determination under this Section 5.06(b)
and shall afford any Person providing information with respect to its beneficial
ownership of any Certificates an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLERS, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer and the REMIC Administrator.
The Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Special Servicer and the REMIC Administrator shall be liable in accordance
herewith only to the extent of the respective obligations specifically imposed
upon and undertaken by the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer and the REMIC Administrator herein.
SECTION 6.02 Merger, Consolidation or Conversion of the
Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special
Servicer or the REMIC Administrator.
Subject to the following paragraph, the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer and the REMIC
Administrator each will keep in full effect its existence, rights and franchises
as a corporation or other business organization under the laws of the
jurisdiction of its organization, and each will obtain and preserve its
qualification to do business as a foreign corporation or otherwise in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
The Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Special Servicer and the REMIC Administrator each may be merged or
consolidated with or into any Person, or transfer all or substantially all of
its assets (which, as to the Master Servicer and the Special Servicer, may be
limited to all or substantially all of its assets relating to the business of
mortgage loan servicing) to any Person, in which case any Person resulting from
any merger or consolidation to which the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer or the REMIC Administrator shall be a
party, or any Person succeeding to the business of the Depositor, the Mortgage
Loan Sellers, the Master Servicer, the Special Servicer or the REMIC
Administrator, shall be the successor of the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer or the REMIC Administrator,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer, the Special Servicer,
or the Mortgage Loan Sellers unless such succession will not result in any
withdrawal, downgrade or qualification of the rating then assigned by any Rating
Agency to any Class of Certificates (as confirmed in writing).
SECTION 6.03 Limitation on Liability of the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator and Others.
None of the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator or any director, officer, employee or agent of
any of the foregoing shall be under any liability to the Trust or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator or any such other Person against any breach of
a representation or warranty made herein, or against any expense or liability
specifically required to be borne thereby pursuant to the terms hereof, or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of obligations or duties
hereunder, or by reason of negligent disregard of such obligations and duties.
The Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and any director, officer, employee or agent of any of the
foregoing may rely in good faith on any document of any kind which, prima facie,
is properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and any director, officer, employee or agent of any of the
foregoing shall be indemnified and held harmless by the Trust against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement, the Certificates or any asset of the Trust, other than any loss,
liability or expense: (i) specifically required to be borne by such Person
pursuant to the terms hereof, including, without limitation, Section 10.01(h);
(ii) with respect to the Master Servicer and the Special Servicer, incidental to
the performance of obligations and duties hereunder, including, without
limitation, in the case of the Master Servicer or the Special Servicer, the
prosecution of an enforcement action in respect of any specific Mortgage Loan or
Mortgage Loans (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement); or (iii) which was incurred in
connection with claims against such party resulting from (A) any material breach
of a representation or warranty made herein by such party, (B) willful
misfeasance, bad faith or negligence in the performance of obligations or duties
hereunder by such party, or from negligent disregard of such obligations or
duties, or (C) with respect to the Master Servicer and the Special Servicer, any
violation by the Master Servicer or the Special Servicer, as applicable, of any
state or federal securities law. None of the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator shall be under any obligation to
appear in, prosecute or defend any legal action unless such action is related to
its respective duties under this Agreement and, except in the case of a legal
action contemplated by Section 3.22 with respect to the Master Servicer and the
Special Servicer, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator may in its discretion undertake any
such action which it may deem necessary or desirable with respect to the
enforcement and/or protection of the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action, and any liability resulting therefrom, shall
be expenses, costs and liabilities of the Trust, and the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator each shall be
entitled to the direct payment of such expenses or to be reimbursed therefor
from the Certificate Account as provided in Section 3.05(a).
SECTION 6.04 Master Servicer, Special Servicer and
REMIC Administrator Not to Resign.
None of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be permitted to resign from the obligations and duties
hereby imposed on it, except (i) upon the appointment of, and the acceptance of
such appointment by, a successor thereto which is reasonably acceptable to the
Trustee and the receipt by the Trustee of written confirmation from each and
every Rating Agency to the effect that such resignation and appointment will not
result in the downgrade, qualification or withdrawal of any rating then assigned
by such Rating Agency to any Class of Certificates, (ii) upon determination that
such obligations and duties hereunder are no longer permissible under applicable
law or are in material conflict by reason of applicable law with any other
activities carried on by it, the other activities of the Master Servicer,
Special Servicer or REMIC Administrator, as the case may be, so causing such a
conflict being of a type and nature carried on by the Master Servicer, Special
Servicer or REMIC Administrator, as the case may be, at the date of this
Agreement, or (iii) in the case of the REMIC Administrator, if the Trustee
resigns or is removed pursuant to Section 8.07. Any such determination of the
nature described in clause (ii) of the preceding sentence permitting the
resignation of the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, shall be evidenced by an Opinion of Counsel
to such effect which shall be rendered by Independent counsel, be addressed and
delivered to the Trustee and the Rating Agencies and be paid for by the
resigning party. No such resignation for either reason shall become effective
until the Trustee or other successor shall have assumed the responsibilities and
obligations of the resigning party hereunder. All costs and expenses of the
Trustee and the Trust (including, without limitation, any costs or expenses of
any party hereto reimbursable out of the Trust Fund) in connection with any such
resignation (including, without limitation, any requisite transfer of servicing)
shall be paid for, as incurred, by the resigning party.
Consistent with the foregoing, none of the Master Servicer,
the Special Servicer or the REMIC Administrator shall be permitted, except as
expressly provided herein, to assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with, or
authorize or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer, the Special Servicer or the REMIC
Administrator are transferred to a successor thereto, then, subject to Sections
3.11(a) and 3.22 and Section 10.03, the entire amount of compensation payable to
the Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, pursuant hereto shall thereafter be payable to such successor.
SECTION 6.05 Rights of the Depositor and the Trustee in
Respect of the Master Servicer, the Special Servicer and the REMIC
Administrator.
The Master Servicer, the Special Servicer and the REMIC
Administrator each shall afford the Depositor and the Trustee, upon reasonable
notice, during normal business hours access to all records maintained by the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, in respect of its rights and obligations hereunder and access to such of
its officers as are responsible for such obligations. Upon reasonable request,
the Master Servicer, the Special Servicer and the REMIC Administrator each shall
furnish the Depositor and the Trustee with its most recent financial statements
and such other information as it possesses, and which it is not prohibited by
law or, to the extent applicable, binding obligations to third parties with
respect to confidentiality from disclosing, regarding its business, affairs,
property and condition, financial or otherwise. The Depositor may, but is not
obligated to, enforce the obligations of the Master Servicer, the Special
Servicer and the REMIC Administrator hereunder and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the Master
Servicer, the Special Servicer or the REMIC Administrator hereunder or, in
connection with a default thereby, exercise the rights of the Master Servicer,
the Special Servicer or the REMIC Administrator hereunder; provided, however,
that none of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be relieved of any of its obligations hereunder by virtue of
such performance by the Depositor or its designee. The Depositor shall not have
any responsibility or liability for any action or failure to act by the Master
Servicer, the Special Servicer or the REMIC Administrator and is not obligated
to supervise the performance of the Master Servicer, the Special Servicer or the
REMIC Administrator under this Agreement or otherwise.
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
(a) "Event of Default", wherever used herein, unless the
context otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer to deposit into the
Certificate Account any amount required to be so deposited under this
Agreement which continues unremedied for two Business Days following
the date on which such deposit was first required to be made, or any
failure by the Master Servicer to deposit into, or to remit to the
Trustee for deposit into, the Distribution Account on any Master
Servicer Remittance Date, the full amount of any Master Servicer
Remittance Amount required to be so deposited or remitted under this
Agreement on such date; or
(ii) any failure by the Special Servicer to deposit into, or
to remit to the Master Servicer for deposit into, the Certificate
Account or the REO Account any amount required to be so deposited or
remitted under this Agreement which continues unremedied for two
Business Days following the date on which such deposit or remittance
was first required to be made; or
(iii) any failure by the Master Servicer to remit to the
Trustee for deposit into the Distribution Account, on any Master
Servicer Remittance Date, the full amount of P&I Advances required to
be made on such date; or
(iv) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it pursuant to this Agreement,
which failure continues unremedied for a period of one Business Day
following the date on which notice shall have been given to the Master
Servicer by the Trustee as provided in Section 3.11(e); or
(v) any failure by the Special Servicer to timely make (or
timely direct the Master Servicer to make) any Servicing Advance
required to be made by it or the Master servicer at its direction
pursuant to this Agreement, which failure continues unremedied for a
period of one Business Day following the date on which notice has been
given to the Special Servicer by the Trustee as provided in Section
3.11(e); or
(vi) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any
other of the covenants or agreements thereof contained in this
Agreement, which failure continues unremedied for a period of 30 days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Master Servicer or
the Special Servicer, as the case may be, by any other party hereto, or
to the Master Servicer or the Special Servicer, as the case may be,
with a copy to each other party hereto, by the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(vii) any failure on the part of the REMIC Administrator duly
to observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the REMIC Administrator by any other party hereto, or to
the REMIC Administrator, with a copy to each other party hereto, by the
Holders of Certificates entitled to at least 25% of the Voting Rights;
or
(viii) any breach on the part of the Master Servicer, the
Special Servicer or the REMIC Administrator of any representation or
warranty thereof contained in this Agreement which materially and
adversely affects the interests of any Class of Certificateholders and
which continues unremedied for a period of 30 days after the date on
which notice of such breach, requiring the same to be remedied, shall
have been given to the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, by any other party hereto, or
to the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights; or
(ix) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Master Servicer, the Special Servicer or the REMIC
Administrator and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator,
receiver, liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings of or relating to it or of or relating to all or
substantially all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend
payment of its obligations, or take any corporate action in furtherance
of the foregoing; or
(xii) the Master Servicer or the Special Servicer is removed
from S&P's list of approved master servicers or special servicers, as
applicable, and the then-current ratings assigned to any Class of
Certificates by S&P are downgraded, qualified or withdrawn (including,
without limitation, placement on negative credit watch) in connection
with such removal; or
(xiii) the Trustee has received written confirmation by DCR or
Xxxxx'x that the then-current rating assigned to any Class of
Certificates by such Rating Agency will be withdrawn, downgraded or
qualified if the Master Servicer or the Special Servicer is not removed
as Master Servicer or Special Servicer, as applicable, hereunder; or
(xiv) the Master Servicer or the Special Servicer shall no
longer be an "approved" or "acceptable" (or equivalent designation)
servicer by each of the Rating Agencies for mortgage pools similar to
the Trust Fund, and the Master Servicer or the Special Servicer, as
applicable, shall not have resolved all such matters to the
satisfaction of Moody's within ninety (90) days (or such longer time
period as may be agreed in writing by Moody's) after such change in
designation; or
(xv) Moody's places its ratings of any class of Certificates
on a "watch" status in contemplation of a ratings downgrade or
withdrawal due to the acts, omission or circumstances of or involving
the Master Servicer or the Special Servicer acting in such capacity,
and the Master Servicer or the Special Servicer, as applicable, shall
not have resolved all such matters to the satisfaction of Moody's
within ninety (90) days (or such longer time period as may be agreed in
writing by Moody's) after such placement on "watch" status; or
(xvi) Moody's shall provide written notice to the Trustee
that, unless the Master Servicer or the Special Servicer, as
applicable, resigns, it will place its ratings on one or more Classes
of Certificates on a "watch" status in contemplation of a ratings
downgrade or withdrawal due to the acts, omissions or circumstances of
our involving the Master Servicer or the special Servicer, as
applicable, acting in such capacity, and the Master Servicer or the
Special Servicer, as applicable, shall not have resolved all such
matters to Moody's satisfaction within ninety (90) days (or such longer
time period as may be agreed in writing by Moody's) after such notice
is provided.
Each Event of Default listed above as items (iv) through (xiii) shall constitute
an Event of Default only with respect to the relevant party; provided that if a
single entity acts or any two or more Affiliates act as Master Servicer, Special
Servicer and REMIC Administrator, or in any two or more of the foregoing
capacities, an Event of Default in one capacity (other than an event described
in clause (xii) or (xiii)) will constitute an Event of Default in each such
capacity.
(b) If any Event of Default with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") shall occur and be continuing, then, and in
each and every such case, so long as the Event of Default shall not have been
remedied, the Depositor or the Trustee may, and at the written direction of the
Holders of Certificates entitled to at least 51% of the Voting Rights shall,
terminate, by notice in writing to the Defaulting Party (with a copy of such
notice to each other party hereto), all of the rights and obligations (subject
to Section 3.11, accruing from and after such notice) of the Defaulting Party
under this Agreement and in and to the Mortgage Loans and the proceeds thereof.
With respect to each Event of Default listed above as items (xiii) through
(xvi), the Trustee shall provide written notice of such Event of Default to each
Certificateholder and request written direction of such Certificateholders which
desire to terminate the Defaulting Party. From and after the receipt by the
Defaulting Party of such written notice, all authority and power of the
Defaulting Party under this Agreement, whether with respect to the Certificates
(other than as a Holder of any Certificate) or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee pursuant to and under this Section,
and, without limitation, the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer and the Special Servicer each agree that, if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records reasonably
requested thereby to enable the Trustee to assume the Master Servicer's or
Special Servicer's, as the case may be, functions hereunder, and shall cooperate
with the Trustee in effecting the termination of the Master Servicer's or
Special Servicer's, as the case may be, responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
Trustee for administration by it of all cash amounts which shall at the time be
or should have been credited by the Master Servicer to the Certificate Account,
the Distribution Account, any Servicing Account or any Reserve Account (if it is
the Defaulting Party) or by the Special Servicer to the REO Account, the
Certificate Account, any Servicing Account or any Reserve Account (if it is the
Defaulting Party) or thereafter be received with respect to the Mortgage Loans
and any REO Properties (provided, however, that the Master Servicer and the
Special Servicer each shall, if terminated pursuant to this Section 7.01(b),
continue to be obligated for or entitled to receive all amounts accrued or owing
by or to it under this Agreement on or prior to the date of such termination,
whether in respect of Advances or otherwise, and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination). All costs and expenses of the
Trustee and the Trust (including, without limitation, any costs and expenses of
any party hereto reimbursable out of the Trust Fund) in connection with the
termination of the Master Servicer or Special Servicer, as applicable, under
this Section 7.01(b) (including, without limitation, the requisite transfer of
servicing) shall be paid for, as incurred, by the Defaulting Party.
(c) If any Event of Default with respect to the REMIC
Administrator shall occur and be continuing, then, and in each and every such
case, so long as the Event of Default shall not have been remedied, the
Depositor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights, the Trustee (or, if
the Trustee is also the REMIC Administrator, the Master Servicer) shall,
terminate, by notice in writing to the REMIC Administrator (with a copy to each
of the other parties hereto), all of the rights and obligations of the REMIC
Administrator under this Agreement. From and after the receipt by the REMIC
Administrator of such written notice (or if the Trustee is also the REMIC
Administrator, from and after such time as another successor appointed as
contemplated by Section 7.02 accepts such appointment), all authority and power
of the REMIC Administrator under this Agreement shall pass to and be vested in
the Trustee (or such other successor) pursuant to and under this Section, and,
without limitation, the Trustee (or such other successor) is hereby authorized
and empowered to execute and deliver, on behalf of and at the expense of the
REMIC Administrator, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination. The REMIC
Administrator agrees promptly (and in any event no later than ten Business Days
subsequent to its receipt of the notice of the termination) to provide the
Trustee (or, if the Trustee is also the REMIC Administrator, such other
successor appointed as contemplated by Section 7.02) with all documents and
records requested thereby to enable the Trustee (or such other successor) to
assume the REMIC Administrator's functions hereunder, and to cooperate with the
Trustee (or such other successor) in effecting the termination of the REMIC
Administrator's responsibilities and rights hereunder (provided, however, that
the REMIC Administrator shall continue to be obligated for or entitled to
receive all amounts accrued or owing by or to it under this Agreement on or
prior to the date of such termination, and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination).
SECTION 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special
Servicer or the REMIC Administrator resigns pursuant to clause (ii) of the first
sentence of Section 6.04 or receives a notice of termination pursuant to Section
7.01, the Trustee shall be the successor in all respects to the Master Servicer,
the Special Servicer or (unless it has also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation, (subject to Section 3.11)
which the resigning or terminated party would have been entitled to for future
services rendered if the resigning or terminated party had continued to act
hereunder. Notwithstanding the above, the Trustee may, if it shall be unwilling
to so act, or shall, if it is unable to so act, or is not approved by each and
every Rating Agency as an acceptable master servicer or special servicer, as the
case may be, of commercial mortgage loans, or if the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing to the
Trustee, or if the REMIC Administrator is the resigning or terminated party and
the Trustee had been acting in such capacity, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established and qualified
institution as the successor to the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, hereunder;
provided that such appointment does not result in the downgrading, qualification
or withdrawal, as applicable, of any rating then assigned by any Rating Agency
to any Class of Certificates (as evidenced by written confirmation thereof from
each Rating Agency). No appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator hereunder shall be effective until
the assumption of the successor to such party of all its responsibilities,
duties and liabilities hereunder. Pending appointment of a successor to the
Master Servicer, the Special Servicer or the REMIC Administrator hereunder, the
Trustee shall act in such capacity as hereinabove provided. Subject to Section
3.11 and in connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on or in respect of the Mortgage Loans or otherwise as
it and such successor shall agree; provided, however, that no such compensation
shall be in excess of that permitted the resigning or terminated party
hereunder. The Depositor, the Trustee, such successor and each other party
hereto shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Any costs and expenses associated
with the transfer of the foregoing functions under this Agreement (other than
the set-up costs of the successor) shall be borne by the predecessor Master
Servicer, Special Servicer or REMIC Administrator, as applicable, and, if not
paid by such predecessor Master Servicer, Special Servicer or REMIC
Administrator within thirty days of its receipt of an invoice therefor, shall be
an expense of the Trust; provided that such predecessor Master Servicer, Special
Servicer or REMIC Administrator shall reimburse the Trust for any such expense
so incurred by the Trust; and provided, further, that the Trustee shall decide
whether and to what extent it is in the best interest of the Certificateholders
to pursue any remedy against any party obligated to make such reimbursement.
SECTION 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04, any termination of
the Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator pursuant to Section 6.04 or Section
7.02, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the
occurrence of any event which constitutes or, with notice or lapse of time or
both, would constitute an Event of Default and (ii) five days after a
Responsible Officer of the Trustee has actual knowledge, or would be deemed in
accordance with Section 8.02(vii) to have notice of the occurrence of such an
event, the Trustee shall transmit by mail to the other non-defaulting parties
hereto and all Certificateholders notice of such occurrence, unless such default
shall have been cured.
SECTION 7.04 Waiver of Events of Default.
The Holders entitled to at least 66-2/3% of the Voting Rights
allocated to each of the Classes of Certificates affected by any Event of
Default (or in the case of an Event of Default under Section 7.01(a)(i), (ii) or
(iii), Holders of 100% of the Voting Rights) hereunder may waive such Event of
Default, except that prior to any waiver of an Event of Default arising from a
failure to make P&I Advances, the Trustee shall be reimbursed all amounts which
it has advanced, and except that prior to any waiver of an Event of Default, the
Trustee shall be reimbursed for all other expenses incurred in connection
therewith pursuant to Section 8.05(b). Upon any such waiver of an Event of
Default, such Event of Default shall cease to exist and shall be deemed to have
been remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor (provided that neither the Depositor nor any
Affiliate thereof is the party in respect of which such Event of Default exists)
shall be entitled to the same Voting Rights with respect to the matters
described above as they would if any other Person held such Certificates.
SECTION 7.05 Additional Remedies of Trustee Upon Event
of Default.
During the continuance of any Event of Default, so long as
such Event of Default shall not have been remedied, the Trustee, in addition to
the rights specified in Section 7.01, shall have the right, in its own name and
as trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default hereunder and after the curing or waiver of all such Events of Default
and defaults which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement; provided that it is
herein acknowledged and agreed that the Trustee is at all times acting in a
fiduciary capacity with respect to the Certificateholders. If an Event of
Default hereunder occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and applicable law, and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs. Any
permissive right of the Trustee contained in this Agreement shall not be
construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement (other than the Mortgage
Files, the review of which is specifically governed by the terms of Article II),
shall examine them to determine whether they conform on their face to the
requirements of this Agreement. If any such instrument is found not to so
conform to the requirements of this Agreement in a material manner, the Trustee
shall request the provider of such instrument to have such instrument corrected
and if such instrument is not corrected within a reasonable period of time the
Trustee shall notify all of the Certificateholders of such nonconformance. The
Trustee shall not be responsible for, but may assume and rely upon, the accuracy
and content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer, the Special Servicer or the REMIC Administrator and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming to
the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% (or, as to any particular matter, any higher
percentage as may be specifically provided for hereunder) of the Voting
Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement.
SECTION 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) The Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby; the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default hereunder which has not been cured,
to exercise such of the rights and powers vested in it by this
Agreement and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs;
(iv) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder,
and after the curing of all such Events of Default which may have
occurred, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so
by Holders of Certificates entitled to at least 25% of the Voting
Rights; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition
to taking any such action;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys-in-fact, provided that the use of any such
agent or attorney-in-fact shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all
acts and omissions of any such agent or attorney-in-fact;
(vii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default hereunder unless a
Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office, and such notice
references the Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any act or
omission of the Master Servicer, the Special Servicer or the REMIC
Administrator (unless the Trustee is acting as Master Servicer, Special
Servicer or REMIC Administrator, as the case may be) or for any act or
omission of the Depositor or the Mortgage Loan Seller.
SECTION 8.03 Trustee and Fiscal Agent Not Liable for
Validity or Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other
than the representations, warranties and acknowledgements of the Trustee in
Section 2.02(a) and Section 2.08(a) and (d), and the certificate of
authentication executed by the Trustee as Certificate Registrar set forth on
each outstanding Certificate) shall be taken as the statements of the Depositor,
the Mortgage Loan Seller, the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, and the Trustee and the Fiscal Agent assume
no responsibility for their correctness. The Trustee and the Fiscal Agent make
no representations as to the validity or sufficiency of this Agreement (other
than as specifically set forth in Section 2.08(a) and (d)) or of any Certificate
(other than as to the signature of the Trustee set forth thereon) or of any
Mortgage Loan or related document. The Trustee and the Fiscal Agent shall not be
accountable for the use or application by the Depositor of any of the
Certificates issued to it or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor or the Mortgage Loan
Seller in respect of the assignment of the Mortgage Loans to the Trust, or any
funds deposited in or withdrawn from the Certificate Account or any other
account by or on behalf of the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator. The Trustee and the Fiscal Agent shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
and accepted by the Trustee or the Fiscal Agent, as applicable, in good faith,
pursuant to this Agreement.
SECTION 8.04 Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, and any
agent of the Trustee may become the owner or pledgee of Certificates with,
except as otherwise provided in the definition of Certificateholder, the same
rights it would have if it were not the Trustee or such agent, as the case may
be.
SECTION 8.05 Fees of Trustee; Indemnification of
Trustee.
(a) The Trustee shall pay to itself on each Distribution Date,
pursuant to Section 3.05(b)(ii), from amounts on deposit in the Distribution
Account, an amount equal to the Trustee Fee for such Distribution Date and, to
the extent not previously received, for each prior Distribution Date.
(b) The Trustee, the Fiscal Agent and any director, officer,
employee or agent of the Trustee or the Fiscal Agent, as applicable, or Person,
if any, who controls the Trustee or the Fiscal Agent, as applicable, within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, shall be entitled to be indemnified and held harmless by the Trust (to the
extent of amounts on deposit in the Certificate Account and the Distribution
Account from time to time) against any loss, liability or expense (including,
without limitation, costs and expenses of litigation, and of investigation,
counsel fees, damages, judgments and amounts paid in settlement) arising out of,
or incurred in connection with, any legal actions relating to the exercise and
performance of any of the powers and duties of the Trustee or the Fiscal Agent,
as applicable, hereunder; provided that none of the Trustee, the Fiscal Agent or
any of the other above specified Persons shall be entitled to indemnification
pursuant to this Section 8.05(b) for (i) allocable overhead, (ii) expenses or
disbursements incurred or made by or on behalf of the Trustee in the normal
course of the Trustee's performing its routine duties in accordance with any of
the provisions hereof, (iii) any expense or liability specifically required to
be borne thereby pursuant to the terms hereof, or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's obligations and duties hereunder, or by reason
of negligent disregard of such obligations or duties, or as may arise from a
material breach of any representation, warranty or covenant of the Trustee made
herein. The provisions of this Section 8.05(b) shall survive any resignation or
removal of the Trustee and appointment of a successor trustee.
SECTION 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, a
trust company, a bank or a banking association: (i) organized and doing business
under the laws of the United States of America or any State thereof or the
District of Columbia; (ii) authorized under such laws to exercise trust powers;
(iii) having a combined capital and surplus of at least $50,000,000; (iv)
subject to supervision or examination by federal or state authority; and (v)
whose long-term senior unsecured debt is rated not less than "Aa3" by Xxxxx'x,
"A" by DCR (or if not rated by DCR, then rated not less than "A" or its
equivalent by two other nationally recognized statistical rating organizations)
and "AA-" by S&P (or, in the case of each Rating Agency, such lower ratings as
would not, as confirmed in writing by such Rating Agency, result in a
qualification, downgrade or withdrawal, as applicable, of any of the
then-current ratings assigned by such Rating Agency to the Certificates). If
such corporation, trust company, bank or banking association publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section 8.06, the combined capital and surplus of such corporation, trust
company, bank or banking association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 8.07. The corporation, trust company,
bank or banking association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, the REMIC Administrator and their respective
Affiliates.
SECTION 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer, the REMIC
Administrator and to all Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee acceptable
to the Master Servicer by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee and to the successor trustee. A copy
of such instrument shall be delivered to the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, the REMIC Administrator and the
Certificateholders by the Depositor. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee or the Fiscal Agent shall become incapable of acting, or shall
be adjudged bankrupt or insolvent, or a receiver of the Trustee or the Fiscal
Agent or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or the Fiscal Agent or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Trustee and the Fiscal Agent and appoint a successor
trustee and successor fiscal agent, if applicable, acceptable to the Master
Servicer by written instrument, in duplicate, which instrument shall be
delivered to the Trustee and the Fiscal Agent so removed and to the successor
trustee and successor fiscal agent, if applicable. A copy of such instrument
shall be delivered to the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the REMIC Administrator and the Certificateholders by the
Depositor. Removal or resignation of the initial Trustee shall be deemed to be a
simultaneous resignation of the initial Fiscal Agent.
(c) The Holders of Certificates entitled to at least 33 1/3%
of the Voting Rights may at any time remove the Trustee and the Fiscal Agent and
appoint a successor trustee and successor fiscal agent, if applicable, by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee and
the Fiscal Agent so removed and one complete set to the successor(s) so
appointed; provided that the Master Servicer, the Depositor and the remaining
Certificateholders shall have been notified; and provided further that other
Holders of the Certificates entitled to a greater percentage of the Voting
Rights shall not have objected to such removal in writing to the Master Servicer
and the Depositor within 30 days of their receipt of notice thereof. A copy of
such instrument shall be delivered to the Depositor, the Mortgage Loan Sellers,
the Special Servicer, the REMIC Administrator and the remaining
Certificateholders by the Master Servicer. If the Trustee and the Fiscal Agent
are removed under this Agreement without cause, all reasonable costs and
expenses incurred by the Trustee and Fiscal Agent (to the extent not duplicative
of any reimbursement provided for under Section 8.08(a)) shall be at the expense
of the party causing such removal.
(d) Any resignation or removal of the Trustee and the Fiscal
Agent and appointment of a successor trustee and successor fiscal agent pursuant
to any of the provisions of this Section 8.07 shall not become effective until
acceptance of appointment by the successor trustee and successor fiscal agent as
provided in Section 8.08; and no such resignation or removal of the Trustee
and/or appointment of a successor trustee and successor fiscal agent shall be
permitted, unless, as confirmed in writing by each Rating Agency, such
resignation or removal and appointment would not result in the qualification,
downgrading or withdrawal of the rating assigned by any Rating Agency to any
Class of Certificates.
SECTION 8.08 Successor Trustee and Fiscal Agent.
(a) Any successor trustee and successor fiscal agent, if
applicable, appointed as provided in Section 8.07 shall execute, acknowledge and
deliver to the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the REMIC Administrator and to its predecessor trustee and
predecessor fiscal agent an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee and predecessor
fiscal agent shall become effective and such successor trustee and successor
fiscal agent, if applicable, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee or
fiscal agent herein. The predecessor trustee shall deliver (or shall cause to be
delivered) to the successor trustee all Mortgage Files and related documents and
statements held by it hereunder, and the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder. If such predecessor trustee was removed as Trustee under this
Agreement without cause, the cost of any such execution, delivery or action
shall be at the expense of the Trust.
(b) No successor trustee or successor fiscal agent, if
applicable, shall accept appointment as provided in this Section 8.08 unless at
the time of such acceptance such successor trustee or successor fiscal agent
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee and
successor fiscal agent, if applicable, as provided in this Section 8.08, the
Master Servicer shall mail notice of the succession of such trustee and fiscal
agent hereunder to the Depositor and the Certificateholders. If the Master
Servicer fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee and successor fiscal agent, the successor
trustee shall cause such notice to be mailed at the expense of the Master
Servicer.
SECTION 8.09 Merger or Consolidation of Trustee or Fiscal
Agent.
Any entity into which the Trustee may be merged or converted
or with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee, hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided that the Trustee shall continue
to be eligible under the provisions of Section 8.06. Any Person into which the
Fiscal Agent may be merged or converted or with which it may be consolidated or
any corporation or bank resulting from any merger, conversion or consolidation
to which the Fiscal Agent shall be a party, or any corporation or banking
association succeeding to all or substantially all of the corporate trust
business of the Fiscal Agent shall be the successor of the Fiscal Agent
hereunder, provided that such corporation or bank shall be eligible under the
provisions of Section 8.06 without the execution or filing of any paper or any
further act on the party of any of the parties hereto, anything to the contrary
notwithstanding. The successor to the Trustee or the Fiscal Agent, as
applicable, shall promptly notify in writing each of the other parties hereto,
the Certificateholders and the Rating Agencies of any such merger, conversion,
consolidation or succession to business.
SECTION 8.10 Appointment of Co-Trustee or Separate
Trustee.
(a) Notwithstanding any other provisions hereof, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing the same may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under
this Section 8.10 shall not relieve the Trustee of its duties, responsibilities
or liabilities hereunder; provided the Trustee shall have no liability for the
actions or inaction of a separate trustee or co-trustee which do not comply with
the provisions of Section 8.10(b).
SECTION 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer,
appoint one or more Custodians to hold all or a portion of the Mortgage Files as
agent for the Trustee; provided that if the Custodian is an Affiliate of the
Trustee such consent of the Master Servicer need not be obtained and the Trustee
shall instead notify the Master Servicer of such appointment. Each Custodian
shall be a depository institution subject to supervision by federal or state
authority, shall have combined capital and surplus (or shall have its
performance guaranteed by an Affiliate with a combined capital and surplus) of
at least $10,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File and shall not be the Depositor, the Mortgage
Loan Sellers or any Affiliate of any of them. Each Custodian shall be subject to
the same obligations and standard of care as would be imposed on the Trustee
hereunder in connection with the retention of Mortgage Files directly by the
Trustee. The appointment of one or more Custodians shall not relieve the Trustee
from any of its duties, liabilities or obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of any Custodian. Any such
Custodian (other than the Trustee or an Affiliate of the Trustee) shall maintain
the same errors and omissions insurance as required of the Master Servicer
pursuant to Section 3.07(c).
SECTION 8.12 Access to Certain Information.
(a) The Trustee shall provide or cause to be provided to the
Depositor, the Master Servicer, the Special Servicer and the Rating Agencies,
and to the OTS, the FDIC, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to the Mortgage Files and any other documentation regarding the Mortgage
Loans and the Trust Fund, that is within its control which may be required by
this Agreement or by applicable law. Such access shall be afforded without
charge but only upon reasonable prior written request and during normal business
hours at the offices of the Trustee designated by it.
(b) Promptly following the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee 10 copies of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered Certificate
belongs. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee 10 copies of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its Corporate Trust Office and shall on behalf of the
Depositor, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
any Certificate Owner or any Person identified to the Trustee by a
Certificateholder or a Certificate Owner as a prospective transferee of a
Certificate or interest therein, originals or copies of the following items: (i)
in the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered Certificate
belongs, in the form most recently provided to the Trustee; and (ii) in all
cases, (A) all Officer's Certificates delivered to the Trustee since the Closing
Date pursuant to Section 3.13, (B) all accountants' reports delivered to the
Trustee since the Closing Date pursuant to Section 3.14, (C) the most recent
inspection report, together with any related additional written or electronic
information, prepared or obtained by, or on behalf of, the Master Servicer or
Special Servicer, as the case may be, and delivered to the Trustee in respect of
each Mortgaged Property pursuant to Section 3.12(a), (D) all Mortgagor financial
statements and Mortgaged Property operating statements and rent rolls, together
with any related additional written or electronic information, delivered to the
Trustee by the Master Servicer or the Special Servicer pursuant to Section
3.12(b), (E) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property securing a defaulted Mortgage Loan as to which
the environmental testing contemplated by Section 3.09(c) revealed that either
of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof was not satisfied or that any remedial, corrective or other further
action contemplated in such clauses is required (but only for so long as such
Mortgaged Property or the related Mortgage Loan is part of the Trust Fund), (F)
all documents constituting the Mortgage Files, including, without limitation,
any and all modifications, waivers and amendments of the terms of a Mortgage
Loan entered into by the Master Servicer or the Special Servicer and delivered
to the Trustee pursuant to Section 3.20 (but, in each case, only for so long as
the related Mortgage Loan is part of the Trust Fund) and (G) any Asset Status
Report. Copies of any and all of the foregoing items are to be available from
the Trustee upon request; however, the Trustee shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing such service.
In connection with providing access to or copies of the items
described in the immediately preceding paragraph of this Section 8.12(b), the
Trustee may require, unless the Depositor directs otherwise, (i) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Trustee, generally to the effect that such
Person is a beneficial holder of Certificates and will keep such information
confidential and (ii) in the case of any prospective purchaser of a Certificate
or, in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a prospective purchaser of a Certificate or a beneficial ownership interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates, shall
be deemed to have agreed to keep such information confidential, except to the
extent that the Depositor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
SECTION 8.13 Filings with the Securities and Exchange
Commission.
Based on information provided to it by the Master Servicer or
the Depositor, as the case may be, the Trustee shall, at the expense of the
Depositor, prepare for filing, execute and properly file with the Commission,
the Distribution Date Statements, Delinquent Loan Status Reports, REO Status
Reports, Historical Loan Modification Reports, Special Servicer Loan Status
Reports, Historical Loss Reports and Operating Statement Analyses, and any
reports and statements respecting the Trust Fund and/or the Certificates
specifically provided by the Master Servicer or the Depositor, as the case may
be, to be filed on behalf of the Trust under the Exchange Act; provided that
such items shall have been received by the Trustee (to the extent not generated
by the Trustee) in the format required for electronic filing via the XXXXX
system; and provided, further, that any such items that are required to be
delivered by the Master Servicer to the Trustee shall be so delivered in the
format required for electronic filing via the XXXXX system (in addition to any
other required format). The Trustee shall have no responsibility to file any
such items that have not been received in such XXXXX-compatible format nor shall
it have any responsibility to convert any items to such format. The Depositor
shall promptly file, and exercise its reasonable best efforts to obtain a
favorable response to, no-action requests to, or requests for other appropriate
exemptive relief from, the Commission regarding the usual and customary
exemption from certain reporting requirements granted to issuers of securities
similar to the Certificates.
SECTION 8.14 Fiscal Agent Appointed; Concerning the
Fiscal Agent.
(a) The Trustee hereby appoints ABN AMRO Bank N.V. as the
initial Fiscal Agent hereunder for the purposes of exercising and performing the
obligations and duties imposed upon the Fiscal Agent hereunder.
(b) The Fiscal Agent undertakes to make Advances as
specifically set forth hereunder and the Fiscal Agent shall not be liable except
for the making of Advances.
(c) No provision of this Agreement shall be construed to
relieve the Fiscal Agent from liability for its own negligent failure to act,
bad faith or its own willful misfeasance; provided, however, that (i) the duties
and obligations of the Fiscal Agent shall be determined solely by the express
provisions hereunder, and the Fiscal Agent shall not be liable except for the
performance of such duties and obligations, (ii) no implied covenants or
obligations shall be read into this Agreement against the Fiscal Agent and, in
the absence of bad faith on the part of the Fiscal Agent, the Fiscal Agent may
conclusively rely, as to the truth and correctness of the statements or
conclusions expressed therein, upon any resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Fiscal Agent by the Master Servicer, the Special Servicer or the Depositor and
which on their face do not contradict the requirements of this Agreement, and
(iii) the provisions of clauses (ii) and (iii) of Section 8.01(c) shall apply to
the Fiscal Agent.
(d) The Fiscal Agent also shall have the benefit of provisions
of clauses (i), (ii), (iii), (iv), (v), (vi) and (viii) of Section 8.02.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation
of All Mortgage Loans.
Subject to Section 9.02, the Trust and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent and the REMIC Administrator (other than the obligations of the
Trustee to provide for and make payments to Certificateholders as hereafter set
forth and the obligations of the REMIC Administrator to file the final Tax
Returns for REMIC I and REMIC II and to maintain the books and records thereof
for a commercially reasonable period) shall terminate upon payment (or provision
for payment) to the Certificateholders of all amounts held by or on behalf of
the Trustee and required hereunder to be so paid on the Distribution Date
following the earlier to occur of (i) the purchase by the Master Servicer or by
any Majority Certificateholder of the Controlling Class (other than the
Depositor or the Mortgage Loan Seller) of all Mortgage Loans and each REO
Property remaining in REMIC I at a price (to be calculated by the Master
Servicer as of the close of business on the third Business Day preceding the
date upon which notice of any such purchase is furnished to Certificateholders
pursuant to the third paragraph of this Section 9.01 and as if the purchase was
to occur on such Business Day) equal to (A) the aggregate Purchase Price of all
the Mortgage Loans included in REMIC I, plus (B) the appraised value of each REO
Property, if any, included in REMIC I (such appraisal to be conducted by a
Qualified Appraiser selected by the Master Servicer and approved by the
Trustee), minus (C) if such purchase is being made by the Master Servicer, the
aggregate amount of unreimbursed Advances made by the Master Servicer, together
with any Advance Interest payable to the Master Servicer in respect of such
Advances and any unpaid Master Servicing Fees remaining outstanding (which items
shall be deemed to have been paid or reimbursed to the Master Servicer in
connection with such purchase), and (ii) the final payment or other liquidation
(or any Advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof.
The Majority Certificateholder of the Controlling Class (other
than the Depositor or the Mortgage Loan Sellers) has the right, and if the
Majority Certificateholder of the Controlling Class fails to exercise such
right, the Master Servicer has the right, to purchase all of the Mortgage Loans
and each REO Property remaining in REMIC I as contemplated by clause (i) of the
preceding paragraph by giving written notice to the other parties hereto no
later than 60 days prior to the anticipated date of purchase; provided, however,
that the Master Servicer and any Majority Certificateholder of the Controlling
Class (other than the Depositor or the Mortgage Loan Sellers) each may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.0% of the Initial Pool Balance. In the event
that the Master Servicer or any Majority Certificateholder of the Class (other
than the Depositor or the Mortgage Loan Sellers) elects to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I in accordance with the
preceding sentence, the Master Servicer or such Majority Certificateholder, as
applicable, shall deposit in the Distribution Account not later than the Master
Servicer Remittance Date relating to the Distribution Date on which the final
distribution on the Certificates is to occur, an amount in immediately available
funds equal to the above-described purchase price (exclusive of any portion
thereof payable to any Person other than the Certificateholders pursuant to
Section 3.05(a), which portion shall be deposited in the Certificate Account).
In addition, the Master Servicer shall transfer all amounts required to be
transferred to the Distribution Account on such Master Servicer Remittance Date
from the Certificate Account pursuant to the first paragraph of Section 3.04(b).
Upon confirmation that such final deposits have been made, the Trustee shall
release or cause to be released to the purchaser or its designee, the Mortgage
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments, in each case without recourse,
representation or warranty, furnished to it by the purchaser, as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in REMIC I.
Notice of any termination shall be given promptly by the
Trustee by letter to Certificateholders and, if not previously notified pursuant
to the preceding paragraph, to the other parties hereto mailed (a) in the event
such notice is given in connection with a purchase by the Master Servicer or any
Majority Certificateholder of the Controlling Class (other than the Depositor or
the Mortgage Loan Sellers) of all of the Mortgage Loans and each REO Property
remaining in REMIC I, not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of the final distribution on the
Certificates or (b) otherwise during the month of such final distribution on or
before the 5th day of such month, in each case specifying (i) the Distribution
Date upon which the Trust will terminate and final payment on the Certificates
will be made, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the offices of the Certificate Registrar or such other location therein
designated.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount for such date that is allocable to payments on the relevant
Class in accordance with Section 4.01(b). Final Distributions on the REMIC I
Regular Interests shall be made on such date as provided in Section 4.01(a).
Any funds not distributed to any Holder or Holders of
Certificates of any Class on the Final Distribution Date because of the failure
of such Holder or Holders to tender their Certificates shall, on such date, be
set aside and held uninvested in trust and credited to the account or accounts
of the appropriate non-tendering Holder or Holders. If any Certificates as to
which notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, the Class R-II Certificateholders shall be entitled to all
unclaimed funds and other assets which remain subject thereto and the Trustee
shall have no further obligation or liability therefor.
SECTION 9.02 Additional Termination Requirements.
(a) In the event the Master Servicer or a Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) purchases all of the Mortgage Loans and each REO Property
remaining in REMIC I as provided in Section 9.01, the Trust (and, accordingly,
REMIC I and REMIC II) shall be terminated in accordance with the following
additional requirements, unless the Master Servicer or such Majority
Certificateholder, as applicable, obtains at its own expense and delivers to the
Trustee and the REMIC Administrator an Opinion of Counsel, addressed to the
Trustee and the REMIC Administrator, to the effect that the failure of the Trust
to comply with the requirements of this Section 9.02 will not result in the
imposition of taxes on "prohibited transactions" of REMIC I or REMIC II as
defined in Section 860F of the Code or cause REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each of REMIC I and REMIC II pursuant to Treasury
Regulations Section 1.860F-1;
(ii) during such 90-day liquidation period and at or prior to
the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I to the Master Servicer
or the Majority Certificateholder of the Controlling Class, as
applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the applicable Class of
Residual Certificates all cash on hand (other than cash retained to
meet claims), and each of REMIC I and REMIC II shall terminate at that
time.
If the requirements of (i), (ii) and (iii) above are complied
with, the Trustee shall not be required to request an Opinion of Counsel
described above in the first sentence of this Section 9.02(a), provided no
amendment to the applicable provisions of the REMIC Provisions modify such
requirements, and otherwise the Trustee shall require such an Opinion of
Counsel.
(b) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the REMIC Administrator to specify the date of
adoption of the plan of complete liquidation of each of REMIC I and REMIC II in
accordance with the terms and conditions of this Agreement, which authorization
shall be binding upon all successor Certificateholders.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC
I and REMIC II as a REMIC under the Code and, if necessary, under Applicable
State Law. Each such election will be made on Form 1066 or other appropriate
federal or state Tax Returns for the taxable year ending on the last day of the
calendar year in which the Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the Class R-I Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC I.
The Class X, Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F
and Class G Certificates are hereby designated as the "regular interests"
(within the meaning of Section 860G(a)(1) of the Code), and the Class R-II
Certificates are hereby designated as the sole Class of "residual interest"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the
REMIC Administrator, the Master Servicer, the Special Servicer or the Trustee
shall, to the extent it is within the control of such Person, create or permit
the creation of any other "interests" in either REMIC I or REMIC II (within the
meaning of Treasury Regulations Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day"
of each of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the
Code. The "latest possible maturity date", within the meaning of Treasury
Regulations Section 1.860G-1(a)(4)(iii) of the REMIC I Regular Interests and the
REMIC II Regular Certificates is January 22, 2024, the Distribution Date
following the latest maturity date of any Mortgage Loan.
(d) The REMIC Administrator is hereby designated as agent for
the Tax Matters Person of each of REMIC I and REMIC II and shall: act on behalf
of the Trust in relation to any tax matter or controversy, represent the Trust
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority, request an administrative adjustment as to
any taxable year of REMIC I or REMIC II, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of REMIC I or REMIC II, and otherwise act on behalf of each of
REMIC I and REMIC II in relation to any tax matter or controversy involving such
REMIC. By their acceptance thereof, the Holders of the Residual Certificates
hereby agree to irrevocably appoint the REMIC Administrator as their agent to
perform all of the duties of the Tax Matters Person for REMIC I and REMIC II.
Subject to Section 10.01(h), the legal expenses and costs of any action
described in this subsection (d) and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust, and the REMIC Administrator shall
be entitled to be reimbursed therefor out of any amounts on deposit in the
Distribution Account as provided by Section 3.05(b).
(e) The REMIC Administrator shall prepare and file, and the
Trustee shall sign, all of the Tax Returns in respect of each of REMIC I and
REMIC II. The expenses of preparing and filing such returns shall be borne by
the REMIC Administrator without any right of reimbursement therefor.
(f) The REMIC Administrator shall perform on behalf of each of
REMIC I and REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the IRS or any other taxing authority under
Applicable State Law. Included among such duties, the REMIC Administrator shall
provide to: (i) any Transferor of a Residual Certificate and the Internal
Revenue Service, such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any Person who is a
Disqualified Organization; (ii) the Certificateholders, such information or
reports as are required by the Code or the REMIC Provisions, including, without
limitation, reports relating to interest, original issue discount and market
discount or premium (using the Prepayment Assumption as required); and (iii) the
IRS, the name, title, address and telephone number of the Person who will serve
as the representative of each of REMIC I and REMIC II.
(g) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of REMIC I and REMIC II as a REMIC under the REMIC Provisions
(and each of the other parties hereto shall assist it, to the extent reasonably
requested by it). The REMIC Administrator shall not knowingly take (or cause
either REMIC I or REMIC II to take) any action or fail to take (or fail to cause
to be taken) any action within the scope of its duties more specifically set
forth hereunder that, under the REMIC Provisions, if taken or not taken, as the
case may be, could result in an Adverse REMIC Event with respect to either such
REMIC, unless the REMIC Administrator has received an Opinion of Counsel to the
effect that the contemplated action will not result in an Adverse REMIC Event.
None of the other parties hereto shall take any action (whether or not
authorized hereunder) as to which the REMIC Administrator has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to REMIC I or REMIC II, or causing REMIC I or
REMIC II to take any action, that is not expressly permitted under the terms of
this Agreement, each of the other parties hereto will consult with the REMIC
Administrator, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur. None of the parties hereto shall take any such
action or cause REMIC I or REMIC II to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur. The REMIC Administrator may consult with counsel to make such written
advice, and the cost of same shall be borne: (i) if such action that is not
expressly permitted by this Agreement would be of a material benefit to or
otherwise in the best interests of the Certificateholders as a whole, by the
Trust and shall be paid by the Trustee at the direction of the REMIC
Administrator out of amounts on deposit in the Distribution Account; and (ii)
otherwise by the party seeking to take the action not permitted by this
Agreement.
(h) In the event that any tax is imposed on REMIC I or REMIC
II, including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any taxes on contributions to REMIC I or REMIC
II after the Startup Day pursuant to Section 860G(d) of the Code, and any other
tax imposed by the Code or any applicable provisions of state or local tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the REMIC Administrator, if such tax arises out
of or results from a breach by the REMIC Administrator of any of its obligations
under this Article X; (ii) the Trustee, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iv) the Special Servicer, if such tax arises out of or results from a breach
by the Special Servicer of any of its obligations under Article III or this
Article X; or (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee at the direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account.
(i) The REMIC Administrator and, to the extent that records
are maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of REMIC I and REMIC II on a calendar year and on
an accrual basis. Such records with respect to REMIC I shall include, for each
Distribution Date, the applicable Uncertificated Principal Balance, REMIC I
Remittance Rate, and each category of distribution on or with respect to the
REMIC I Regular Interests.
(j) Following the Startup Day therefor, the Trustee shall not
accept any contributions of assets to REMIC I or REMIC II unless it shall have
received an Opinion of Counsel (at the expense of the party seeking to cause
such contribution) to the effect that the inclusion of such assets in such REMIC
will not cause: (i) such REMIC to fail to qualify as a REMIC at any time that
any Certificates are outstanding; or (ii) the imposition of any tax on such
REMIC under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(k) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall consent to or, to the extent it is within
the control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of the Mortgage Loan Sellers regarding the Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default of a Mortgage Loan, including but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed-in-lieu of foreclosure, (C)
the bankruptcy of REMIC I or REMIC II, or (D) the termination of the Trust
pursuant to Article IX of this Agreement); (ii) the sale or disposition of any
investments in the Certificate Account or the REO Account for gain; or (iii) the
acquisition of any assets for the Trust Fund (other than a Mortgaged Property
acquired through foreclosure, deed-in-lieu of foreclosure or otherwise in
respect of a defaulted Mortgage Loan and other than Permitted Investments
acquired in connection with the investment of funds in the Certificate Account
or the REO Account); in any event unless it has received an Opinion of Counsel
(from and at the expense of the party seeking to cause such sale, disposition,
or acquisition) to the effect that such sale, disposition, or acquisition will
not cause: (x) REMIC I or REMIC II to fail to qualify as a REMIC at any time
that any Certificates are outstanding; or (y) the imposition of any tax on REMIC
I or REMIC II under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(l) Except as otherwise permitted by Section 3.17(a) and
Section 3.20(d), none of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall enter into any arrangement by which REMIC
I or REMIC II will receive a fee or other compensation for services or, to the
extent it is within the control of such Person, permit REMIC I or REMIC II to
receive any income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code. At all times as may be required by the Code, the REMIC
Administrator shall make reasonable efforts to ensure that substantially all of
the assets of REMIC I and REMIC II will consist of "qualified mortgages" as
defined in Section 860G(a)(3) of the Code and "permitted investments" as defined
in Section 860G(a)(5) of the Code.
SECTION 10.02 Depositor, Master Servicer, Special
Servicer and Trustee to Cooperate with REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the
REMIC Administrator, within ten (10) days after the Closing Date, all
information or data that the REMIC Administrator reasonably determines to be
relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates. The REMIC Administrator
is hereby directed to treat the Class X Certificates as issued with original
issue discount in an amount equal to the excess of all distributions of interest
expected to be received thereon over the issue price of the Class X Certificates
(including accrued interest).
(b) The Master Servicer, the Special Servicer and the Trustee
shall each furnish such reports, certifications and information, and access to
such books and records maintained thereby, as may relate to the Certificates or
the Trust Fund and as shall be reasonably requested by the REMIC Administrator
in order to enable it to perform its duties hereunder.
(c) No provision of this Agreement shall be construed to
relieve the REMIC Administrator from liability for its own negligent failure to
act, bad faith or its own willful misfeasance; provided, however, that (I) the
duties and obligations of the REMIC Administrator shall be determined solely by
the express provisions hereunder, and the REMIC Administrator shall not be
liable except for the performance of such duties and obligations, and (ii) no
implied covenants or obligations shall be read into this Agreement against the
REMIC Administrator and, in the absence of bad faith on the part of the REMIC
Administrator, the REMIC Administrator may conclusively rely, as to the truth
and correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the REMIC Administrator by the Trustee, the
Master Servicer, the Special Servicer or the Depositor and which on their face
do not contradict the requirements of this Agreement.
(d) To the extent consistent with its duties as specifically
set forth in this Article X, the REMIC Administrator also shall have the benefit
of provisions of clauses (i), (ii), (iii) (iv), (v), (vii) and (viii) of Section
8.02.
(e) The recitals contained herein and in the Certificates
(other than the representations and warranties of the REMIC Administrator
Section 2.08(a) and (d)) shall be taken as the statements of the Depositor, the
Mortgage Loan Seller, the Master Servicer or the Special Servicer, as the case
may be, and the REMIC Administrator assumes no responsibility for their
correctness. The REMIC Administrator makes no representations as to the validity
or sufficiency of this Agreement (other than as specifically set forth in
Section 2.08(a) and (d)) or of any Certificate or of any Mortgage Loan or
related document. The REMIC Administrator shall not be liable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor or the Mortgage Loan Seller in respect of the assignment of the
Mortgage Loans to the Trust, or any funds deposited in or withdrawn from the
Certificate Account or any other account by or on behalf of the Depositor, the
Master Servicer or the Special Servicer.
SECTION 10.03 Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not
the same Person, the Trustee covenants and agrees to pay to the REMIC
Administrator from time to time, and the REMIC Administrator shall be entitled
to, reasonable compensation (as set forth in a written agreement between the
Trustee and the REMIC Administrator) for all services rendered by it in the
exercise and performance of any of the obligations and duties of the REMIC
Administrator hereunder.
SECTION 10.04 Use of Agents.
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys-in-fact
consented to by the Trustee, which consent shall not be unreasonably withheld;
provided that the REMIC Administrator shall not be relieved of its liabilities,
duties and obligations hereunder by reason of the use of any such agent or
attorney-in-fact.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the
mutual agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be defective or may be inconsistent
with any other provision herein, (iii) to add any other provisions with respect
to matters or questions arising hereunder which shall not be inconsistent with
the provisions hereof, (iv) to relax or eliminate any requirement hereunder
imposed by the REMIC Provisions if the REMIC Provisions are amended or clarified
such that any such requirement may be relaxed or eliminated; (v) if such
amendment, as evidenced by an Opinion of Counsel delivered to the Trustee and
the REMIC Administrator, is reasonably necessary to comply with any requirements
imposed by the Code or any successor or amendatory statute or any temporary or
final regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to REMIC I
or REMIC II at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to the
operation of REMIC I or REMIC II; (vi) to modify, add to or eliminate any
provisions of Section 5.02(d)(i), (ii) and (iii); or (vii) for any other
purpose; provided that such amendment (other than any amendment for the specific
purposes described in clauses (v) and (vi) above) shall not, as evidenced by an
Opinion of Counsel obtained by or delivered to the Trustee, adversely affect in
any material respect the interests of any Certificateholder without such
Certificateholder's written consent; and provided further that such amendment
(other than any amendment for any of the specific purposes described in clauses
(i) through (vi) above) shall not result in a downgrade, qualification or
withdrawal of any rating then assigned to any Class of Certificates by any
Rating Agency (as evidenced by written confirmation to such effect from each
Rating Agency obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by
the mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on the Mortgage Loans and any REO Properties
which are required to be distributed on any Certificate without the written
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (b)(i) without the written consent of the
Holders of all Certificates of such Class, or (iii) modify the provisions of
this Section 11.01 without the written consent of the Holders of all
Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer or any of their
respective Affiliates shall be entitled to the same Voting Rights with respect
to matters described above as they would if any other Person held such
Certificates. For purposes of this Section 11.01(b), a Class of Certificates is
an "affected Class" if and only if it would, as the result of any such
amendment, experience any of the effects described in clauses (i), (ii) and
(iii) of this Section 11.01(b).
(c) At the direction of the Holders of Certificates entitled
to 100% of the Voting Rights allocated to the affected Classes, and with the
agreement of all of the parties hereto (none of which shall withhold its
agreement unless its obligations hereunder would be materially increased), the
Agreement shall be amended for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates, including
without limitation, (i) to cause such Classes to be restructured, (ii) to create
in connection with any restructuring one or more new classes of Certificates,
(iii) to make in connection with any such restructuring one or more additional
REMIC elections with respect to the Trust Fund and (iv) to provide for the
book-entry registration of any such existing or newly created classes of
Certificates. For purposes of this Section 11.01(c), a Class of Certificates is
an "affected Class" if and only if it would, as the result of any such
amendment, experience any of the effects described in clauses (i), (ii) and
(iii) of Section 11.01(b). Any restructuring pursuant to this Section 11.01(c)
shall require the prior written approval of each Rating Agency and confirmation
of the ratings of each such Class of Certificates (taking into account such
restructuring), including confirmation that such restructuring will not result
in the withdrawal, downgrade or qualification of the ratings then assigned to
the Class C, Class D, Class E, Class F and Class G Certificates.
(d) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the REMIC Administrator shall consent to any amendment
to this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to any party hereto in accordance with such amendment (i) is
permitted hereunder, and (ii) will not result in the imposition of a tax on
REMIC I or REMIC II pursuant to the REMIC Provisions or cause REMIC I or REMIC
II to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
(e) Promptly after the execution of any such amendment, the
Trustee shall furnish a copy of the amendment to each Certificateholder.
(f) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe; provided
that such consents shall be in writing.
(g) The Trustee may but shall not be obligated to enter into
any amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(h) The cost of any Opinion of Counsel to be delivered
pursuant to Section 11.01(a) or (d) shall be borne by the Person seeking the
related amendment, except that if the Trustee requests any amendment of this
Agreement in furtherance of the rights and interests of Certificateholders, the
cost of any Opinion of Counsel required in connection therewith pursuant to
Section 11.01(a) or (d) shall be payable out of the Distribution Account.
SECTION 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders. It is acknowledged that the Trustee has no obligation
to monitor whether such recordation in necessary under this section.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except
as expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and (except in the case of a default by the Trustee)
the Holders of Certificates entitled to at least 25% of the Voting Rights shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04 Governing Law.
This Agreement and the Certificates shall be construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 11.05 Notices.
Any communications provided for or permitted hereunder shall
be in writing and, unless otherwise expressly provided herein, shall be deemed
to have been duly given when delivered to: (1) in the case of the Depositor,
NationsLink Funding Corporation, NationsBank Corporate Center, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: Xxxxx X. Xxxxxxx, telecopy
number: (000) 000-0000 (with copies to Xxxxxx X. Xxxx, Esq., Assistant General
Counsel, NationsBank Corporation, NationsBank Corporate Center, 000 Xxxxx Xxxxx
Xxxxxx (00xx Xxxxx), Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, telecopy number: (704)
386-6453; (2) in the case of the NationsBank, NationsBank, N.A., NationsBank
Corporate Center, NC1-007-07-01, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, telecopy number: (000) 000-0000; (3)
in the case of CLF, Capital Lease Funding, L.P., 000 Xxxxxx Xxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. XxXxxxxx, telecopy number: (212)
217-6301 (with a copy to Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxx, Esq., telecopy number: (212)
504-6666); (4) in the case of the Master Servicer and the Special Servicer,
Midland Loan Services, Inc., 000 Xxxx 00xx Xxxxxx, 0xx xxxxx, Xxxxxx Xxxx,
Xxxxxxxx, Attention: President, telecopy number: (000) 000-0000; (with a copy to
Xxxxxxx X. Xxxxxx, Esq., Xxxxxxxx & Xxxxxx L.L.P., 0000 Xxxxx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000, telecopy number: (000) 000-0000); (5) in the case of the
Trustee and REMIC Administrator, LaSalle National Bank, 000 Xxxxx XxXxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed Securities Trust Services
Group, NationsLink Funding Corporation, Series 1999-LTL-1, telecopy number:
(000) 000-0000; and (7) in the case of the Rating Agencies, (A) Duff & Xxxxxx
Credit Rating Co., 00 Xxxx Xxxxxx Xxxxxx, Xxxxx 00, Xxxxxxx, Xxxxxxxx 00000,
Attention: Commercial Mortgage Monitoring Group, telecopy number: (312)
263-2852; (B) Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Commercial MBS Monitoring Department, telecopy number:
(000) 000-0000 and (C) Standard & Poor's Ratings Services, Inc., 00 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage Group Surveillance
Manager, telecopy number: (000) 000-0000; or as to each such Person such other
address as may hereafter be furnished by such Person to the parties hereto in
writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto, and all such provisions shall inure to the benefit of the
Certificateholders. Except as specifically contemplated by Sections 3.22, 3.24,
6.03 and 8.05, no other person, including, without limitation, any Mortgagor,
shall be entitled to any benefit or equitable right, remedy or claim under this
Agreement.
SECTION 11.08 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09 Notices to and from Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default hereunder
that has not been cured;
(iii) the resignation or termination of the Master Servicer,
the Special Servicer or the REMIC Administrator and the appointment of
a successor;
(iv) any change in the location of the Distribution
Account;
(v) the final payment to any Class of
Certificateholders; and
(vi) the repurchase of any Mortgage Loan by a Mortgage Loan
Seller pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
(i) the resignation or removal of the Trustee and the
appointment of a successor;
(ii) any change in the location of the Certificate
Account;
(iii) any event that would result in the voluntary or
involuntary termination of any insurance of the accounts of the
Trustee;
(iv) any material casualty at or condemnation or eminent
domain proceeding in respect of a Mortgaged Property; and
(v) the vacating by an anchor tenant of a retail Mortgaged
Property.
(c) Each of the Master Servicer and the Special Servicer, as
the case may be, shall furnish to each Rating Agency such information with
respect to the Mortgage Loans as the Rating Agency shall reasonably request and
which the Master Servicer or the Special Servicer, as the case may be, can
reasonably provide.
(d) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance
described in Section 3.13; and
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14, if any.
In addition, as and to the extent required by Section 3.12(b),
each of the Master Servicer and the Special Servicer shall promptly furnish to
each Rating Agency copies or summaries (in such format as will be acceptable to
the Rating Agency) of any of the written reports (including, without limitation,
reports regarding property inspections) prepared, and any of the quarterly and
annual operating statements, rent rolls and financial statements collected, by
it pursuant to Section 3.12(b).
(e) The Trustee shall promptly furnish each Rating Agency on a
monthly basis, to the extent not made available on the Trustee's Website, copies
of the statements to the Holders of the REMIC II Regular Certificates required
by the first paragraph of Section 4.02(a).
(f) To the extent reasonably possible, all information and
reports delivered or made available to the Rating Agencies, or a Class C, Class
D, Class E, Class F and Class G Certificateholder (if requested by such Holder),
by any of the Trustee, the Master Servicer or the Special Servicer pursuant to
this Section 11.09, shall be so delivered or otherwise made available through an
electronic medium.
(g) Each Rating Agency shall provide to the Trustee, upon its
request, a listing of the then current rating on any Certificate then
outstanding.
SECTION 11.10 Standing Requests for Information.
For the avoidance of doubt, it is noted that to the extent
that any Rating Agency, or any Holder of a Class C, Class D, Class E, Class F or
Class G Certificate, is stated herein to be entitled to obtain from the Master
Servicer or the Special Servicer, upon request, any particular report or other
item of information obtained or prepared with respect to the Mortgage Loans by
the parties to this Agreement in the course of their performance hereof, such
request by such Person may take the form of a standing request to the Master
Servicer or the Special Servicer, as the case may be, to receive all such
reports or items until further notice.
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers or representatives thereunto
duly authorized, in each case as of the day and year first above written.
NATIONSLINK FUNDING CORPORATION,
Depositor
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
NATIONSBANK, N.A.,
Mortgage Loan Seller
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
CAPITAL LEASE FUNDING, L.P.,
Mortgage Loan Seller
By: CLF Holdings, Inc.
its General Partner
By: /s/ Xxxx X. XxXxxxxx
-------------------------------
Name: Xxxx X. XxXxxxxx
Title: Vice President
MIDLAND LOAN SERVICES, INC.,
Master Servicer and Special Servicer
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
LASALLE NATIONAL BANK,
Trustee and REMIC Administrator
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Asst. Vice President
ABN AMRO BANK N.V.,
Fiscal Agent
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Group Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 10th day of March, 1999, before me, a notary public in
and for said State, personally appeared Xxxxx X. Xxxxxxx known to me to be a
Senior Vice President of NATIONSLINK FUNDING CORPORATION and NATIONSBANK, N.A.,
two of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entities, and acknowledged to me
that such person executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx X. Xxxxx
------------------------------
Notary Public
[Notarial Seal]
My commission expires: May 19, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 3rd day of March, 1999, before me, a notary public in
and for said State, personally appeared Xxxx X. XxXxxxxx known to me to be a
Vice President of CLF HOLDINGS, INC., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxx
------------------------------
Notary Public
[Notarial Seal]
My commission expires November 17, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXXXXX )
On the 2nd day of March, 1999, before me, a notary public in and for said
State, personally appeared Xxxx X. Xxxxxxx known to me to be an Executive Vice
President of MIDLAND LOAN SERVICES, INC., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ June X. Xxx
------------------------------
Notary Public
[Notarial Seal]
My commission expires: June 12, 2001
STATE OF ILLIONIS )
) ss.:
COUNTY OF XXXX )
On this 10th day of March, 1999, before me, Xxxxx Xxxxxxxx, a notary public
in and for said State, personally appeared Xxxxxxx X. Xxxxx known to me to be an
Assistant Vice President of LASALLE NATIONAL BANK, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx, Notary Public
My Commission Expires: 12/15/2002
[Notarial Seal]
STATE OF ILLINIOS )
) ss.:
COUNTY OF XXXX )
On the 10th day of March, 1999, before me, Xxxxx Xxxxxxxx, a notary public
in and for said State, personally appeared Xxxx X. Xxxxx, Vice President, and
Xxxxxx X. Xxxxxx, Group Vice President of ABN AMRO BANK N.V., one of the
corporations that executed the within instrument, and also known to me to be the
persons who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
------------------------------
Notary Public
[Notarial Seal]
My commission expires: December 15, 2002
Exhibit A-1
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL LOAN
PASS-THROUGH CERTIFICATE,
SERIES 1999-LTL-1
This is one of a series of commercial loan pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of this
[_____]% per annum Certificate as of the Issue Date:
$______________
Date of Pooling and Servicing Agreement: February 15, 1999
Class Principal Balance of all the Class A-1
Cut-off Date: February 15, 1999 Certificates as of the Issue Date: $75,245,000
Issue Date: March 11, 1999 Approximate Aggregate unpaid principal balance
of the Mortgage Pool as of the Cut-off Date,
First Distribution Date: after deducting payments of principal due on or
March 22, 1999 before such date (the "Initial Pool Balance"):
$492,491,697
Master Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator:
Special Servicer: LaSalle National Bank
Midland Loan Services, Inc.
Mortgage Loan Sellers: Fiscal Agent:
NationsBank, N.A. and ABN AMRO Bank N.V.
Capital Lease Funding, L.P.
Certificate No. A-1-___ CUSIP No. 63859C CD 3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., LASALLE NATIONAL BANK, ABN AMRO BANK
N.V., MIDLAND LOAN SERVICES, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Sellers,
Master Servicer, Special Servicer, Trustee, REMIC Administrator and Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 22nd day of each month or, if such 22nd day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the 15th day of the month
of such distribution (the "Record Date"), in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount required to
be distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to the Record Date for such distribution (which wiring instructions may be
in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Trustee, the REMIC Administrator, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Trustee, the REMIC Administrator, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Sellers) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Special Servicer, the Fiscal Agent, the Trustee and the REMIC Administrator
thereunder and the rights of the Certificateholders thereunder, at any time by
the Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee and the REMIC Administrator with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of REMIC I or REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle National Bank,
as Trustee
By: _________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By: _________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
___ (please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Loan Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Loan Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Loan Pass-Through Certificate to the following
address: ______________________________________________________________________
_______________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________ , the assignee
named above, or _________________________________________, as its agent.
Exhibit A-2
Form of Class A-2 Certificate
CLASS A-2 COMMERCIAL LOAN
PASS-THROUGH CERTIFICATE,
SERIES 1999-LTL-1
This is one of a series of commercial loan pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of this
[_____]% per annum Certificate as of the Issue Date:
$______________
Date of Pooling and Servicing Agreement: February 15, 1999
Class Principal Balance of all the Class A-2
Cut-off Date: February 15, 1999 Certificates as of the Issue Date: $193,863,000
Issue Date: March 11, 1999 Approximate Aggregate unpaid principal balance
of the Mortgage Pool as of the Cut-off Date,
First Distribution Date: after deducting payments of principal due on or
March 22, 1999 before such date (the "Initial Pool Balance"):
$492,491,697
Master Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator:
Special Servicer: LaSalle National Bank
Midland Loan Services, Inc.
Mortgage Loan Sellers: Fiscal Agent:
NationsBank, N.A. and ABN AMRO Bank N.V.
Capital Lease Funding, L.P.
Certificate No. A-2-__ CUSIP No. 63859C CE 1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., LASALLE NATIONAL BANK, ABN AMRO BANK
N.V., MIDLAND LOAN SERVICES, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Sellers,
Master Servicer, Special Servicer, Trustee, REMIC Administrator and Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 22nd day of each month or, if such 22nd day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the 15th day of the month
of such distribution (the "Record Date"), in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount required to
be distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to the Record Date for such distribution (which wiring instructions may be
in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Trustee, the REMIC Administrator, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Trustee, the REMIC Administrator, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Sellers) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Special Servicer, the Fiscal Agent, the Trustee and the REMIC Administrator
thereunder and the rights of the Certificateholders thereunder, at any time by
the Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee and the REMIC Administrator with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of REMIC I or REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle National Bank,
as Trustee
By: _________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By: _________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
___ (please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Loan Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Loan Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Loan Pass-Through Certificate to the following
address: ______________________________________________________________________
_______________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________ , the assignee
named above, or _________________________________________, as its agent.
Exhibit A-3
Form of Class A-3 Certificate
CLASS A-3 COMMERCIAL LOAN
PASS-THROUGH CERTIFICATE,
SERIES 1999-LTL-1
This is one of a series of commercial loan pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of this
[_____]% per annum Certificate as of the Issue Date:
$______________
Date of Pooling and Servicing Agreement: February 15, 1999
Class Principal Balance of all the Class A-3
Cut-off Date: February 15, 1999 Certificates as of the Issue Date: $127,347,816
Issue Date: March 11, 1999 Approximate Aggregate unpaid principal balance
of the Mortgage Pool as of the Cut-off Date,
First Distribution Date: after deducting payments of principal due on or
March 22, 1999 before such date (the "Initial Pool Balance"):
$492,491,697
Master Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator:
Special Servicer: LaSalle National Bank
Midland Loan Services, Inc.
Mortgage Loan Sellers: Fiscal Agent:
NationsBank, N.A. and ABN AMRO Bank N.V.
Capital Lease Funding, L.P.
Certificate No. A-3-__ CUSIP No. 63859C CF 8
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., LASALLE NATIONAL BANK, ABN AMRO BANK
N.V., MIDLAND LOAN SERVICES, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Sellers,
Master Servicer, Special Servicer, Trustee, REMIC Administrator and Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 22nd day of each month or, if such 22nd day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the 15th day of the month
of such distribution (the "Record Date"), in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount required to
be distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to the Record Date for such distribution (which wiring instructions may be
in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Trustee, the REMIC Administrator, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Trustee, the REMIC Administrator, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Sellers) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Special Servicer, the Fiscal Agent, the Trustee and the REMIC Administrator
thereunder and the rights of the Certificateholders thereunder, at any time by
the Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee and the REMIC Administrator with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of REMIC I or REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle National Bank,
as Trustee
By: _________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By: _________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
___ (please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Loan Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Loan Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Loan Pass-Through Certificate to the following
address: ______________________________________________________________________
_______________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________ , the assignee
named above, or _________________________________________, as its agent.
Exhibit A-4
Form of Class X Certificate
CLASS X COMMERCIAL LOAN
PASS-THROUGH CERTIFICATE,
SERIES 1999-LTL-1
This is one of a series of commercial loan pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Notional Amount of this Certificate
Variable as of the Issue Date:
$______________
Date of Pooling and Servicing Agreement: February 15, 1999
Class Notional Amount of all the Class X
Cut-off Date: February 15, 1999 Certificates as of the Issue Date: $492,442,448
Issue Date: March 11, 1999 Approximate Aggregate unpaid principal balance
of the Mortgage Pool as of the Cut-off Date,
First Distribution Date: after deducting payments of principal due on or
March 22, 1999 before such date (the "Initial Pool Balance"):
$492,491,697
Master Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator:
Special Servicer: LaSalle National Bank
Midland Loan Services, Inc.
Mortgage Loan Sellers: Fiscal Agent:
NationsBank, N.A. and ABN AMRO Bank N.V.
Capital Lease Funding, L.P.
Certificate No. X-__ CUSIP No. 63859C CG 6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., LASALLE NATIONAL BANK, ABN AMRO BANK
N.V., MIDLAND LOAN SERVICES, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ISSUED ON MARCH 11, 1999, AT AN ISSUE PRICE OF 3.75398% OF
THE INITIAL CLASS X NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST, AND A STATED
REDEMPTION PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS HEREON, AND IS
ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES.
ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS
REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO USED TO PRICE THIS CERTIFICATE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL CLASS X NOTIONAL AMOUNT IS
APPROXIMATELY 2.95837327%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 8.67%; AND (III) THE AMOUNT OF
OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 11, 1999 TO MARCH 22,
1999), COMPUTED USING THE EXACT METHOD, AS A PERCENTAGE OF THE INITIAL CLASS X
NOTIONAL AMOUNT, IS APPROXIMATELY 0.00992491%.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among NationsLink Funding Corporation, as Depositor, and the
Mortgage Loan Sellers, Master Servicer, Special Servicer, Trustee, REMIC
Administrator and Fiscal Agent identified above. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 22nd day of each month or, if such 22nd day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the 15th day of the month
of such distribution (the "Record Date"), in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount required to
be distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to the Record Date for such distribution (which wiring instructions may be
in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Trustee, the REMIC Administrator, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Trustee, the REMIC Administrator, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Sellers) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Special Servicer, the Fiscal Agent, the Trustee, and the REMIC Administrator
thereunder and the rights of the Certificateholders thereunder, at any time by
the Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee and the REMIC Administrator with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of REMIC I or REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle National Bank,
as Trustee
By: _________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By: _________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
___ (please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Loan Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Loan Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Loan Pass-Through Certificate to the following
address: ______________________________________________________________________
_______________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________ , the assignee
named above, or _________________________________________, as its agent.
Exhibit A-5
Form of Class B Certificate
CLASS B COMMERCIAL LOAN
PASS-THROUGH CERTIFICATE,
SERIES 1999-LTL-1
This is one of a series of commercial loan pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of this
[_____]% per annum Certificate as of the Issue Date:
$______________
Date of Pooling and Servicing Agreement: February 15, 1999
Class Principal Balance of all the Class B
Cut-off Date: February 15, 1999 Certificates as of the Issue Date: $25,855,814
Issue Date: March 11, 1999 Approximate Aggregate unpaid principal balance
of the Mortgage Pool as of the Cut-off Date,
First Distribution Date: after deducting payments of principal due on or
March 22, 1999 before such date (the "Initial Pool Balance"):
$492,491,697
Master Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator:
Special Servicer: LaSalle National Bank
Midland Loan Services, Inc.
Mortgage Loan Sellers: Fiscal Agent:
NationsBank, N.A. and ABN AMRO Bank N.V.
Capital Lease Funding, L.P.
Certificate No. B-____ CUSIP No. 63859C CH 4
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., LASALLE NATIONAL BANK, ABN AMRO BANK
N.V., MIDLAND LOAN SERVICES, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, an opinion of counsel in form and
substance satisfactory to the Certificate Registrar and the depositor to the
effect that SUCH acquisition and holding of such certificate BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
FISCAL AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE UNDERWRITER OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Sellers,
Master Servicer, Special Servicer, Trustee, REMIC Administrator and Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 22nd day of each month or, if such 22nd day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the 15th day of the month
of such distribution (the "Record Date"), in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount required to
be distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to the Record Date for such distribution (which wiring instructions may be
in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Trustee, the REMIC Administrator, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Trustee, the REMIC Administrator, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Sellers) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Special Servicer, the Fiscal Agent, the Trustee and the REMIC Administrator
thereunder and the rights of the Certificateholders thereunder, at any time by
the Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee and the REMIC Administrator with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of REMIC I or REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle National Bank,
as Trustee
By: _________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By: _________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
___ (please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Loan Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Loan Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Loan Pass-Through Certificate to the following
address: ______________________________________________________________________
_______________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________ , the assignee
named above, or _________________________________________, as its agent.
Exhibit A-6
Form of Class C Certificate
CLASS C COMMERCIAL LOAN
PASS-THROUGH CERTIFICATE,
SERIES 1999-LTL-1
This is one of a series of commercial loan pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of this
[_____]% per annum Certificate as of the Issue Date:
$______________
Date of Pooling and Servicing Agreement: February 15, 1999
Class Principal Balance of all the Class C
Cut-off Date: February 15, 1999 Certificates as of the Issue Date: $20,930,897
Issue Date: March 11, 1999 Approximate Aggregate unpaid principal balance
of the Mortgage Pool as of the Cut-off Date,
First Distribution Date: after deducting payments of principal due on or
March 22, 1999 before such date (the "Initial Pool Balance"):
$492,491,697
Master Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator:
Special Servicer: LaSalle National Bank
Midland Loan Services, Inc.
Mortgage Loan Sellers: Fiscal Agent:
NationsBank, N.A. and ABN AMRO Bank N.V.
Capital Lease Funding, L.P.
Certificate No. C-__ CUSIP No. 63859C CJ 0
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., LASALLE NATIONAL BANK, ABN AMRO BANK
N.V., MIDLAND LOAN SERVICES, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, an opinion of counsel in form and
substance satisfactory to the Certificate Registrar and the depositor to the
effect that SUCH acquisition and holding of such certificate BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
FISCAL AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Sellers,
Master Servicer, Special Servicer, Trustee, REMIC Administrator and Fiscal Agent
identified a