1
Exhibit 4.1
Pooling and Servicing Agreement
2
EXECUTION COPY
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
and
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Special Servicer,
and
LASALLE NATIONAL BANK,
as Trustee,
and
ABN AMRO BANK N.V.,
Fiscal Agent,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Paying Agent
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 1999
----------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-WF1
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS................................................................................4
Section 1.1 Definitions...........................................................................4
Section 1.2 Calculations Respecting Mortgage Loans...............................................47
Section 1.3 Calculations Respecting Accrued Interest.............................................47
Section 1.4 Interpretation.......................................................................47
Section 1.5 Hyper-Amortization Loans.............................................................48
ARTICLE II DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES...........................................48
Section 2.1 Conveyance of Mortgage Loans.........................................................48
Section 2.2 Acceptance by Trustee................................................................50
Section 2.3 Sellers' Repurchase of Mortgage Loans for Document Defects
and Breaches of Representations and Warranties.......................................52
Section 2.4 Representations and Warranties.......................................................55
Section 2.5 Conveyance of Interests..............................................................56
ARTICLE III THE CERTIFICATES..........................................................................56
Section 3.1 The Certificates.....................................................................56
Section 3.2 Registration.........................................................................57
Section 3.3 Transfer and Exchange of Certificates................................................57
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates....................................62
Section 3.5 Persons Deemed Owners................................................................63
Section 3.6 Access to List of Certificateholders' Names and Addresses............................63
Section 3.7 Book-Entry Certificates..............................................................63
Section 3.8 Notices to Clearing Agency...........................................................66
Section 3.9 Definitive Certificates..............................................................67
ARTICLE IV ADVANCES..................................................................................68
Section 4.1 P&I Advances by Master Servicer......................................................68
Section 4.2 Servicing Advances...................................................................68
Section 4.3 Advances by the Trustee and the Fiscal Agent.........................................69
Section 4.4 Evidence of Nonrecoverability........................................................69
Section 4.5 Interest on Advances; Calculation of Outstanding Advances with
Respect to a Mortgage Loan...........................................................70
Section 4.6 Reimbursement of Advances and Advance Interest.......................................70
Section 4.7 Fiscal Agent Termination Event.......................................................71
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Section 4.8 Procedure Upon Termination Event.....................................................72
Section 4.9 Merger or Consolidation of Fiscal Agent..............................................73
Section 4.10 Limitation on Liability of the Fiscal Agent and Others...............................73
Section 4.11 Indemnification of Fiscal Agent......................................................73
ARTICLE V ADMINISTRATION OF THE TRUST...............................................................74
Section 5.1 Collections..........................................................................74
Section 5.2 Application of Funds in the Certificate Account and Interest
Reserve Account......................................................................77
Section 5.3 Distribution Account and Reserve Account.............................................79
Section 5.4 Paying Agent Reports.................................................................80
Section 5.5 Paying Agent Tax Reports.............................................................82
ARTICLE VI DISTRIBUTIONS.............................................................................83
Section 6.1 Distributions Generally..............................................................83
Section 6.2 REMIC I..............................................................................83
Section 6.3 REMIC II.............................................................................84
Section 6.4 REMIC III............................................................................89
Section 6.5 Allocation of Realized Losses, Expense Losses and Shortfalls Due
to Nonrecoverability.................................................................94
Section 6.6 Net Aggregate Prepayment Interest Shortfalls.........................................97
Section 6.7 Adjustment of Servicing Fees.........................................................97
Section 6.8 Appraisal Reductions.................................................................97
Section 6.9 Compliance with Withholding Requirements.............................................98
Section 6.10 Prepayment Premiums..................................................................98
ARTICLE VII CONCERNING THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT.............................99
Section 7.1 Duties of Trustee, the Fiscal Agent and the Paying Agent.............................99
Section 7.2 Certain Matters Affecting the Trustee, the Fiscal Agent and the
Paying Agent........................................................................101
Section 7.3 The Trustee, the Fiscal Agent and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans.........................................103
Section 7.4 The Trustee, the Fiscal Agent and Paying Agent May Own
Certificates........................................................................104
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Section 7.5 Eligibility Requirements for the Trustee, the Fiscal Agent and the
Paying Agent........................................................................104
Section 7.6 Resignation and Removal of the Trustee, the Fiscal Agent or the
Paying Agent........................................................................105
Section 7.7 Successor Trustee, Fiscal Agent or Paying Agent.....................................107
Section 7.8 Merger or Consolidation of Trustee, Fiscal Agent or Paying Agent....................108
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian...........................................................................108
Section 7.10 Authenticating Agents...............................................................110
Section 7.11 Indemnification of Trustee, the Fiscal Agent and the Paying Agent...................111
Section 7.12 Fees and Expenses of Trustee, the Fiscal Agent and Paying Agent.....................113
Section 7.13 Collection of Moneys................................................................113
Section 7.14 Trustee To Act; Appointment of Successor............................................113
Section 7.15 Notification to Holders.............................................................116
Section 7.16 Representations and Warranties of the Trustee, the Fiscal Agent
and the Paying Agent................................................................116
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee, the Fiscal Agent and the Paying Agent....................118
ARTICLE VIII ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...........................................119
Section 8.1 Servicing Standard; Servicing Duties................................................119
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicer...................................................120
Section 8.3 Master Servicer's General Power and Duties..........................................120
Section 8.4 Sub-Servicing.......................................................................124
Section 8.5 Master Servicer May Own Certificates................................................125
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and
Other...............................................................................125
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption Agreements...........................127
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files.............................129
Section 8.9 Documents, Records and Funds in Possession of Master Servicer
to be Held for the Trustee for the Benefit of the Certificateholders................130
Section 8.10 Servicing Compensation..............................................................130
Section 8.11 Master Servicer Reports; Account Statements.........................................131
Section 8.12 Annual Statement as to Compliance...................................................131
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Section 8.13 Annual Independent Public Accountants' Servicing Report.............................132
Section 8.14 Annual Reports Regarding the Mortgaged Properties...................................132
Section 8.15 Other Available Information and Certain Rights of the Master
Servicer............................................................................132
Section 8.16 Rule 144A Information...............................................................134
Section 8.17 Inspections.........................................................................135
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents.........................135
Section 8.19 Specially Serviced Mortgage Loans...................................................137
Section 8.20 Representations, Warranties and Covenants of the Master Servicer....................137
Section 8.21 Merger or Consolidation.............................................................139
Section 8.22 Resignation of Master Servicer......................................................139
Section 8.23 Assignment or Delegation of Duties by Master Servicer...............................139
Section 8.24 Limitation on Liability of the Master Servicer and Others...........................140
Section 8.25 Indemnification; Third-Party Claims.................................................142
Section 8.26 Exchange Act Reporting..............................................................144
Section 8.27 Compliance with REMIC Provisions....................................................144
Section 8.28 Termination.........................................................................144
Section 8.29 Procedure Upon Termination..........................................................146
ARTICLE IX ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER....147
Section 9.1 Duties of Special Servicer..........................................................147
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of
Special Servicer....................................................................148
Section 9.3 Sub-Servicers.......................................................................148
Section 9.4 Special Servicer General Powers and Duties..........................................148
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption Agreements;
Modifications of Specially Serviced Mortgage Loans..................................150
Section 9.6 Release of Mortgage Files...........................................................153
Section 9.7 Documents, Records and Funds in Possession of Special Servicer
To Be Held for the Trustee..........................................................154
Section 9.8 Representations, Warranties and Covenants of the Special Servicer...................155
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability
Insurance Policies..................................................................156
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Section 9.10 Presentment of Claims and Collection of Proceeds....................................158
Section 9.11 Compensation to the Special Servicer................................................158
Section 9.12 Realization Upon Defaulted Mortgage Loans...........................................159
Section 9.13 Foreclosure.........................................................................161
Section 9.14 Operation of REO Property...........................................................161
Section 9.15 Sale of REO Property................................................................164
Section 9.16 Realization on Collateral Security..................................................165
Section 9.17 Sale of Defaulted Mortgage Loans....................................................166
Section 9.18 Annual Officer's Certificate as to Compliance.......................................166
Section 9.19 Annual Independent Accountants' Servicing Report....................................166
Section 9.20 Merger or Consolidation.............................................................166
Section 9.21 Resignation of Special Servicer.....................................................166
Section 9.22 Assignment or Delegation of Duties by Special Servicer..............................167
Section 9.23 Limitation on Liability of the Special Servicer and Others..........................167
Section 9.24 Indemnification; Third-Party Claims.................................................169
Section 9.25 [RESERVED.].........................................................................171
Section 9.26 Special Servicer May Own Certificates...............................................171
Section 9.27 Tax Reporting.......................................................................171
Section 9.28 Application of Funds Received.......................................................171
Section 9.29 Compliance with REMIC Provisions....................................................172
Section 9.30 Termination.........................................................................172
Section 9.31 Procedure Upon Termination..........................................................173
Section 9.32 Certain Special Servicer Reports....................................................174
Section 9.33 Special Servicer to Cooperate with the Master Servicer and Paying
Agent...............................................................................176
Section 9.34 Certain REMIC Limitations on Modification of Specially Serviced
Mortgage Loans......................................................................177
Section 9.35 [RESERVED.].........................................................................177
Section 9.36 Sale of Defaulted Mortgage Loans and REO Properties.................................177
Section 9.37 Operating Adviser; Elections........................................................179
Section 9.38 Limitation on Liability of Operating Adviser........................................180
Section 9.39 Duties of Operating Adviser.........................................................180
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ARTICLE X PURCHASE AND TERMINATION OF THE TRUST....................................................181
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All
Mortgage Loans......................................................................181
Section 10.2 Procedure Upon Termination of Trust.................................................182
Section 10.3 Additional Trust Termination Requirements...........................................183
ARTICLE XI RIGHTS OF CERTIFICATEHOLDERS.............................................................185
Section 11.1 Limitation on Rights of Holders.....................................................185
Section 11.2 Access to List of Holders...........................................................185
Section 11.3 Acts of Holders of Certificates.....................................................186
ARTICLE XII REMIC ADMINISTRATION.....................................................................187
Section 12.1 REMIC Administration................................................................187
Section 12.2 Prohibited Transactions and Activities..............................................192
Section 12.3 Modifications of Mortgage Loans.....................................................192
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC Status....................193
ARTICLE XIII MISCELLANEOUS PROVISIONS.................................................................193
Section 13.1 Binding Nature of Agreement.........................................................193
Section 13.2 Entire Agreement....................................................................193
Section 13.3 Amendment...........................................................................193
Section 13.4 GOVERNING LAW.......................................................................195
Section 13.5 Notices.............................................................................195
Section 13.6 Severability of Provisions..........................................................196
Section 13.7 Indulgences; No Waivers.............................................................196
Section 13.8 Headings Not to Affect Interpretation...............................................196
Section 13.9 Benefits of Agreement...............................................................196
Section 13.10 Special Notices to the Rating Agencies..............................................196
Section 13.11 Counterparts........................................................................198
Section 13.12 Intention of Parties................................................................198
Section 13.13 Recordation of Agreement............................................................199
Section 13.14 Rating Agency Monitoring Fees.......................................................199
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An extra section break has been inserted above this paragraph. Do not delete
this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
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Table of Contents/Authorities.
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THIS POOLING AND SERVICING AGREEMENT is dated as of February
1, 1999 (this "Agreement") among XXXXXX XXXXXXX CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as master servicer (the "Master Servicer"), GMAC COMMERCIAL
MORTGAGE CORPORATION, as special servicer (the "Special Servicer"), LASALLE
NATIONAL BANK, as trustee of the Trust (the "Trustee"), ABN AMRO BANK N.V., only
in its capacity as a fiscal agent pursuant to Article IV hereof (the "Fiscal
Agent"), and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, only in its capacity
as paying agent, certificate registrar and authenticating agent herein (the
"Paying Agent").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage
Loans from Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMC"), Xxxxx Fargo
Bank, National Association, as seller (in such capacity, "Xxxxx Fargo"), and
will be the owner of the Mortgage Loans and the other property being conveyed by
it to the Trustee for inclusion in the Trust which is hereby created. On the
Closing Date, the Depositor will acquire (i) the REMIC I Regular Interests and
the Class R-I Certificate as consideration for its transfer to the Trust of the
Mortgage Loans and the other property constituting the Trust; (ii) the REMIC II
Regular Interests and the Class R-II Certificates as consideration for its
transfer of the REMIC I Interests to the Trust; and (iii) the REMIC III
Certificates as consideration for its transfer of the REMIC II Regular Interests
to the Trust. The Depositor has duly authorized the execution and delivery of
this Agreement to provide for the foregoing and the issuance of (A) the REMIC I
Regular Interests and the Class R-I Certificates representing in the aggregate
the entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests
and the Class R-II Certificates representing in the aggregate the entire
beneficial ownership of REMIC II and (C) the REMIC III Certificates representing
in the aggregate the entire beneficial ownership of REMIC III. All covenants and
agreements made by the Depositor and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust are for the benefit
of the Holders of the REMIC I Regular Interests, the REMIC II Regular Interests,
the Residual Certificates, and the REMIC Regular Certificates. The parties
hereto are entering into this Agreement, and the Trustee is accepting the trusts
created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
The Class X-0, Xxxxx X-0, Class B, Class C, Class D, Class E
and Class F Certificates have been offered for sale pursuant to the prospectus
(the "Prospectus") dated October 9, 1998, as supplemented by the preliminary
prospectus supplement dated February 3, 1999 (together with the Prospectus, the
"Preliminary Prospectus Supplement") and as further supplemented by the final
prospectus supplement dated February 10, 1999 (together with the Prospectus, the
"Final Prospectus Supplement") and the Class X, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class R-I, Class R-II and the Class R-III
Certificates have been offered for sale pursuant to the Private Placement
Memorandum dated February 10, 1999 (the "Private Placement Memorandum").
The following sets forth the Class designation, Pass-Through
Rate, initial Aggregate Certificate Balance (or initial Notional Amount) and
Final Scheduled Distribution
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Date for each Class of REMIC I Regular Interests and the Class R-I Certificates
comprising the interests in REMIC I, each Class of REMIC II Regular Interests
and the Class R-II Certificate comprising the interests in REMIC II and each
Class of REMIC III Certificates comprising the interests in REMIC III created
hereunder:
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I
Regular Interest") will relate to a specific Mortgage Loan. Each Corresponding
REMIC I Regular Interest, other than the REMIC I Excess Interest, will have a
pass-through rate equal to the REMIC I Net Mortgage Rate of the related Mortgage
Loan, an initial principal amount (the initial "Certificate Balance") equal to
the Scheduled Principal Balance as of the Cut-Off Date (as herein defined) of
the Mortgage Loan to which the Corresponding REMIC I Regular Interest relates,
and a latest possible maturity date set to the Maturity Date (as defined herein)
of the Mortgage Loan to which the Corresponding REMIC I Regular Interest
relates. The REMIC I Excess Interest will consist of the aggregate amount of
Excess Interest, if any, on all Mortgage Loans. The Class R-I Certificate will
be designated as the sole class of residual interests in REMIC I and will have
no Certificate Balance and no Pass-Through Rate, but will be entitled to receive
the proceeds of any assets remaining in REMIC I after all classes of REMIC I
Regular Interests have been paid in full.
REMIC II
The REMIC II Regular Interests, other than the REMIC II Excess
Interest, have the pass-through rates and Certificate Balances set forth in the
definition thereof. The Class R-II Certificate will be designated as the sole
class of residual interests in REMIC II and will have no Certificate Balance and
no Pass-Through Rate, but will be entitled to receive the proceeds of any assets
remaining in REMIC II after all classes of REMIC II Regular Interests have been
paid in full. The REMIC II Excess Interest will consist of all amounts paid on
or deemed paid to the REMIC I Excess Interest.
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REMIC III
Initial Aggregate
Initial Certificate
Pass-Through Principal or Final Scheduled Final Rated
Designation Rate(a) Notional Amount Distribution Date(b) Distribution Date(c)
----------- ------- --------------- -------------------- --------------------
Class A-1 5.91% $269,000,000 April 15, 2008 November 15, 2031
Class A-2 6.21% 476,754,000 September 15, 2008 November 15, 2031
Class X 0.50% 968,511,922 October 15, 2018 November 15, 2031
Class B 6.32% 48,425,000 October 15, 2008 November 15, 2031
Class C 6.54% 43,583,000 October 15, 2008 November 15, 2031
Class D 6.34% 9,685,000 October 15, 2008 November 15, 2031
Class E 6.61% 29,056,000 November 15, 2008 November 15, 2031
Class F 6.61% 16,949,000 August 15, 2010 November 15, 2031
Class G 5.91% 9,685,000 November 15, 2011 November 15, 2031
Class H 5.91% 19,370,000 July 15, 2013 November 15, 2031
Class J 5.91% 7,264,000 September 15, 2013 November 15, 2031
Class K 5.91% 8,232,000 November 15, 2013 November 15, 2031
Class L 5.91% 12,107,000 October 15, 2015 November 15, 2031
Class M 5.91% 4,842,000 November 15, 2016 November 15, 2031
Class N 5.91% 4,843,000 November 15, 2017 November 15, 2031
Class O(d) 5.91% 8,716,922 October 15, 2018 November 15, 2031
Class R-III(e) N/A N/A N/A N/A
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is
expected to be paid in full, assuming that timely payments (and no
prepayments) will be made on the Mortgage Loans in accordance with
their terms.
(c) The Final Rated Distribution Date for each Class of Certificates is
November 15, 2031. That date is approximately 36 months following the
end of the amortization term of the Mortgage Loan that, as of the
Closing Date, has the longest remaining amortization term.
(d) The Class O Certificates represent ownership of two REMIC III Regular
Interests: (1) the REMIC III Class O Regular Interest (entitled to the
principal and interest set forth above) and (2) the REMIC III Excess
Interest (entitled to the amounts distributed or deemed distributed on
the REMIC II Excess Interest).
(e) The Class R-III Certificates will be entitled to receive the proceeds
of any remaining assets in REMIC III after the principal amounts of all
Classes of Certificates have been reduced to zero.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $968,511,922.
As provided herein, with respect to the Trust, the Paying
Agent will make an election for the segregated pool of assets described in the
first paragraph of Section 12.1(a) hereof (including the Mortgage Loans) to be
treated for federal income tax purposes as a
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real estate mortgage investment conduit ("REMIC I"). The REMIC I Regular
Interests will be designated as the "regular interests" in REMIC I and the Class
R-I Certificates will be designated as the sole class of "residual interests" in
REMIC I.
As provided herein, with respect to the Trust, the Paying
Agent on behalf of the Trustee will make an election for the segregated pool of
assets described in the second paragraph of Section 12.1(a) hereof consisting of
the REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying
Agent on behalf of the Trustee will make an election for the segregated pool of
assets described in the third paragraph of Section 12.1(a) hereof consisting of
the REMIC II Regular Interests to be treated for federal income tax purposes as
a real estate mortgage investment conduit ("REMIC III"). The Class X-0, Xxxxx
X-0, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, and Class N Certificates and the REMIC III
Class O Regular Interest, together with the REMIC III Excess Interest, will be
designated as the "regular interests" in REMIC III and the Class R-III
Certificates (together with the REMIC Regular Certificates, the "REMIC III
Certificates") will be designated as the sole class of "residual interests" in
REMIC III for purposes of the REMIC Provisions.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"ACCOUNTANT" means a person engaged in the practice of
accounting who is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each
Distribution Date and any Class of Interests or Certificates, other than the
Class X Certificates, the Class R-I Certificates, the Class R-II Certificates,
the Class R-III Certificates, the REMIC I Excess Interest, REMIC II Excess
Interest and REMIC III Excess Interest, interest accrued during the Interest
Accrual Period relating to such Distribution Date on the aggregate Certificate
Balance of such Class or Interest as of the close of business on the immediately
preceding Distribution Date at the respective rates per annum set forth in the
definition of the applicable Pass-Through Rate for each such Class. Accrued
Certificate Interest on the Class X Certificates for each Distribution Date will
equal the Class X Interest Amount.
"ACQUISITION DATE" means the date upon which, under the Code
(and in particular the REMIC Provisions and Section 856(e) of the Code), the
Trust or a REMIC Pool is deemed to have acquired a Mortgaged Property.
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"ADDITIONAL TRUST EXPENSE" means any of the following items:
(i) Special Servicing Fees and Liquidation Fees (to the extent not collected
from the related Mortgagor), (ii) Advance Interest that cannot be reimbursed
from collections on the related Mortgage Loan or REO Property; (iii) amounts
paid to indemnify the Master Servicer, Special Servicer, Trustee, Paying Agent
or Fiscal Agent (or any other Person) pursuant to the terms of this Agreement;
(iv) to the extent not otherwise paid, any federal, state, or local taxes
imposed on the Trust or its assets and paid from amounts on deposit in the
Certificate Account or Distribution Account, (v) the amount of any Advance that
is not recovered from the proceeds of a Mortgage Loan upon a Final Recovery
Determination and (vi) to the extent not included in the calculation of a
Realized Loss and not covered by indemnification by one of the parties hereto or
otherwise, any other unanticipated cost, liability, or expense (or portion
thereof) of the Trust (including costs of collecting such amounts or other
Additional Trust Expenses) which the Trust has not recovered, and in the
judgment of the Master Servicer (or Special Servicer, in the case of a Specially
Serviced Mortgage Loan) will not, recover from the related Mortgagor or
Mortgaged Property or otherwise, including a Modification Loss described in
clause (ii) of the definition thereof. Notwithstanding anything to the contrary,
"Additional Trust Expenses" 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.
"ADMINISTRATIVE COST RATE" means the sum of the Servicing Fee
Rate and the Trustee Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Master
Servicer, the Trustee or the Fiscal Agent on outstanding Advances pursuant to
Section 4.5 of this Agreement.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate
as published in the "Money Rates" section of The Wall Street Journal from time
to time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REPORT DATE" means the Business Day prior to each
Distribution Date.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC as a REMIC or (ii) subject to Section 9.14(e), result in
the imposition of a tax upon the income of any REMIC or any of their respective
assets or transactions, including (without limitation) the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
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"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the
Certificate Balances of the REMIC III Certificates, the REMIC I Interests or the
REMIC II Interests, as the case may be, at any date of determination. With
respect to a Class of Certificates or Interests, Aggregate Certificate Balance
shall mean the aggregate of the Certificate Balances of all Certificates or
Interests, as the case may be, of that Class at any date of determination or by
Percentage Interest, in the case of the Class R-I, Class R-II or Class R-III
Certificates.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any
determination and as the context may require, the aggregate of the Scheduled
Principal Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANNUAL REPORT" means a report substantially in the form of
Exhibit N.
"ANTICIPATED REPAYMENT DATE" means, with respect to any
Hyper-Amortization Loan, the anticipated maturity date set forth in the related
Mortgage Note.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. Section 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan,
not later than the earliest of (i) the date 120 days after the occurrence of any
delinquency in payment with respect to such Mortgage Loan if such delinquency
remains uncured, (ii) the date 30 days after receipt of notice that the related
borrower has filed a bankruptcy petition or a receiver is appointed in respect
of the related Mortgaged Property, provided such petition or appointment is
still in effect, (iii) the effective date of any modification to a Money Term of
a Mortgage Loan, other than an extension of the due date that a Balloon Payment
is due for a period of less than six months, and (iv) the date 30 days following
the date the related Mortgaged Property becomes an REO Property.
"APPRAISAL REDUCTION" means, with respect to any Required
Appraisal Loan with respect to which an Appraisal or internal valuation is
performed pursuant to Section 6.8, an amount equal to the excess of (A) the sum,
as of the first Determination Date that is at least 15 days after the date on
which the Appraisal or internal valuation is obtained or performed, of (i) the
Scheduled Principal Balance of such Mortgage Loan (or, in the case of an REO
Property, the related REO Mortgage Loan), (ii) to the extent not previously
advanced, all unpaid interest on such Mortgage Loan at a per annum rate equal to
the Mortgage Rate, (iii) all unreimbursed Advances and interest on Advances at
the Advance Rate with respect to such Mortgage Loan, and (iv) to the extent
funds on deposit in any applicable Escrow Accounts are not sufficient therefor,
all currently due and unpaid real estate taxes and assessments, insurance
premiums and, if applicable, ground rents in respect of such Mortgaged Property
or REO Property, as the case may be, over (B) 90% of the Appraised Value (net of
any prior mortgage liens) of such
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Mortgaged Property or REO Property as determined by such Appraisal or internal
valuation, as the case may be. Each Appraisal or internal valuation for a
Required Appraisal Loan shall be updated annually. The Appraisal Reduction for
each Required Appraisal Loan will be recalculated based on subsequent
Appraisals, internal valuations or updates. Any Appraisal Reduction for any
Mortgage Loan shall be reduced to reflect any Realized Principal Losses on the
Required Appraisal Loan. Each Appraisal Reduction will be reduced to zero as of
the date the related Mortgage Loan is brought current under the then current
terms of the Mortgage Loan for at least three consecutive months, and no
Appraisal Reduction will exist as to any Mortgage Loan after it has been paid in
full, liquidated, repurchased or otherwise disposed of, or in certain cases will
be reduced by the amount of any Realized Loss of principal on the related
Mortgage Loan incurred prior to the liquidation or disposition thereof.
Notwithstanding the foregoing, if an internal valuation of the Mortgaged
Property is performed, the Appraisal Reduction will equal the greater of (A) the
amount calculated above and (B) 25% of the Principal Balance of the Mortgage
Loan.
"APPRAISED VALUE" means, with respect to any Mortgaged
Property, the appraised value thereof determined by an Appraisal of the
Mortgaged Property securing such Mortgage Loan made by an Independent appraiser
selected by the Master Servicer or the Special Servicer, as applicable or, in
the case of an internal valuation performed pursuant to Section 6.8, the value
of the Mortgaged Property determined by such internal valuation.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage
Loan, any assignment of leases, rents and profits or equivalent instrument,
whether contained in the related Mortgage or executed separately, assigning to
the holder or holders of such Mortgage all of the related Mortgagor's interest
in the leases, rents and profits derived from the ownership, operation, leasing
or disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage,
notice of transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect the transfer of the Mortgage to the Trustee, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering the Mortgage Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any
Balloon Mortgage Loan for its Maturity Date (provided that such Mortgage Loan
has not been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect thereof, on or before the end of the
Collection Period in which such Maturity Date occurs) and for any subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment that would have been due in respect of such Mortgage Loan on
such Due Date, if it had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule in effect immediately prior to, and without regard to the
occurrence of, its most recent Maturity Date (as such may have been extended in
connection with a bankruptcy or
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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
the Special Servicer pursuant to the terms hereof), and (ii) with respect to any
REO Mortgage Loan for any Due Date therefor as of which the related REO Property
remains part of the Trust, the scheduled monthly payment of principal and
interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment (or, in the case of a Balloon Mortgage Loan described in the
preceding clause of this definition, the Assumed Scheduled Payment) that was due
in respect of the related Mortgage Loan on the last Due Date prior to its
becoming an REO Mortgage Loan.
"AUTHENTICATING AGENT" means any authenticating agent serving
in such capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an
Officer's Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" shall have the
meaning set forth in Section 4.6(a) hereof.
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Distribution Account as of the commencement of business on such
Distribution Date that represent payments and other collections on or in respect
of the Mortgage Loans and any REO Properties that were received by the Master
Servicer or the Special Servicer through the end of the related Collection
Period exclusive of (i) any such amounts that were deposited in the Distribution
Account in error, (ii) amounts that are payable or reimbursable to any Person
other than the Certificateholders (including amounts payable to the Master
Servicer in respect of unpaid Servicing Fees, the Special Servicer in respect of
unpaid Special Servicer Compensation, the Trustee in respect of unpaid Trustee
Fees or the Paying Agent in respect of unpaid Paying Agent Fees), (iii) amounts
that constitute Prepayment Premiums, and (iv) if such Distribution Date occurs
during January or February of any year, the Interest Reserve Amounts with
respect to Interest Reserve Loans deposited in the Interest Reserve Account, and
(b) if and to the extent not already among the amounts described in clause (a),
(i) the aggregate amount of any P&I Advances made by the Master Servicer, the
Trustee or the Fiscal Agent for such Distribution Date pursuant to Section 4.1
and/or Section 4.3, (ii) the aggregate amount of any Compensating Interest
payments made by the Master Servicer or the Special Servicer for such
Distribution Date pursuant to the terms hereof, and (iii) if such Distribution
Date occurs in March of any year, commencing March 2000, the aggregate of the
Interest Reserve Amounts then held on deposit in the Interest Reserve Account in
respect of each Interest Reserve Loan.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan which will not
be fully amortized by its original or modified Maturity Date, based on the fixed
monthly Scheduled Payment.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage
Loan, the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
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"BANKRUPTCY LOSS" means a loss arising from a proceeding under
the United States Bankruptcy Code or any other similar state law or other
proceeding with respect to the Mortgagor of, or Mortgaged Property under, a
Mortgage Loan, including, without limitation, any Deficient Valuation Amount or
losses, if any, resulting from any Debt Service Reduction Amount for the month
in which the related Remittance Date occurs.
"BENEFIT PLAN OPINION" means an Opinion of Counsel
satisfactory to the Trustee and the Master Servicer to the effect that any
proposed transfer will not (i) cause the assets of any REMIC to be regarded as
plan assets for purposes of the Plan Asset Regulations or (ii) give rise to any
fiduciary duty on the part of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Fiscal Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a
beneficial interest in a Class of Certificates, ownership and transfer of which
shall be made through book entries as described in Section 3.7; provided, that
after the occurrence of a condition whereupon book-entry registration and
transfer are no longer authorized and Definitive Certificates are to be issued
to the Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BUSINESS DAY" means any day other than (i) a Saturday or a
Sunday, (ii) a legal holiday in New York, New York, Boston, Massachusetts,
Chicago, Illinois, San Francisco, California or the principal cities in which
the Special Servicer, the Trustee, the Paying Agent, or the Master Servicer
conducts servicing or trust operations, or (iii) a day on which banking
institutions or savings associations in New York, New York, Minneapolis,
Minnesota, Columbia, Maryland, Chicago, Illinois or San Francisco, California
are authorized or obligated by law or executive order to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan
other than a Mortgage Loan with respect to which the related Mortgaged Property
became REO Property, the amount of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, Purchase Proceeds and other payments or
recoveries with respect to a Final Recovery Determination. The Master Servicer
shall maintain records in accordance with the Servicing Standard (and, in the
case of Specially Serviced Mortgage Loans, based on the written reports with
respect to such Cash Liquidation delivered by the Special Servicer to the Master
Servicer), of each Cash Liquidation.
"CEDEL" means Cedelbank, societe anonyme.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts
established and maintained by the Master Servicer (or any Sub-Servicer on behalf
of the Master Servicer) pursuant to Section 5.1(a), which each account shall be
an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate
or Interest (other than the Class X Certificates, the Residual Certificates, the
REMIC I Excess Interest and REMIC II Excess Interest) as of any Distribution
Date, the maximum specified dollar amount of principal to which the Holder
thereof is then entitled hereunder, such amount being equal to the initial
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principal amount set forth on the face of such Certificate (in the case of a
Certificate), or as ascribed thereto in the Preliminary Statement (in the case
of an Interest), minus (i) the amount of all principal distributions previously
made with respect to such Certificate pursuant to Section 6.4(a) or deemed to
have been made with respect to such Interest pursuant to Section 6.2(a) or
Section 6.3(a), as the case may be, (ii) all Realized Losses allocated or deemed
to have been allocated to such Interest or Certificate pursuant to Section 6.5,
and (iii) Expense Losses allocated to such Interest or Certificate pursuant to
Section 6.5. The REMIC I Excess Interest and REMIC II Excess Interest have no
Certificate Balance.
"CERTIFICATE OWNER" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as may be reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing Agency (directly or
as an indirect participant, in accordance with the rules of such Clearing
Agency).
"CERTIFICATE REGISTER" has the meaning provided in Section
3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant
to Section 3.2 and initially shall be the Paying Agent.
"CERTIFICATEHOLDERS" has the meaning provided in the
definition of "Holder."
"CERTIFICATES" means, collectively, the REMIC III
Certificates, the Class R-I Certificates and the Class R-II Certificates.
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests or REMIC III Certificates, any Class of such Certificates or
Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS X
CERTIFICATES," "CLASS B CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D
CERTIFICATES," "CLASS E CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G
CERTIFICATES," "CLASS H CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K
CERTIFICATES," "CLASS L CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N
CERTIFICATES," "CLASS O CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II
CERTIFICATES" or "CLASS R-III CERTIFICATES," mean the Certificates designated as
"Class A-1," "Class A-2," "Class X," "Class B," "Class C," "Class D," "Class E,"
"Class F," "Class G," "Class H," "Class J," "Class K," "Class L," "Class M,"
"Class N," "Class O," "Class R-I," "Class R-II" and "Class R-III," respectively,
on the face thereof, in substantially the form attached hereto as Exhibits A-1
through A-19 hereof.
"CLASS A CERTIFICATES" means the Class A-1 Certificates and
Class A-2 Certificates, collectively.
"CLASS X CERTIFICATES" means the Class X Certificates.
"CLASS X INTEREST AMOUNT" means, with respect to any
Distribution Date and the related Interest Accrual Period, interest equal to the
product of (i) one-twelfth of a per annum rate equal to the weighted average of
the Class X Strip Rates for the Class A-1 Certificates, Class A-2 Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
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Certificates, Class F Certificates, Class G Certificates, Class H Certificates,
Class J Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates and Class O Certificates, weighted on the
basis of the respective Certificate Balances of such Classes of Certificates,
and (ii) the Class X Notional Amount for such Distribution Date.
"CLASS X NOTIONAL AMOUNT" means, with respect to any
Distribution Date, the aggregate of the Certificate Balances of the REMIC
Regular Certificates as of the close of business on the related Distribution
Date.
"CLASS X STRIP RATE" means, for any Distribution Date, with
respect to any Class of Certificates (other than the Class X Certificates and
the Residual Certificates), the excess, if any, of the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date over (i) the Pass-Through Rate for
such Class of Certificates.
"CLEARING AGENCY" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the 1934 Act, which initially shall
be the Depository.
"CLOSING DATE" means February 25, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended,
any successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution
Date, the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"COMPENSATING INTEREST" means with respect to any Distribution
Date, an amount equal to the excess of (A) Prepayment Interest Shortfalls
resulting from Principal Prepayments during the related Collection Period over
(B) Prepayment Interest Excesses resulting from Principal Prepayments during the
same Collection Period, but in any event (i) with respect to Compensating
Interest to be paid by the Master Servicer hereunder, not more than the portion
of the aggregate Servicing Fee for the related Collection Period calculated in
respect of all the Mortgage Loans (including REO Mortgage Loans) less the
portion payable to Sub-Servicers as Sub-Servicing Fees and (ii) with respect to
Compensating Interest to be paid by the Special Servicer hereunder, not more
than the portion of the aggregate Special Servicing Fee for the related
Collection Period calculated in respect of all the Specially Serviced Mortgage
Loans, including REO Mortgage Loans.
"CONDEMNATION PROCEEDS" means any awards resulting from the
full or partial condemnation or any eminent domain proceeding or any conveyance
in lieu or in anticipation thereof with respect to a Mortgaged Property by or to
any governmental, quasi-governmental authority or private entity with
condemnation powers other than amounts to be applied to the restoration,
preservation or repair of such Mortgaged Property or released to the related
Mortgagor in accordance with the terms of the Mortgage Loan.
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"CONTROLLING CLASS" means the most subordinate Class of
Certificates outstanding at any time of determination; provided, that, no Class
may be the Controlling Class at any time that (i) with respect to Class K, Class
L, Class M, Class N, and Class O Certificates the then Certificate Balance of
such Class is less than 25% of the initial Certificate Balance of such Class and
(ii) with respect to all other Classes of Certificates, the then Certificate
Balance of such Class is less than 35% of the initial Certificate Balance of
such Class. As of the Closing Date, the Controlling Class will be the Class O
Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any
other Person who "controls" such Person within the meaning of the 1933 Act.
"CORPORATE TRUST OFFICE" means, with respect to the
presentment and surrender of Certificates for the final distribution thereon or
the presentment and surrender of Certificates for any other purpose, the office
of the Certificate Registrar and, with respect to other purposes, the principal
corporate trust office of the Trustee. The principal corporate trust office of
the Trustee is presently located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities Trust Services
Group, Xxxxxx Xxxxxxx Series 1999-WF1 and the office of the Certificate
Registrar is presently located at Norwest Center, 6th and Marquette,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS) --
Xxxxxx Xxxxxxx Series 1999-WF1, or at such other address as the Trustee or the
Certificate Registrar, as the case may be, may designate from time to time by
notice to the Certificateholders, the Depositor, the Master Servicer, the Paying
Agent and the Special Servicer.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to
each Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance equal to the principal balance of such Mortgage Loan outstanding as of
the Cut-Off Date, after taking into account all principal and interest payments
made or due prior to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means with respect
to each Class of Certificates, the REMIC II Regular Interest having the same
letter designation.
"CURRENTLY PAYING CLASS" means any one of the Class of
Interests which is currently receiving distributions of principal pursuant to
Section 6.2 hereof.
"CUSTODIAN" means the Trustee or any Person who is appointed
by the Trustee at any time as custodian pursuant to Section 7.9 and who is
unaffiliated with the Depositor and each Seller and satisfies the eligibility
requirements of the Trustee as set forth in Section 7.5.
"CUSTOMER" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"CUT-OFF DATE" means the end of business on February 1, 1999.
"CUT-OFF DATE AGGREGATE PRINCIPAL BALANCE" means, with respect
to the Mortgage Loans on the Closing Date, the Aggregate Principal Balance for
all such Mortgage Loans as of the Cut-Off Date, reduced by all payments of
principal due on or before the Cut-Off
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Date whether or not paid, and increased by Scheduled Payments of principal due
after the Cut-Off Date but received by the Master Servicer on or before the
Cut-Off Date.
"DCR" means Duff & Xxxxxx Credit Rating Co. or its successor
in interest.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any
Mortgage Loan, as of any date of determination and for any period, the amount
calculated for such date of determination in accordance with the procedures set
forth in Exhibit T.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due
Date and the related Determination Date, the amount of the reduction of the
Scheduled Payment which a Mortgagor is obligated to pay on such Due Date with
respect to a Mortgage Loan as a result of any proceeding under bankruptcy law or
any similar proceeding (other than a Deficient Valuation Amount); provided,
however, that in the case of an amount that is deferred, but not forgiven, such
reduction shall include only the net present value (calculated at the related
Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan which is in
default under the terms of the applicable Mortgage Loan documentation and for
which any applicable grace period has expired.
"DEFEASANCE COLLATERAL": With respect to any Defeasance Loan,
the United States Treasury obligations required or permitted to be pledged in
lieu of prepayment pursuant to the terms thereof.
"DEFEASANCE LOAN": Any Mortgage Loan which requires the
related Mortgagor (or permits the holder of such Mortgage Loan to require the
related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"DEFICIENT VALUATION" means, with respect to any Mortgage
Loan, a valuation by a court of competent jurisdiction of the Mortgaged Property
relating to a Mortgage Loan in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
initiated under the United States Bankruptcy Code, as amended from time to time,
and that reduces the amount the Mortgagor is required to pay under such Mortgage
Loan.
"DEFICIENT VALUATION AMOUNT" means the amount by which the
total amount due with respect to a Mortgage Loan (excluding interest not yet
accrued), including the principal balance of a Mortgage Loan plus any accrued
and unpaid interest thereon and any other amounts recoverable from the Mortgagor
with respect thereto pursuant to the terms thereof, is reduced in connection
with a Deficient Valuation.
"DEFINITIVE CERTIFICATES" means Certificates of any Class
issued in definitive, fully registered, certificated form without interest
coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is
repurchased from the Trust pursuant to the terms hereof or as to which one or
more Qualifying Substitute Mortgage Loans are substituted.
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"DEPOSITOR" means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations by
and among the Depositor, the Trustee and the Depository.
"DETERMINATION DATE" means, with respect to any Distribution
Date, the earlier of (i) the 10th day of the month in which such Distribution
Date occurs or, if such day is not a Business Day, the next preceding Business
Day, and (ii) the 4th Business Day prior to the related Distribution Date,
commencing March 9, 1999.
"DIRECTLY OPERATE" means, 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 (other than a sale of an REO Property pursuant to and in
accordance with Section 9.15 or Section 9.36), the performance of any
construction work thereon or any use of such REO Property in a trade or business
conducted by the Trust, in each case other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs, tenant
improvements or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
connection with leasing activity) or undertakes any ministerial action
incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded monthly,
is equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate" is the yield calculated by the linear interpolation of the yields, as
reported in Federal Reserve Statistical Release H.15 -- Selected Interest Rates
under the heading "U.S. government securities/Treasury constant maturities" for
the week ending prior to the date of the relevant principal prepayment, of U.S.
Treasury constant maturities with a maturity date (one longer and one shorter)
most nearly approximating the maturity date of the Mortgage Loan prepaid. If
Release H.15 is no longer published, the Master Servicer will select a
comparable publication to determine the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United
States, any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for FHLMC,
a majority of its board of directors is not selected by any such governmental
unit), (ii) a foreign government, international organization or any agency or
instrumentality of either of the foregoing, (iii) an organization (except
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from 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, and (v) any other Person so designated by the Master
Servicer based upon an Opinion of Counsel that the
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holding of an ownership interest in a Residual Certificate by such Person may
cause either of the REMICs, 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" means, with respect to
any Distribution Date and any Class of Certificates (other than the Residual
Certificates) or Interests, the sum of (A) Accrued Certificate Interest, reduced
by (i) any Net Aggregate Prepayment Interest Shortfalls not offset by
Compensating Interest, allocated on such Distribution Date to such Class or
Interest pursuant to Section 6.6, and (ii) Realized Losses and Expense Losses
allocated on such Distribution Date to reduce the interest payable to such Class
or Interest pursuant to Section 6.5, plus (B) the Unpaid Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account
maintained by the Paying Agent, in accordance with the provisions of Section
5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 15th day of each month or, if
such day is not a Business Day, the next succeeding Business Day, commencing
March 15, 1999.
"DOCUMENT DEFECT" has the meaning set forth in Section 2.3(a).
"DUE DATE" means, with respect to a Mortgage Loan, the date on
which a Scheduled Payment is due.
"ELIGIBLE ACCOUNT" means (i) an account or accounts maintained
with a depository institution or trust company the long-term unsecured debt
obligations of which are rated at least "Aa3" or better by Moody's, or if not
rated by Moody's then otherwise approved by Moody's, and "A" by DCR if rated by
DCR or if not rated by DCR, then otherwise approved by DCR; or (ii) an account
or accounts in which funds will be held therein for 30 days or less which are
maintained with a depository institution or trust company, the short-term
unsecured debt obligations of which are rated "P-1" or better by Moody's, or if
not rated by Moody's then otherwise approved by Moody's, and "D-1" or better by
DCR if rated by DCR, or if not rated by DCR then otherwise approved by DCR, in
each case at the time of any deposit therein; or (iii) a segregated trust
account or accounts maintained with the corporate trust department of a
federally or state chartered depository institution or trust company acting in
its fiduciary capacity, which may be the Master Servicer (or any Affiliate of
the Master Servicer), the Paying Agent, the Fiscal Agent or Trustee, provided
any such institution is subject to regulations regarding fiduciary funds on
deposit substantially similar to 12 C.F.R. Section 9.10(b) and the maintenance
of such account in such institution will not result in the qualification,
downgrading or withdrawal of the rating then assigned to any Class of
Certificates as evidenced in writing by each Rating Agency; or (iv) any account
which is fully insured by the United States Government, the Federal Deposit
Insurance Corporation ("FDIC") or any other agency or instrumentality of the
United States; or (v) any account, the establishment and maintenance of which is
the subject of a Rating Agency Confirmation; or (vi) an account or accounts
maintained with Xxxxx Fargo
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Bank, National Association (or Xxxxx Fargo & Company), provided that the
long-term unsecured obligations of Xxxxx Fargo Bank, National Association (or
Xxxxx Fargo & Company) are rated "A" or better by DCR and "A1" or better by
Moody's. Eligible Accounts may bear interest.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property.
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the United States
of America, FNMA, FHLMC or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit of the
United States of America; provided that any obligation of, or guarantee by, FNMA
or FHLMC, other than an unsecured senior debt obligation of FNMA or FHLMC, shall
be an Eligible Investment only if Rating Agency Confirmation is obtained with
respect to such investment;
(ii) demand and time deposits in, certificates of
deposit of, or bankers' acceptances issued by, any depository institution or
trust company (including the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, the Paying Agent or any Affiliate of the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent or the Paying Agent acting in
its commercial capacity) incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the commercial
paper or other short-term debt obligations of such depository institution or
trust company are rated "D-1+" or better by DCR, if rated by DCR, or otherwise
approved by DCR if not rated by DCR, and "P-1" or better by Moody's, or if not
rated by Moody's then otherwise approved by Moody's, or are the subject of a
Rating Agency Confirmation, or demand and time deposits of Xxxxx Fargo Bank,
National Association (or Xxxxx Fargo & Company), provided that the long-term
unsecured obligations of Xxxxx Fargo Bank, National Association (or Xxxxx Fargo
& Company) are rated "A" or better by DCR and "A1" or better by Moody's;
(iii) repurchase agreements or obligations with
respect to any security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase obligation has
been entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next Distribution Date upon
which, as described in the Agreement, such amounts are required to be withdrawn
from the related account and which meets the minimum rating requirement for such
entity described above;
(iv) securities (other than stripped bonds or
stripped coupons) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or any
state thereof, which securities have ratings from Moody's and DCR that are at
least equal to the highest long-term credit ratings assigned by Moody's and DCR,
respectively, unless otherwise specified in writing by the Rating Agency;
provided that securities issued by any particular corporation will not be
Eligible Investments to the extent that investment therein will cause the then
outstanding principal amount of securities issued by such corporation
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and held in the Certificate Account to exceed 10% of the sum of the Aggregate
Principal Balance and the aggregate principal amount of all Eligible Investments
in the Certificate Account;
(v) commercial paper (including both
noninterest-bearing discount obligations and interest-bearing obligations
payable on demand or on a specified date not more than one year after the date
of issuance thereof) rated "P-1" by Moody's (if rated by Moody's) and "D-1+" by
DCR (if rated by DCR and if not by DCR, then otherwise approved by), or with
respect to which Rating Agency Confirmation has been obtained;
(vi) units of investment funds (including money
market funds) rated in the highest long-term category by Moody's, or if not
rated by Moody's then otherwise approved by Moody's, and the highest long-term
category by DCR or if not rated by DCR then otherwise approved by DCR;
(vii) guaranteed reinvestment agreements maturing 365
days or less issued by any bank, insurance company or other corporation rated in
the highest long term unsecured rating, but in any event, not less than "Aaa" by
Moody's (if rated by Moody's) and by DCR (if rated by DCR);
(viii) any money market fund rated "Aaa" by Moody's
or if not rated by Moody's, then otherwise approved by Moody's, and "AAA" by DCR
or if not rated by DCR, then otherwise approved by DCR, and any other demand,
money-market or time deposit, or any other obligation, security or investment,
that may be acceptable to the Rating Agencies as a permitted investment of funds
which will not result in a qualification, downgrading or withdrawal of the
rating of any Class of Certificates; and
(ix) such other investments bearing interest or sold
at a discount, or earning a return "in the nature of interest" within the
meaning of Treasury Regulation Section 1.860G-2(g)(1) (as evidenced by an
Opinion of Counsel delivered to the Trustee by the Master Servicer at the Master
Servicer's expense) that are the subject of a Rating Agency Confirmation and
otherwise treated as "permitted investments" under Code Section 860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(1) of the Treasury Regulations and (B) that no such instrument shall
be an Eligible Investment if such instrument evidences either (X) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (Y) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (Z) if it may be redeemed at a price below the
purchase price (the foregoing clause (B) shall not apply to investments in units
of money market funds pursuant to clause (vi) or clause (viii) above); and
provided, further, that interest on any variable rate instrument shall be tied
to a single interest rate index plus a single fixed spread (if any) and move
proportionally with that index; and provided, further, that no amount
beneficially owned by any REMIC (including any amounts collected by the Master
Servicer but not yet deposited in the Certificate Account) may be invested in
investments treated as equity interests for Federal income tax purposes, unless
the Master Servicer and the Trustee shall receive an Opinion of Counsel to the
effect that such
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investment will not adversely affect the status of any such REMIC as a REMIC
under the Code or result in imposition of a tax on any such REMIC. Each Eligible
Investment shall have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change and shall not be subject to liquidation
prior to maturity. No Eligible Investments shall be purchased at a price in
excess of par or have maturities in excess of one year. For the purpose of this
definition, units of investment funds (including money market funds) shall be
deemed to mature daily.
"ENVIRONMENTAL LAWS" means any and all federal, state and
local statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ESCROW ACCOUNT" means an account established by the Master
Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a
Mortgage Loan for taxes, assessments, water rates, Standard Hazard Insurance
Policy premiums, ground lease payments, reserves for capital improvements,
deferred maintenance, tenant improvements, leasing commissions, environmental
matters and other reserves or comparable items.
"EVENT OF DEFAULT" has the meaning set forth in Section
8.28(b).
"EXCESS INTEREST" means, with respect to any
Hyper-Amortization Loan that does not pay on its Anticipated Repayment Date, the
excess, if any of interest accrued at the rate of interest applicable to such
Mortgage Loan after such Anticipated Repayment over interest accrued at the rate
of interest applicable to such Mortgage Loan before such Anticipated Repayment
Date.
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any
Mortgage Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or
related REO Property, over (ii) the amount that would have been received if a
Principal Prepayment in full had been made with respect to such Mortgage Loan on
the date such proceeds were received.
"EXCHANGE CERTIFICATION" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A-IAI Global
Certificate, as applicable.
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"EXPENSE LOSS" means a loss realized upon payment by the Trust
of an Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or
any successor thereto.
"FHLMC AUDIT PROGRAM" shall have the meaning set forth in
Section 8.13.
"FINAL CERTIFICATION" has the meaning set forth in Section
2.2.
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
preliminary statement hereto.
"FINAL RATED DISTRIBUTION DATE" means with respect to each
rated Class of Certificates, the date shown on the chart in the Preliminary
Statement.
"FINAL RECOVERY DETERMINATION" means a determination with
respect to any Mortgage Loan or Specially Serviced Mortgage Loan by the Master
Servicer in consultation with the Special Servicer in respect of any Defaulted
Mortgage Loan (including a Mortgage Loan that became an REO Property), in each
case, in its good faith discretion, consistent with the Servicing Standard that
all Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, Purchase
Proceeds and other payments or recoveries which the Master Servicer or the
Special Servicer, as the case may be, expects to be finally recoverable on such
Mortgage Loan, without regard to any obligation of the Master Servicer, the
Trustee or the Fiscal Agent, as the case may be, to make payments from its own
funds pursuant to Article IV hereof, have been recovered. The Special Servicer
shall be required to provide the Master Servicer with prompt written notice of
any Final Recovery Determination with respect to any Specially Serviced Mortgage
Loan upon making such determination. The Master Servicer shall notify the
Trustee and the Paying Agent of such determination and the Paying Agent shall
deliver a copy of such notice to each Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of
rated Certificates, the Distribution Date on which such Class will be paid in
full assuming that timely payments will be made on the Mortgage Loans in
accordance with their terms.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking association
organized under the laws of the Netherlands and its permitted successors and
assigns.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in
Section 4.7 hereof.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
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"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global
Certificate, Regulation S Temporary Global Certificate or Regulation S Permanent
Global Certificate.
"HOLDER" means the Person in whose name a Certificate is
registered on the Certificate Register.
"HYPER-AMORTIZATION LOAN" means, the Mortgage Loans identified
on the Mortgage Loan Schedule as hyper-amortization loans.
"INDEPENDENT" means, when used with respect to any
Accountants, a Person who is "independent" within the meaning of Rule 2-01(B) of
the Securities and Exchange Commission's Regulation S-X. Independent means, when
used with respect to any other Person, a Person who (A) is in fact independent
of another specified Person and any Affiliate of such other Person, (B) does not
have any material direct or indirect financial interest in such other Person or
any Affiliate of such other Person, (C) is not connected with such other Person
or any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the Master Servicer (other than the Master Servicer, but which may
be an Affiliate of the Master Servicer) or, (B) that is a Specially Serviced
Mortgage Loan, any Person designated by the Special Servicer that would be an
"independent contractor" with respect to the applicable REMIC Pool within the
meaning of Section 856(d)(3) of the Code if such REMIC Pool were a real estate
investment trust (except that the ownership test set forth in such Section shall
be considered to be met by any Person that owns, directly or indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as the case may
be, of any Class of the Certificates (other than the Class R-III Certificates),
a Percentage Interest of 35% or more in the Class R-III Certificates or such
other interest in any Class of the Certificates or of the applicable REMIC Pool
as is set forth in an Opinion of Counsel, which shall be at no expense to the
Trustee or the Trust) so long as such REMIC Pool does not receive or derive any
income from such Person and provided that the relationship between such Person
and such REMIC Pool is at arm's length all within the meaning of Treasury
Regulation Section 1.856 - 4(b)(5) or (ii) any other Person (including the
Master Servicer or the Special Servicer) upon receipt by the Trustee of an
Opinion of Counsel, which shall be at the expense of the Person delivering such
opinion to the Trustee, to the effect that the taking of any action in respect
of any REO Property by such Person, subject to any conditions therein specified,
that is otherwise herein contemplated to be taken by an Independent Contractor
will not cause such REO Property to cease to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code), or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
"INDIRECT PARTICIPANTS" means entities, such as banks,
brokers, dealers and trust companies, that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly.
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"INITIAL CERTIFICATION" has the meaning set forth in Section
2.2.
"INITIAL DEPOSIT" means the amount of all collections made on
the Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"INSPECTION REPORT" means the report delivered by the Master
Servicer or the Special Servicer, as the case may be, substantially in the form
of Exhibit L hereto.
"INSTITUTIONAL ACCREDITED INVESTOR" shall mean an
institutional accredited investor qualifying pursuant to Rule 501(a)(1), (2),
(3) or (7) of Regulation D of the 1933 Act.
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy or title insurance policy relating to
the Mortgage Loans or the Mortgaged Properties in effect as of the Closing Date
or thereafter during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under
any Insurance Policy, other than amounts required to be paid over to the
Mortgagor pursuant to law, the related Mortgage Loan or the Servicing Standard.
"INTEREST" means a REMIC I Interest or a REMIC II Interest, as
applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date,
with respect to all Classes of Certificates and Interests (other than the
Residual Certificates), the period beginning on the first day of the month
preceding the month in which such Distribution Date occurs and ending on the
last day of the month preceding the month in which such Distribution Date
occurs.
"INTEREST RESERVE ACCOUNT" means, that Interest Reserve
Account maintained by the Master Servicer pursuant to Section 5.1(a) which
account shall be an Eligible Account.
"INTEREST RESERVE AMOUNT" shall having the meaning set forth
in Section 5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which
bear interest on an actual/360 day basis.
"INTERESTED PERSON" means, as of any date of determination,
the Master Servicer, the Special Servicer, the Depositor, with respect to any
Mortgage Loan, the holder of any related Junior Indebtedness, a holder of 50% or
more of the Controlling Class, the Operating Adviser, any Independent Contractor
engaged by the Master Servicer or the Special Servicer pursuant to this
Agreement, or any Person actually known to a Responsible Officer of the Trustee
to be an Affiliate of any of them.
"INVESTOR" means any purchaser of a Certificate.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor
that is secured by a lien that is junior in right of payment to the lien of the
Mortgage securing the related Mortgage Note.
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"LATE COLLECTIONS" means, with respect to any Mortgage Loan,
all amounts received during any Collection Period, whether as late payments or
as Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds or otherwise, that represent payments or collections of Scheduled
Payments due but delinquent for a previous Collection Period and not previously
recovered.
"LATE FEES" shall mean a fee payable to the Master Servicer or
the Special Servicer, as the case may be, to the extent actually collected from
the Mortgagor as provided in the related Mortgage Loan in connection with a late
payment made by such Mortgagor.
"LEGENDED DEFINITIVE CERTIFICATE" means a Definitive
Certificate bearing the Securities Legend.
"LIQUIDATION EXPENSES" means reasonable and direct expenses
incurred by the Special Servicer on behalf of the Trust in connection with the
enforcement and liquidation of any Specially Serviced Mortgage Loan or REO
Property acquired in respect thereof including, without limitation, reasonable
legal fees and expenses, committee or referee fees, property manager fees, and,
if applicable, brokerage commissions and conveyance taxes for such Specially
Serviced Mortgage Loan. All Liquidation Expenses relating to enforcement and
disposition of the Specially Serviced Mortgage Loan shall be paid (i) out of
income from the related REO Property, to the extent available or (ii) advanced
by the Master Servicer, subject to Section 4.4 hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0%
and (y) the Liquidation Proceeds received in connection with a final disposition
of a Specially Serviced Mortgage Loan or REO Property.
"LIQUIDATION PROCEEDS" means proceeds from the sale or
liquidation of a Mortgage Loan or related REO Property, net of Liquidation
Expenses and any related Advances and interest thereon.
"LIQUIDATION REALIZED LOSS" means, with respect to each
Mortgage Loan or REO Property, as the case may be, as to which a Cash
Liquidation or REO Disposition has occurred, an amount equal to the sum, without
duplication, of (A) the Principal Balance of the Mortgage Loan (or deemed
Principal Balance, in the case of an REO Mortgage Loan) as of the date of the
Cash Liquidation or REO Disposition, plus (B) unpaid interest and interest
accrued thereon at the applicable Mortgage Rate, plus (C) any expenses incurred
in connection with such Mortgage Loan that are reimbursable to any Person, other
than amounts previously treated as Expense Losses or included in the definition
of Liquidation Expenses minus the sum of (i) REO Income applied as recoveries of
principal or interest on the related Mortgage Loan or REO Property, and (ii)
Liquidation Proceeds received during the Collection Period in which such Cash
Liquidation or REO Disposition occurred. REO Income and Liquidation Proceeds
shall be applied first against any Expense Losses (to the extent not included in
the definition of Liquidation Expenses) for such Mortgage Loan, the unpaid
interest on the Mortgage Loan, calculated as described in clause (B) above, and
then against the principal balance of such Mortgage Loan, calculated as
described in clause (A) above.
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"LOAN-TO-VALUE RATIO" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a percentage, the numerator of which
is the principal balance of such Mortgage Loan at the date of determination and
the denominator of which is the value of the Mortgaged Property as shown on the
most recent Appraisal or valuation of the Mortgaged Property which is available
as of such date.
"LOCK-BOX ACCOUNT" shall have the meaning set forth in Section
8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan,
any lock-box agreement relating to such Mortgage Loan among the related
Mortgagor, a depositary institution and the Master Servicer pursuant to which a
Lock-Box Account is created.
"LOSSES" has the meaning set forth in Section 12.4.
"MASTER SERVICER" means Xxxxx Fargo Bank, National Association
and its permitted successors or assigns.
"MASTER SERVICER REMITTANCE DATE" means for each Distribution
Date the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by
the Master Servicer and in such media as may be agreed upon by the Master
Servicer and the Paying Agent containing such information regarding the Mortgage
Loans as will permit the Paying Agent to calculate the amounts to be distributed
to the Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report to Certificateholders required to be delivered
hereunder and containing such additional information as the Master Servicer, the
Paying Agent and the Depositor may from time to time mutually agree.
"MATURITY DATE" means, with respect to any Mortgage Loan as of
any date of determination, the date on which the last payment of principal is
due and payable under the related Mortgage Note, after taking into account all
Principal Prepayments received and any Deficient Valuation, Debt Service
Reduction Amount or modification of the Mortgage Loan occurring prior to such
date of determination, but without giving effect to (i) any acceleration of the
principal of such Mortgage Loan or (ii) any grace period permitted by the
related Mortgage Note.
"MODIFICATION FEE" means a fee, if any, collected from a
Mortgagor by the Master Servicer in connection with a modification of any
Mortgage Loan other than a Specially Serviced Mortgage Loan or collected by the
Special Servicer in connection with the modification of a Specially Serviced
Mortgage Loan.
"MODIFICATION LOSS" means (i) a decrease in the principal
balance of a Mortgage Loan as a result of a modification thereof in accordance
with the terms hereof, (ii) any expenses connected with such modification, to
the extent (x) reimbursable to the Trustee, the Special Servicer or the Master
Servicer and (y) not recovered from the Mortgagor or (iii) in the case of a
modification of a Mortgage Loan that reduces the Mortgage Rate thereof, the
excess, on each Due Date, of the amount of interest that would have accrued at a
rate equal to the original
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Mortgage Rate, over interest that actually accrued on such Mortgage Loan during
the preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, the
Maturity Date, Mortgage Rate, principal balance, amortization term or payment
frequency thereof or any provision thereof requiring the payment of a prepayment
premium, yield maintenance payment or percentage premium in connection with a
principal prepayment (and shall not include late fees or default interest
provisions).
"MONTHLY CERTIFICATEHOLDER REPORT" means a report provided
pursuant to Section 5.4 by the Paying Agent monthly as of the related
Determination Date generally in the form and substance of Exhibit M, which sets
forth, to the extent applicable: (i) the amount, if any, of such distributions
to the holders of each Class of Principal Balance Certificates applied to reduce
the respective Certificate Balances thereof; (ii) the amount of such
distribution to holders of each Class of Certificates allocable to (A) interest
accrued at the respective Pass-Through Rates, less any Net Aggregate Prepayment
Interest Shortfalls and (B) Prepayment Premiums; (iii) the number of outstanding
Mortgage Loans and the aggregate Principal Balance and Scheduled Principal
Balance of the Mortgage Loans at the close of business on such Distribution
Date; (iv) the number and aggregate Scheduled Principal Balance of Mortgage
Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or
more days, (D) as to which foreclosure proceedings have been commenced, or (E)
as to which bankruptcy proceedings have been commenced; (v) with respect to any
REO Property included in the Trust, the Principal Balance of the related
Mortgage Loan as of the date of acquisition of the REO Property and the
Scheduled Principal Balance thereof; (vi) as of the related Determination Date
(A) as to any REO Property sold during the related Collection Period, the date
of the related determination by the Special Servicer or Master Servicer, as the
case may be, that it has recovered all payments which it expects to be finally
recoverable and the amount of the proceeds of such sale deposited into the
Certificate Account, and (B) the aggregate amount of other revenues collected by
the Special Servicer with respect to each REO Property during the related
Collection Period and credited to the Certificate Account, in each case
identifying such REO Property by the loan number of the related Mortgage Loan;
(vii) the aggregate Certificate Balance or Notional Amount, as the case may be,
of each Class of Certificates before and after giving effect to the distribution
made on such Distribution Date; (viii) the aggregate amount of Principal
Prepayments made during the related Collection Period; (ix) the Pass-Through
Rate applicable to each Class of Certificates for such Distribution Date; (x)
the aggregate amount of servicing fees paid to the Master Servicer and the
Special Servicer; (xi) the amount of Unpaid Interest, Realized Losses or Expense
Losses, if any, incurred with respect to the Mortgage Loans, including a
description of any Expense Losses; (xii) the aggregate amount of Servicing
Advances and P&I Advances outstanding that have been made by the Master
Servicer, the Trustee and the Fiscal Agent, separately stated; and (xiii) the
amount of any Appraisal Reductions effected during the related Collection Period
on a loan-by-loan basis and the total Appraisal Reductions in effect as of such
Distribution Date. In the case of information furnished pursuant to subclauses
(i), (ii) and (xi) above, the amounts shall be expressed in the aggregate and as
a dollar amount per $1,000 of original principal amount of the Certificates for
all Certificates of each applicable Class.
"MOODY'S" means Xxxxx'x Investors Service, Inc. or its
successor in interest.
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"MORTGAGE" means the mortgage, deed of trust or other
instrument securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all
intervening endorsements, endorsed "Pay to the order of LaSalle National Bank,
as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1, without recourse" or if the original Mortgage
Note is not included therein, then a lost note affidavit and indemnity with a
copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of
recording thereon, and, if the Mortgage was executed pursuant to a power of
attorney, a certified true copy of the power of attorney certified by the public
recorder's office, with evidence of recording thereon, or certified by a title
insurance company or escrow company to be a true copy thereof; provided that if
such original Mortgage or power of attorney cannot be delivered with evidence of
recording thereon on or prior to the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Depositor shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (A) in the case of a delay caused by the public
recording office, an Officer's Certificate of the applicable Seller stating that
such original Mortgage has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Mortgage that has
been lost after recordation, a copy of such Mortgage, certified by the
appropriate county recording office where such Mortgage is recorded to be a true
and complete copy of the original recorded Mortgage;
(iii) the originals of all Money Term or material
modification, consolidation and extension agreements, if any, with evidence of
recording thereon, or if such original modification, consolidation and extension
agreements have been delivered to the appropriate recording office for
recordation and either have not yet been returned with evidence of recordation
thereon or have been lost after recordation, true copies of such modifications,
consolidations and extensions certified by the applicable Seller together with
(A) in the case of a delay caused by the public recording office, an Officer's
Certificate of the applicable Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to the
appropriate public recording official for recordation or (B) in the case of an
original modification, consolidation or extension agreement that has been lost
after recordation, a copy of such modification, consolidation or extension
agreement certified by the appropriate county recording office where such
document is recorded to be a true and complete copy of the original recorded
modification, consolidation or extension agreement, and the originals of all
assumption agreements, if any, each signed by the holder of record in favor of
"LaSalle National Bank, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-WF1;"
(iv) an original Assignment of Mortgage for each
Mortgage Loan, in form and substance acceptable for recording, signed by the
holder of record in favor of "LaSalle National Bank, as Trustee for Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-WF1;"
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(v) originals of all intervening Assignments of
Mortgage, if any, with evidence of recording thereon or, if such original
Assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such Assignments of Mortgage certified
by the applicable Seller, or in the case of an original blanket intervening
Assignment retained by the applicable Seller, a copy thereof certified by the
applicable Seller or, if any original intervening Assignment has not been
returned from the applicable recording office or has been lost, a true and
correct copy thereof, together with (A) in the case of a delay caused by the
public recording office, an Officer's Certificate of the applicable Seller
stating that such original intervening Assignment has been sent to the
appropriate public recording official for recordation or (B) in the case of an
original intervening Assignment that has been lost after recordation, a copy of
such intervening Assignment certified by the appropriate county recording office
where such assignment is recorded to be a true and complete copy of the original
recorded intervening Assignment;
(vi) if the related Assignment of Leases is separate
from the Mortgage, the original of such Assignment of Leases with evidence of
recording thereon or, if such Assignment of Leases has not been returned from
the applicable public recording office, a copy of such Assignment of Leases
certified by the applicable Seller to be a true and complete copy of the
original Assignment of Leases submitted for recording, together with (A) an
original of each assignment of such Assignment of Leases with evidence of
recording thereon and showing a complete recorded chain of assignment from the
named assignee to the holder of record, and if any such assignment of such
Assignment of Leases has not been returned from the applicable public recording
office, a copy of such assignment certified by the applicable Seller to be a
true and complete copy of the original assignment submitted for recording, and
(B) an original assignment of such Assignment of Leases, in recordable form,
signed by the holder of record in favor of "LaSalle National Bank, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1," which assignment may be effected in the related
Assignment of Mortgage;
(vii) the original of each guaranty, if any,
constituting additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the
event such original Title Insurance Policy has not been issued, an original
binder or actual title commitment or a copy thereof certified by the title
company with the original Title Insurance Policy to follow within 180 days of
the Closing Date or a preliminary title report with an original Title Insurance
Policy to follow within 180 days of the Closing Date;
(ix) UCC financing statements (together with all
assignments thereof to the Trustee) executed and delivered in connection with
any Mortgage Loan;
(x) copies of ground leases, if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such lease and there is a
lien in favor of the mortgagee in such lease;
(xi) copies of any lock-box agreements, intercreditor
agreements and management agreements, if any, related to any Mortgage Loan; and
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(xii) the original of each Letters of Credit, if any,
constituting additional collateral for such Mortgage Loan, together with the
original supporting documentation evidencing a beneficial transfer, in favor of
"LaSalle National Bank, as trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial
Pass-Through Certificates, Series 1999-WF1"; provided, however, the Trustee
shall hold such Letter of Credit only in a custodial capacity and shall have no
obligation to maintain, extend the term of, enforce, or otherwise preserve any
rights under such Letter of Credit;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian on its behalf, such terms shall
not be deemed to include such documents required to be included therein unless
they are actually so received.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage,
and all amendments and modifications thereof, identified on the Mortgage Loan
Schedule, as amended from time to time, and conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.1 or Section
2.3, and Mortgage Loan shall also include any Defeasance Loan.
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan
Purchase Agreement I or Mortgage Loan Purchase Agreement II, as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain
Mortgage Loan Purchase Agreement dated as of February 1, 1999 between Xxxxx
Fargo and the Depositor with respect to the Xxxxx Fargo Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain
Mortgage Loan Purchase Agreement between MSMC and the Depositor dated as of
February 1, 1999 with respect to the MSMC Loans.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively
the schedule attached hereto as Schedule I, which identifies each MSMC Loan, and
the schedule attached hereto as Schedule II, which identifies each Xxxxx Fargo
Loan, as such schedules may be amended from time to time pursuant to Section
2.3.
"MORTGAGE NOTE" means the note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, the per
annum rate at which interest accrues on such Mortgage Loan.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date
of determination, the holder of the related Mortgage Note as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
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"MSMC" has the meaning assigned in the Preliminary Statement
hereto.
"MSMC LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on
Schedule I hereto.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, (i) with respect to all Mortgage Loans which are not
Specially Serviced Mortgage Loans, the excess, if any, of aggregate Prepayment
Interest Shortfalls for such Mortgage Loans over the sum of (A) the portion of
the aggregate Servicing Fee for the related Collection Period calculated in
respect of all such Mortgage Loans (including REO Mortgage Loans) less the
portion thereof payable to the Sub-Servicers as Sub-Servicing Fees and (B) the
aggregate Prepayment Interest Excesses for such Collection Period for all
Mortgage Loans which are not Specially Serviced Mortgage Loans, and (ii) with
respect to all Specially Serviced Mortgage Loans on which there have been
voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications to Specially Serviced Mortgage Loans), the excess, if any, of
aggregate Prepayment Interest Shortfalls for such Mortgage Loans over the sum of
(A) the portion of the aggregate Special Servicing Fee for the related
Collection Period calculated in respect of all Specially Serviced Mortgage Loans
(including REO Mortgage Loans) and (B) the aggregate Prepayment Interest
Excesses for such Collection Period for all Specially Serviced Mortgage Loans
(including REO Mortgage Loans).
"NEW LEASE" means any lease of any REO Property entered into
on behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
"NEW YORK PRESENTING OFFICE" means an office, if any, of an
agent of the Trustee, the Certificate Registrar or the Paying Agent, as the
Trustee, the Certificate Registrar or the Paying Agent may designate from time
to time by written notice to the Depositor and the Certificateholders.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as
amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of
Counsel to the effect that a contemplated action will neither cause any REMIC
Pool to fail to qualify as a REMIC at any time that any Certificates are
outstanding nor cause a "prohibited transaction," "prohibited contribution" or
any other tax to be imposed on any REMIC Pool or the Trust.
"NONRECOVERABLE ADVANCE" means the portion of any Advance
(including interest accrued thereon at the Advance Rate) previously made or
proposed to be made by the Master Servicer, the Trustee or the Fiscal Agent
that, in its sole discretion, exercised in good faith and, with respect to the
Master Servicer, in accordance with the Servicing Standard, that will not or, in
the case of a current delinquency, would not be, ultimately recoverable, from
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase
Proceeds from any collections with respect to the related Mortgage Loan or REO
Property, as evidenced by an Officer's Certificate delivered pursuant to Section
4.4. Such Officer's Certificate shall be delivered to the Trustee (upon which
the Trustee may conclusively rely) or to the Depositor (if
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the Trustee or the Fiscal Agent is delivering such Officer's Certificate) and
(in either case) to the Special Servicer and the Paying Agent in the time
periods as specified in Section 4.4 and shall include the information and
reports set forth in Section 4.4. In determining whether an Advance with respect
to any Mortgage Loan will be recoverable, the Master Servicer, the Trustee or
the Fiscal Agent, as applicable, shall take into account amounts that may be
realized on the related Mortgaged Property in its "as is" or then current
condition and occupancy. Absent bad faith, the Master Servicer's determination
as to the recoverability of any Advance shall be conclusive and binding on the
Certificateholders and may, in all cases, be relied on by the Trustee and the
Fiscal Agent.
"NON-REGISTERED CERTIFICATE" means unless and until registered
under the Securities Act, any Class X, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O or Residual Certificate.
"NOTIONAL AMOUNT" means, as of any date of determination: (i)
with respect to all of the Class X Certificates as a Class, the Class X Notional
Amount as of such date of determination; and (ii) with respect to any Class X
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X Notional Amount as of such date of determination.
"OFFICER'S CERTIFICATE" means (w) in the case of the
Depositor, a certificate signed by one or more of the Chairman of the Board, any
Vice Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (x) in
the case of the Master Servicer and the Special Servicer, any of the officers
referred to above or an employee thereof designated as a Servicing Officer or
Special Servicing Officer pursuant to this Agreement, (y) in the case of the
Trustee or the Fiscal Agent, a certificate signed by a Responsible Officer and
(z) in the case of the Paying Agent, a certificate signed by any officer
assigned to the Corporate Trust Services Group of the Paying Agent, each with
specific responsibilities for the matters contemplated by this Agreement.
"OPERATING ADVISER" shall have the meaning specified in
Section 9.37(a).
"OPERATING ADVISER VOTES" shall mean the votes cast at a duly
called meeting by the Holders of the Controlling Class to elect an Operating
Adviser.
"OPINION OF COUNSEL" means a written opinion of counsel
addressed to the Trustee, reasonably acceptable in form and substance to the
Trustee, and who may be in-house or outside counsel to the party required to
deliver such opinion but who, in the good faith judgment of the Trustee, is
Independent outside counsel knowledgeable of the issues occurring in the
practice of securitization with respect to any such opinion of counsel
concerning the taxation, or status as a REMIC for tax purposes, of the Trust or
any REMIC Pool.
"OWNERSHIP INTEREST" means, 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.
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"X&X ADVANCE" shall mean, (i) with respect to any Mortgage
Loan or Specially Serviced Mortgage Loan as to which all or a portion of the
Scheduled Payment (other than a Balloon Payment) due during the related
Collection Period was not received by the Master Servicer as of the related
Determination Date, the portion of such Scheduled Payment not received; (ii)
with respect to any Balloon Mortgage Loan (including any REO Property as to
which the related Mortgage Loan provided for a Balloon Payment) as to which a
Balloon Payment was due during or prior to the related Collection Period but was
delinquent, in whole or in part, as of the related Determination Date, an amount
equal to the excess, if any, of the Assumed Scheduled Payment for such Balloon
Mortgage Loan for the related Collection Period, over any Late Collections
received in respect of such Balloon Payment during such Collection Period; and
(iii) with respect to each REO Property, an amount equal to the excess, if any,
of the Assumed Scheduled Payment for the Mortgage Loan related to such REO
Property during the related Collection Period, over remittances of REO Income to
the Master Servicer by the Special Servicer, reduced by any amounts required to
be paid as taxes on such REO Income (including taxes imposed pursuant to Section
860G(c) of the Code); provided, however, that the interest portion of any
Scheduled Payment or Assumed Scheduled Payment shall be advanced at a per annum
rate equal to the sum of the REMIC I Net Mortgage Rate relating to such Mortgage
Loan or Mortgage Loan relating to such REO Property and the Trustee Fee Rate,
such that the Scheduled Payment or Assumed Scheduled Payment to be advanced as a
P&I Advance shall be net of the Servicing Fee; and provided, further, that the
Scheduled Payment or Assumed Scheduled Payment for any Mortgage Loan which has
been modified shall be calculated based on its terms as modified and provided,
further, that the amount of any P&I Advance with respect to a Mortgage Loan as
to which there has been an Appraisal Reduction will be an amount equal to the
product of (i) the amount required to be advanced without giving effect to this
proviso and (ii) a fraction, the numerator of which is the Principal Balance of
such Mortgage Loan as of the immediately preceding Determination Date less any
Appraisal Reduction and the denominator of which is the Principal Balance of the
Mortgage Loan as of such Determination Date. All P&I Advances for any Mortgage
Loans that have been modified shall be calculated on the basis of their terms as
modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan
or REO Property, the amount of the P&I Advance for each Mortgage Loan computed
for any Distribution Date.
"PASS-THROUGH ENTITY" means any of (A) a regulated investment
company described in Section 851 of the Code, a real estate investment trust
described in Section 856 of the Code, a common trust fund or an organization
described in Section 1381(a) of the Code, (B) any partnership, trust or estate
as such terms are defined in the Code or (C) any person holding a Class R-I,
Class R-II or Class R-III Certificate as nominee for another person.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means initially
with respect to any Class of REMIC I Regular Interests, REMIC II Regular
Interests or REMIC Regular Certificates, other than the X Certificates, for any
Distribution Date, the rate set forth in the Preliminary Statement hereto. For
any Distribution Date occurring thereafter, the Pass-Through Rates for (i) the
REMIC I Regular Interests (other than the REMIC I Excess Interest) shall equal
the REMIC I Net Mortgage Rate on the related Mortgage Loan for such Distribution
Date, (ii) the REMIC II Regular Interests (other than the REMIC II Excess
Interest) shall equal the
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Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (iii)
with respect to the Class X-0, Xxxxx X-0, Class B, Class C, Class G, Class H,
Class J, Class K, Class L, Class M, Class N and Class O Certificates, the lesser
of (A) the fixed rate corresponding to such Class set forth in the Preliminary
Statement hereto and (B) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (iv) the Class X Certificates, the per annum rate equal to
the quotient of the Accrued Certificate Interest thereon for such Distribution
Date and the Class X Notional Amount, (v) the Class D Certificates, the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date minus 0.38%, (vi)
the Class E Certificates, the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date minus 0.03%, and (vii) the Class F Certificates, the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date minus
0.03%.
"PAYING AGENT" means Norwest Bank Minnesota, National
Association and its successor and assigns.
"PAYING AGENT FEE" means the portion of the Trustee Fee
payable to the Paying Agent, which equals for each calendar month, as to each
Mortgage Loan (including REO Mortgage Loans and Defeasance Loans), the portion
of the Paying Agent Fee Rate applicable to such month (determined using the same
methodology that is applied with respect to the Mortgage Rate for such Mortgage
Loan for such month) multiplied by the Scheduled Principal Balance of such
Mortgage Loan immediately before the Due Date occurring in such month.
"PAYING AGENT FEE RATE" means 0.0021% per annum.
"PERCENTAGE INTEREST" means with respect to each Class of
Certificates other than the Residual Certificates, the fraction of such Class
evidenced by such Certificate, expressed as a percentage (carried to four
decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual Certificate,
the percentage interest in distributions (if any) to be made with respect to the
relevant Class, as stated on the face of such Certificate.
"PERMITTED TRANSFEREE" means any Transferee other than a
Disqualified Organization.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PLACEMENT AGENT" means Xxxxxx Xxxxxxx & Co. Incorporated.
"PHASE I ENVIRONMENTAL REPORT" means a report prepared at the
expense of the Person desiring to contribute such property, by an Independent
Person who regularly conducts environmental site assessments in accordance with
then current standards imposed by institutional commercial mortgage lenders and
who has had not less than five years experience in such matters which indicates
such property is in compliance with applicable Environmental
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Laws and that there are no circumstances present at such property relating to
the use, management or disposal of any hazardous substances, hazardous
materials, hazardous wastes or petroleum based materials for which
investigation, testing, monitoring, containment, clean up or remediation could
be required under any Federal, state or local law or regulation.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor
regulations set forth in 29 C.F.R. Section 2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth
in the preliminary statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date
and the related Collection Period, during which a full or partial Principal
Prepayment is made after the Due Date for such Mortgage Loan through and
including the last day of the Collection Period, the amount of interest that
accrues on the Mortgage Loan from such Due Date to the date such payment was
made (net of the Servicing Fee, the Special Servicing Fee, the Paying Agent Fee
and the Trustee Fee), to the extent collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including early payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) made during any Collection Period
prior to the Due Date for such Mortgage Loan in such Collection Period. The
amount of any Prepayment Interest Shortfall shall equal the excess of (A) the
aggregate amount of interest which would have accrued on the Scheduled Principal
Balance of such Mortgage Loan for the 30 days ending on such Due Date if such
Principal Prepayment or Balloon Payment had not been made (net of the Servicing
Fee, the Special Servicing Fee, the Paying Agent Fee and the Trustee Fee) over
(B) the aggregate interest that did so accrue through the date such payment was
made.
"PREPAYMENT PREMIUM" means with respect to any Distribution
Date, the aggregate of all prepayment premiums, yield maintenance payments or
percentage premiums, if any, received during the related Collection Period in
connection with Principal Prepayments or a Defeasance Loan.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan
or REO Mortgage Loan, for purposes of performing calculations with respect to
any Distribution Date, the principal balance of such Mortgage Loan or the
related REO Mortgage Loan outstanding as of the Cut-off Date after taking into
account all principal and interest payments made or due prior to the Cut-Off
Date, reduced (to not less than zero) by (i) any payments or other collections
of amounts allocable to principal on such Mortgage Loan that have been collected
or received during any preceding Collection Period, other than any Scheduled
Payments due in any subsequent Collection Period, and (ii) the principal portion
of any Realized Loss incurred in respect of such Mortgage Loan during any
related Collection Period.
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"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the
Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N and Class O Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution
Date, the sum of the following amounts: (i) the principal portion of all
Scheduled Payments (other than the principal portion of Balloon Payments) and
any Assumed Scheduled Payments due or deemed due, as the case may be, in respect
of the Mortgage Loans and any REO Mortgage Loans for their respective Due Dates
occurring during the related Collection Period; (ii) all payments (including
Principal Prepayments and the principal portion of Balloon Payments) and any
other collections (including Liquidation Proceeds (other than the portion
thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received on or
in respect of the Mortgage Loans during the related Collection Period and that
were identified and applied by the Master Servicer as recoveries of principal
thereof, in each case net of any portion of such payment or other collection
that represents a recovery of the principal portion of any Scheduled Payment
(other than a Balloon Payment) due, or of the principal portion of any Assumed
Scheduled Payment deemed due, in respect of the related Mortgage Loan on a Due
Date during or prior to the related Collection Period and not previously
recovered.
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary
payment or collection of principal on a Mortgage Loan which is received or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in advance of its scheduled Due Date,
including, without limitation, all proceeds, to the extent allocable to
principal, received from the payment of cash in connection with a substitution
shortfall pursuant to Section 2.3; provided, that the pledge by a Mortgagor of
Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to
be a Principal Prepayment.
"PRIVATE PLACEMENT MEMORANDUM" has the meaning set forth in
the preliminary statement hereto.
"PROPOSED DISPOSITION" means a proposed disposition of any
Defaulted Mortgage Loan or the Mortgaged Property related thereto to be
performed as provided in Section 9.15 or 9.17 of this Agreement.
"PROSPECTUS" has the meaning set forth in the preliminary
statement hereto.
"PURCHASE PRICE" means, with respect to the repurchase of a
Mortgage Loan or REO Property pursuant to Article II of this Agreement, a price
equal to the sum of (A) 100% of the unpaid principal balance of such Mortgage
Loan (or deemed principal balance, in the case of an REO Property), plus (B)
accrued but unpaid interest thereon calculated at the Mortgage Rate to, but not
including, the Due Date in the Collection Period in which such purchase occurs,
plus (C) the amount of any expenses related to such Mortgage Loan or REO
Property (including any Servicing Advances, Advance Interest related to such
Mortgage Loan and any Special Servicer Fees and Liquidation Fees) that are
reimbursable to the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent.
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"PURCHASE PROCEEDS" means any cash amounts received by the Master
Servicer in connection with: (i) the repurchase of a Mortgage Loan by a Seller
pursuant to Section 2.3 or (ii) the purchase of the Mortgage Loans and REO
Properties by the Depositor, the Master Servicer, the Special Servicer or the
holders of the Class R-I Certificates pursuant to Section 10.1(b).
"QIB" means a "qualified institutional buyer," as defined in Rule
144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage Loan, an
insurance company duly qualified as such under the laws of the state in which
the related Mortgaged Property is located, duly authorized and licensed in such
state to transact the applicable insurance business and to write the insurance
provided, and that has a claim paying ability rating no lower than two ratings
categories (without regard to pluses or minuses or numerical qualifiers) lower
than the highest rating of any outstanding Class of Certificates from time to
time, but in no event lower than "A2" by Moody's, if rated by Moody's or if not
rated by Moody's, then otherwise approved by Moody's, and "A" by DCR if rated by
DCR or if not rated by DCR, then otherwise approved by DCR, and (ii) with
respect to the Servicer Errors and Omissions Insurance Policy or Servicer
Fidelity Bond an insurance company that has a claim paying ability a rating of
no lower than two ratings categories (without regard to pluses or minuses or
numerical qualifiers) lower than the highest rating of any outstanding Class of
Certificates from time to time, but in no event lower than "A2" by Moody's, if
rated by Moody's or if not rated by Moody's, then otherwise approved by Moody's,
and "A" by DCR if rated by DCR or if not rated by DCR, then otherwise approved
by DCR, or (iii) in either case, a company not satisfying clause (i) or (ii) but
with respect to which Rating Agency Confirmation is obtained.
"QUALIFIED MORTGAGE" means a Mortgage Loan that is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (but without
regard to the rule in Treasury Regulation Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage, or any substantially similar
successor provision) and applicable Treasury Regulations promulgated pursuant
thereto.
"QUALIFYING LEASEHOLD" means a leasehold interest in real property
extending or renewable automatically for a period of at least 30 years, and in
any event at least 10 years beyond the Maturity Date of the related Mortgage
Loan.
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has a principal balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution, not
in excess of the principal balance of the Deleted Mortgage Loan; provided,
however, that, to the extent that the principal balance of such Mortgage Loan is
less than the principal balance of the Deleted Mortgage Loan, then such
differential in principal amount, together with interest thereon at the Mortgage
Rate on the related Mortgage Loan from the date as to which interest was last
paid through the last day of the month in which such substitution occurs, shall
be paid by the party effecting such substitution to the Master Servicer for
deposit into the Certificate Account, and shall be treated as a Principal
Prepayment hereunder; (ii) is accruing interest at a rate of interest at least
equal to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated
maturity not greater than, and not more than
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two years less than, that of the Deleted Mortgage Loan; (iv) has an original
loan-to-value ratio not higher than that of the Deleted Mortgage Loan and a
current loan-to-value ratio (equal to the principal balance on the date of
substitution divided by its current Appraised Value) not higher than the current
loan-to-value ratio of the Deleted Mortgage Loan; (v) will comply with all of
the representations and warranties relating to Mortgage Loans set forth herein,
as of the date of substitution; (vi) has a Phase I Environmental Report relating
to the related Mortgaged Property in its Mortgage Files and such Phase I
Environmental Report does not, in the good faith reasonable judgment of the
Special Servicer, consistent with the Servicing Standard raise material issues
that have not been adequately addressed; (vii) as to which the Trustee has
received an Opinion of Counsel, at the related Seller's expense, that such
Mortgage Loan is a "qualified replacement mortgage" within the meaning of
Section 860G(a)(4) of the Code; and (viii) has a Debt Service Coverage Ratio not
lower than that of the Deleted Mortgage Loan as of the Cut-Off Date unless
otherwise approved by the Special Servicer; provided that no Mortgage Loan may
have a Maturity Date after the date three years prior to the Final Rated
Distribution Date, and provided, further, that no such Mortgage Loan shall be
substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained. In the event that either one mortgage loan is substituted for more
than one Deleted Mortgage Loan or more than one mortgage loan is substituted for
one or more Deleted Mortgage Loans, then (A) the principal balance referred to
in clause (i) above shall be determined on the basis of aggregate principal
balances and (B) the rates referred to in clauses (ii) above and the remaining
term to stated maturity referred to in clause (iii) above shall be determined on
a weighted average basis. Whenever a Qualifying Substitute Mortgage Loan is
substituted for a Deleted Mortgage Loan pursuant to this Agreement, the party
effecting such substitution shall certify that such Mortgage Loan meets all of
the requirements of this definition and shall send such certification to the
Trustee, which shall deliver a copy of such certification to the Special
Servicer promptly, and in any event within five Business Days following the
Trustee's receipt of such certification.
"RATING AGENCIES" means DCR and Xxxxx'x.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency that a proposed action, failure to
act, or other event specified herein will not in and of itself result in the
withdrawal, downgrade, or qualification, as applicable, of the rating assigned
by such Rating Agency to any Class of Certificates then rated by such Rating
Agency.
"REALIZED INTEREST LOSS" means (i) in the case of a Liquidation
Realized Loss, the portion of any Liquidation Realized Loss that exceeds the
Realized Principal Loss on the related Mortgage Loan, (ii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to accrued
interest on the related Mortgage Loan, (iii) in the case of an Expense Loss, an
Expense Loss resulting in any period from the payment of the Special Servicing
Fee or (iv) in the case of a Modification Loss, a Modification Loss described in
clause (ii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss. Realized Losses on a Mortgage Loan
are allocated first to the principal balance of, and then to interest on such
Mortgage Loan.
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"REALIZED PRINCIPAL LOSS" means (i) in the case of a Liquidation
Realized Loss, the amount of such Realized Loss, to the extent that it does not
exceed the principal balance of the Mortgage Loan (or deemed principal balance,
in the case of REO Property), (ii) in the case of a Modification Loss, the
amount of such Modification Loss described in clause (i) of the definition
thereof, (iii) in the case of a Bankruptcy Loss, the portion of such Realized
Loss attributable to the reduction in the principal balance of the related
Mortgage Loan, and (iv) in the case of an Expense Loss, the portion thereof not
treated as a Realized Interest Loss.
"RECORD DATE" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan or REO Property following the period
in which a Final Recovery Determination occurs plus other amounts defined as
"Recoveries" herein.
"REGISTERED CERTIFICATES" means, collectively, the Class A-1, Class
A-2, Class B, Class C, Class D, Class E and Class F Certificates.
"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect to
any Class of Certificates offered and sold outside of the United States in
reliance on Regulation S, a single temporary global Certificate, in definitive,
fully registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan that was modified, based on the
modified terms), (ii) no other Servicing Transfer Event has occurred and is
continuing (or with respect to determining whether a Required Appraisal Loan is
a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other
Appraisal Event has occurred and is continuing) and (iii) the Trust has been
reimbursed for all costs incurred as a result of the occurrence of a Servicing
Transfer Event or such amounts have been forgiven.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
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"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and the Distribution Account, the Insurance Policies and any
REO Properties, for which a REMIC election has been made pursuant to Section
12.1(a) hereof.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means, as to any REMIC I Regular
Interest, a rate per annum equal to the Mortgage Rate for the related Mortgage
Loan as of the Cut-Off Date (and without regard to any modification, waiver or
amendment of the terms thereof following the Cut-Off Date) calculated on a 360
day year consisting of 12-30 day months regardless of the actual terms of the
related Mortgage Loan, minus the Administrative Cost Rate.
"REMIC I REGULAR INTERESTS" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to each Mortgage Loan, (i) an interest having an initial
Certificate Balance equal to the Cut-Off Date Scheduled Principal Balance of
such Mortgage Loan, and which has a Pass-Through Rate equal to the REMIC I Net
Mortgage Rate of such Mortgage Loan; provided, however, that for purposes of
this definition only REMIC I Net Mortgage Rate of such Mortgage Loan shall
exclude the portion of interest consisting of Excess Interest, if any, relating
thereto, and (ii) the REMIC I Excess Interest.
"REMIC I EXCESS INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of the
aggregate amount of Excess Interest on all Mortgage Loans, if any.
"REMIC II" means the segregated pool of assets consisting of the
REMIC I Regular Interests and the REMIC I Excess Interest for which a REMIC
election has been made pursuant to Section 12.1(a) hereof.
"REMIC II EXCESS INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of the
amounts paid or deemed to be paid to the REMIC I Excess Interest.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class A-1 Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate
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Balance equal to the aggregate Certificates Balance of the Class A-2
Certificates, and which has a Pass-Through Rate equal to the Weighted Average
REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class C Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class D Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class E Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class F Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class G Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class H Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class K Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class L Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class M Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class N Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class O Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II
Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest
B, REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K and
REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II Regular
Interest N, REMIC II Regular Interest O and the REMIC II Excess Interests.
"REMIC III CERTIFICATES" has the meaning set forth in the final
paragraph of the Preliminary Statement hereto.
"REMIC III CLASS O REGULAR INTEREST" shall mean the uncertificated
interest designated as a "regular interest" in REMIC III, which shall be
entitled to the principal and interest paid on the Class O Certificates as set
forth in the table under REMIC III in the Preliminary Statement herein.
"REMIC III EXCESS INTEREST" shall mean the uncertificated interest
designated as a "regular interest" in REMIC III, which shall be entitled to
receive the amount paid on the REMIC II Excess Interest.
"REMIC III REGULAR INTERESTS" means, collectively, the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K and
Class L Certificates, Class M Certificates, Class N Certificates, REMIC III
Class O Regular Interest and the REMIC III Excess Interest.
"REMIC POOL" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(a) hereof.
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"REMIC PROVISIONS" means the 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 regulations and rulings promulgated thereunder, as the foregoing
may be in effect from time to time and taking account, as appropriate, of any
proposed legislation which, as proposed, would have an effective date prior to
enactment thereof and any proposed regulations.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A, Class
X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N and Class O Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO INCOME" means, with respect to any REO Property for any
Collection Period, all income received in connection with such REO Property
during such period less any operating expenses, utilities, real estate taxes,
management fees, insurance premiums, expenses for maintenance and repairs and
any other capital expenses directly related to such REO Property paid during
such period.
"REO MORTGAGE LOAN" means a Mortgage Loan as to which the related
Mortgaged Property is an REO Property.
"REO PROPERTY" means a Mortgaged Property acquired by the Trust
through foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation
from bankruptcy in connection with a Defaulted Mortgage Loan or otherwise
treated as foreclosure property under the REMIC Provisions.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REQUEST FOR RELEASE" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan as to which an
Appraisal Event has occurred. A Mortgage Loan will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"REQUIRED INSURANCE POLICY" means with respect to any Mortgaged
Property, any insurance policy that is required to be maintained from time to
time under this Agreement in
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respect of such Mortgaged Property, including each Standard Hazard Insurance
Policy and, if applicable, flood insurance policy.
"RESERVE ACCOUNT" shall mean the Reserve Account maintained by the
Paying Agent in accordance with the provisions of Section 5.3, which shall be an
Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the Class
R-I Certificates, with respect to REMIC II, the Class R-II Certificates and with
respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee or the Fiscal Agent, any officer assigned to the Asset-Backed Securities
Trust Services Group, or with respect to the Paying Agent, any officer assigned
to the Corporate Trust Services Group, each with specific responsibilities for
the matters contemplated by this Agreement and when used with respect to any
successor Trustee, Fiscal Agent or Paying Agent, any Vice President, Assistant
Vice President, corporate trust officer or any assistant corporate trust
officer.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class O, Class
N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class
D, Class C, Class B and Class A Certificates.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class
of Certificates offered and sold in reliance on Rule 144A or to certain
institutional "accredited investors" within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D of the 1933 Act, a single, permanent global
Certificate, in definitive, fully registered form without interest coupons.
"SCHEDULED PAYMENT" means each scheduled payment of principal of,
and interest on, a Mortgage Loan required to be paid on its Due Date by the
Mortgagor in accordance with the terms of the related Mortgage Note (excluding
all amounts of principal and interest which were due on or before the Cut-Off
Date, whenever received, and taking account of any modifications thereof and the
effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts).
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage
Loan or REO Mortgage Loan, for purposes of performing calculations with respect
to any Distribution Date, the Principal Balance thereof minus the aggregate
amount of any P&I Advances of principal previously made with respect to such
Mortgage Loan or REO Mortgage Loan.
"SELLER" means MSMC or Xxxxx Fargo, as the case may be.
"SENIOR CERTIFICATES" means the Class A and Class X Certificates.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master
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Servicer, the Special Servicer, the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, in accordance with Section 8.2, Section 9.2 and
Section 7.17, respectively.
"SERVICER FIDELITY BOND" OR "FIDELITY BOND" means a bond or
insurance policy under which the insurer agrees to indemnify the Master
Servicer, the Special Servicer, the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, (subject to standard exclusions) for all losses (less
any deductible) sustained as a result of any theft, embezzlement, fraud or other
dishonest act on the part of the Master Servicer's, Special Servicer's, the
Trustee's, the Fiscal Agent's or the Paying Agent's, as the case may be,
directors, officers or employees and is maintained in accordance with Section
8.2, Section 9.2 and Section 7.17, respectively.
"SERVICER'S MORTGAGE FILE" means copies of mortgage documents listed
in the definition of Mortgage File relating to a Mortgage Loan in the possession
of the Master Servicer or originals of any of such documents released to the
Master Servicer from time to time pursuant to the terms of this Agreement.
"SERVICING ADVANCE" means any cost or expense of the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, designated as a
Servicing Advance pursuant to this Agreement and any other costs and expenses
incurred by the Master Servicer, the Trustee or the Fiscal Agent, as the case
may be, to protect and preserve the security for such Mortgage Loan.
"SERVICING FEE" means for each calendar month, as to each Mortgage
Loan (including REO Mortgage Loans and Defeasance Loans), the portion of the
Servicing Fee Rate applicable to such month (determined in the same manner as
the applicable Mortgage Rate is determined for such Mortgage Loan for such
month) multiplied by the Scheduled Principal Balance of each Mortgage Loan
immediately before the Due Date occurring in such month, subject to reduction in
respect of Compensating Interest, as set forth in Section 8.10(c).
"SERVICING FEE RATE" means, with respect to each Mortgage Loan
(including any Mortgage Loan relating to an REO Property), the rate per annum
specified as such on the Mortgage Loan Schedule (including any rate of
Sub-Servicing Fee).
"SERVICING OFFICER" means any officer or employee of the Master
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans whose name and specimen signature appear on a list of
servicing officers or employees furnished to the Trustee by the Master Servicer
and signed by an officer of the Master Servicer, as such list may from time to
time be amended.
"SERVICING STANDARD" means, with respect to the Master Servicer and
the Special Servicer the higher of the following standards of care:
(a) in the same manner in which and with the same care, skill,
prudence and diligence with which the Master Servicer or the Special Servicer,
as the case may be, services and administers similar mortgage loans for other
third-party portfolios, giving due consideration to customary and usual
standards of practice of prudent institutional commercial mortgage
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lenders servicing their own mortgage loans and to the maximization of the net
present value of the mortgage loans; or
(b) the care, skill, prudence and diligence the Master Servicer or
the Special Servicer, as the case may be, uses for loans which it owns and which
are substantially the same as the Mortgage Loans, giving due consideration to
the maximization of the net present value of the mortgage loans;
but without regard to: any relationship that the Master Servicer or Special
Servicer or any Affiliate of the Master Servicer or Special Servicer may have
with the related Mortgagor; the ownership of any Certificate by the Master
Servicer or Special Servicer or any Affiliate; the ownership of any Junior
Indebtedness by the Master Servicer or Special Servicer or any Affiliate with
respect to the Mortgaged Property securing any Mortgage Loan; the Master
Servicer or Special Servicer's right to receive compensation for its services
hereunder or with respect to any particular transaction; the servicing of the
Mortgage Loans that are not Specially Serviced Mortgage Loans by the Master
Servicer; and the Master Servicer's obligation to make Advances and Servicing
Advances as specified herein or the Master Servicer's obligation to repurchase
any Mortgage Loan under the Mortgage Loan Purchase Agreement I.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan as to which a Balloon Payment is past
due, and the Master Servicer has determined, in its good faith reasonable
judgment, that payment is unlikely to be made on or before the 60th day
succeeding the date the Balloon Payment was due, or any other payment is more
than 60 days past due or has not been made on or before the second Due Date
following the due date such payment was due; (ii) any Mortgage Loan as to which,
to the Master Servicer's knowledge, the borrower has consented to the
appointment of a receiver or conservator in any insolvency or similar proceeding
of, or relating to, such borrower or to all or substantially all of its
property, or the borrower has become the subject of a decree or order issued
under a bankruptcy, insolvency or similar law and such decree or order shall
have remained undischarged or unstayed for a period of 60 days; (iii) any
Mortgage Loan as to which the Master Servicer shall have received notice of the
foreclosure or proposed foreclosure of any other lien on the Mortgaged Property;
(iv) any Mortgage Loan as to which the Master Servicer has knowledge of a
default (other than a failure by the related borrower to pay principal or
interest) which in the good faith reasonable judgment of the Master Servicer
materially and adversely affects the interests of the Certificateholders and
which has occurred and remains unremedied for the applicable grace period
specified in such Mortgage Loan (or, if no grace period is specified, 60 days);
(v) any Mortgage Loan as to which the borrower admits in writing its inability
to pay its debts generally as they become due, files a petition to take
advantage of any applicable insolvency or reorganization statute, makes an
assignment for the benefit of its creditors or voluntarily suspends payment of
its obligations; and (vi) any Mortgage Loan as to which, in the good faith
reasonable judgment of the Master Servicer, a default has occurred or in the
judgment of the Master Servicer is imminent or is likely to occur within 60
days.
"SINGLE-PURPOSE ENTITY" means a Person, other than an individual,
whose organizational documents provide that it is formed solely for the purpose
of owning and operating Defeasance Collateral for the benefit of the Trust and
which (i) does not engage in any business unrelated thereto and the financing
thereof; (ii) does not have any assets other than
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those related to its interest in Defeasance Collateral; (iii) 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; (iv) conducts business in its
own name and uses separate stationery, invoices and checks; (v) does not
guarantee or assume the debts or obligations of any other Person; (vi) does not
commingle its assets or funds with those of any other Person; (vii) transacts
business with affiliates on an arm's length basis pursuant to written
agreements; and (viii) holds itself out as being a legal entity, separate and
apart from any other Person. The entity's organizational documents also provide
that any dissolution and winding up or insolvency filing for such entity
requires the unanimous consent of all partners or members, as applicable, and
that such documents may not be amended with respect to the Single-Purpose Entity
requirements.
"SPECIAL SERVICER" means GMAC Commercial Mortgage Corporation or any
successor Special Servicer as herein provided.
"SPECIAL SERVICER COMPENSATION" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out Fees.
"SPECIAL SERVICER MONTHLY REPORTS" mean the reports substantially in
the form of Exhibit O attached hereto.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day preceding
each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan which is a Specially Serviced Mortgage Loan, the fraction or
portion of the Special Servicing Fee Rate applicable to such month (determined
using the same interest accrual methodology that is applied with respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Specially Serviced Mortgage Loan immediately before
the Due Date occurring in such month, subject to reduction in respect of
Compensating Interest as set forth in Section 9.11.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and the Master Servicer by the Special Servicer signed
by an officer of the Special Servicer, as such list may from time to time be
amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan with respect to which the Master Servicer has
notified the Special Servicer, the Paying Agent and the Trustee that a Servicing
Transfer Event has occurred (which notice shall be effective upon receipt) and
the Special Servicer has received all information, documents and records
relating to such Mortgage Loan as reasonably requested by the Special Servicer
to enable it to assume its duties with respect to such Mortgage Loan. A
Specially Serviced Mortgage Loan shall cease to be a Specially Serviced Mortgage
Loan from and after the date on which the Special Servicer notifies the Master
Servicer, the Paying Agent and the Trustee, in
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accordance with Section 8.1(b), that such Mortgage Loan has become a
Rehabilitated Mortgage Loan with respect to such Servicing Transfer Event,
unless and until the Master Servicer notifies the Special Servicer, the Paying
Agent and the Trustee, in accordance with Section 8.1(b) that another Servicing
Transfer Event with respect to such Mortgage Loan exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"SUB-SERVICER" shall have the meaning set forth in Section 8.4.
"SUB-SERVICING FEE" means with respect to each Mortgage Loan
(including Mortgage Loans relating to REO Properties) the monthly fee payable to
the applicable Sub-Servicer based on the per annum rate specified on the
Mortgage Loan Schedule.
"SUBORDINATE CERTIFICATES" means, collectively, the Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N and Class O Certificates.
"TAX MATTERS PERSON" means the person designated as the "tax matters
person" of the REMIC Pool pursuant to Treasury Regulation Section 1.860F-4(d)
and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" shall have the meaning set forth in Section
10.1(b) herein.
"TITLE INSURANCE POLICY" means a title insurance policy maintained
with respect to a Mortgage Loan issued on the date of origination of the related
Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the
assets which consist of all the assets of REMIC I (including the Mortgage Loans,
such amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Insurance Policies, any REO Properties and other items
referred to in Section 2.1(a) hereof), REMIC II and REMIC III.
"TRUSTEE" means LaSalle National Bank, as Trustee, or its
successor-in-interest, or if any successor trustee, or any co-trustee shall be
appointed as herein provided, then Trustee shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
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"TRUSTEE FEE" means for each calendar month, as to each Mortgage
Loan (including REO Mortgage Loans and Defeasance Loans), the portion of the
Trustee Fee Rate applicable to such month (determined using the same interest
accrual methodology that is applied with respect to the Mortgage Rate for such
Mortgage Loan for such month) multiplied by the Scheduled Principal Balance of
each Mortgage Loan immediately before the Due Date occurring in such month,
provided that a portion of the Trustee Fee shall be applied to pay the Paying
Agent Fee.
"TRUSTEE FEE RATE" means 0.0035% per annum (of which 0.0021% per
annum constitutes the Paying Agent Fee Rate).
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in the
definition of Mortgage File hereof pertaining to a particular Mortgage Loan and
any additional documents required to be added to the Mortgage File pursuant to
this Agreement; provided that whenever the term "Trustee Mortgage File" is used
to refer to documents actually received by the Trustee or a Custodian on its
behalf, such terms shall not be deemed to include such documents required to be
included therein unless they are actually so received.
"UNDERWRITER" means each of Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx, Sachs & Co. and Norwest Investment Services, Inc. or their respective
successors in interest.
"UNITED STATES PERSON" means (i) any natural person resident in the
United States, (ii) any partnership or corporation organized or incorporated
under the laws of the United States or any state thereof or the District of
Columbia, (iii) any estate of which an executor or administrator is a U.S.
Person (other than an estate governed by foreign law and of which at least one
executor or administrator is a non-U.S. Person who has sole or shared investment
discretion with respect to its assets), (iv) any trust of which any trustee is a
U.S. Person (other than a trust of which at least one trustee is a non-U.S.
Person and has sole or shared investment discretion with respect to its assets),
(v) any agency or branch of a foreign entity located in the United States, (vi)
any non-discretionary or similar account (other than an estate or trust) held by
a dealer or other fiduciary for the benefit or account of a U.S. Person, (vii)
any discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the United States (other than such an account held for the benefit or account
of a non-U.S. Person), (viii) any partnership or corporation organized or
incorporated under the laws of a foreign jurisdiction and formed by a U.S.
Person principally for the purpose of investing in securities not registered
under the 1933 Act (unless it is organized or incorporated, and owned, by
accredited investors within the meaning of Rule 501(A) under the 1933 Act who
are not natural persons, estates or trusts); provided, however, that the term
"U.S. Person" shall not include (A) a branch or agency of a U.S. Person that is
located and operating outside the United States for valid business purposes as a
locally regulated branch or agency engaged in the banking or insurance business,
(B) any employee benefit plan established and administered in accordance with
the law, customary practices and documentation of a foreign country and (C) the
international organizations set forth in Section 902(o)(7) of Regulation S under
the 1933 Act and any other similar international organizations, and their
agencies, affiliates and pension plans.
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"UNPAID INTEREST" means, on any Distribution Date with respect to
any Class of Interests or Certificates (other than the Residual Certificates),
the portion of Distributable Certificate Interest for such Class remaining
unpaid as of the close of business on the preceding Distribution Date, plus one
month's interest thereon at the applicable Pass-Through Rate other than unpaid
interest relating to Net Aggregate Prepayment Interest Shortfalls.
"USAP" shall have the meaning set forth in Section 8.13.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with respect to
any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates
for the REMIC I Regular Interests, weighted on the basis of their respective
Certificate Balances as of the close of business on the preceding Distribution
Date.
"XXXXX FARGO" has the meaning assigned in the Preliminary Statement
hereof.
"XXXXX FARGO LOANS" means, collectively those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"WORK-OUT FEE" means a fee payable with respect to any Rehabilitated
Mortgage Loan, equal to the product of (x) 1.0% and (y) the amount of each
collection of interest (other than default interest and Excess Interest) and
principal received on such Mortgage Loan for so long as it remains a
Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS. Calculations
required to be made by the Paying Agent pursuant to this Agreement with respect
to any Mortgage Loan shall be made based upon current information as to the
terms of the Mortgage Loans and reports of payments received from the Master
Servicer on such Mortgage Loans and payments to be made to the Paying Agent as
supplied to the Paying Agent by the Master Servicer. The Paying Agent shall not
be required to recompute, verify or recalculate the information supplied to it
by the Master Servicer and may conclusively rely upon such information in making
such calculations. If, however, a Responsible Officer of the Paying Agent has
actual knowledge of an error in the calculations, the Paying Agent shall inform
the Master Servicer of such error.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued
interest on any Certificate shall be calculated based upon a 360-day year
consisting of twelve 30-day months and Pass-Through Rates shall be carried out
to eight decimal places, rounded if necessary. All dollar amounts calculated
hereunder shall be rounded to the nearest xxxxx.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholder Report, Special Servicer Remittance Date,
Master Servicer Remittance Date or Determination Date, such reference shall be
to the Collection Period, Interest Accrual Period, Record Date, Due Date, Report
Date, Special Servicer Remittance Date, Master Servicer Remittance Date or
Determination Date, as applicable, immediately preceding such Distribution Date.
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(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement, shall refer to this agreement as a
whole and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to
such term shall be equally applicable to both the singular and plural forms of
such term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
SECTION 1.5 HYPER-AMORTIZATION LOANS. Notwithstanding any provision
of this Agreement;
(a) For each Hyper-Amortization Loan, the Excess Interest accruing
as a result of the step-up in the Mortgage Rate upon failure of the related
Mortgagor to pay the principal on the Anticipated Repayment Date as specifically
provided for in the related Mortgage Note shall not be taken into account for
purposes of the definitions of "Appraisal Reduction Amount," "Assumed Scheduled
Payment," "Mortgage Rate," "Monthly Payment," "Purchase Price" and "Realized
Loss."
(b) Excess Interest shall constitute an asset of the Trust.
(c) Neither the Master Servicer nor the Special Servicer shall take
any enforcement action with respect to the payment of Excess Interest unless the
taking of such action is consistent with the Servicing Standard and all other
amounts due under such Mortgage Loan have been paid, and, in the good faith and
reasonable judgment of the Master Servicer and the Special Servicer, as the case
may be, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated Excess Interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Additional
Interest.
(e) With respect to such Hyper-Amortization Mortgage Loan after its
Anticipated Repayment Date, the Master Servicer or the Special Servicer, as the
case may be, shall be permitted, in its discretion, to waive in accordance with
Section 8.18 and Section 9.5 hereof all or any accrued Excess Interest if, prior
to the related Maturity Date, the related Mortgagor has requested the right to
prepay the Mortgage Loan in full together with all payments required by the
Mortgage Loan in connection with such prepayment except for all or a
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portion of accrued Excess Interest, provided that the Master Servicer's or the
Special Servicer's determination to waive the right to such accrued Excess
Interest is in accordance with the Servicing Standard and with Section 8.18 and
Section 9.5 hereof. The Master Servicer or the Special Servicer, as the case may
be, will have no liability to the Trust, the Certificateholders or any other
person so long as such determination is based on such criteria.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign to the Trustee, without recourse, for the benefit of
the Certificateholders all the right, title and interest of the Depositor, in,
to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule,
(ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are
permitted to be assigned pursuant to Sections 14 or 15 thereof as applicable,
(iii) the Initial Deposit and (iv) all other assets included or to be included
in REMIC I for the benefit of REMIC II and REMIC III. Such assignment includes
all interest and principal received or receivable on or with respect to the
Mortgage Loans and due after the Cut-Off Date. The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and is
intended by the parties to constitute a sale. In connection with the initial
sale of the Certificates by the Depositor, the purchase price to be paid
includes a portion attributable to interest accruing on the Certificates from
the Cut-off Date.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Seller pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Trustee or a Custodian appointed thereby, on or
before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned,
endorsed to the Trustee as specified in clause (i) of the definition of
"Mortgage File." The Depositor hereby represents that each Seller is required,
pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the
Trustee the remaining documents constituting the Mortgage File for each Mortgage
Loan within 30 days following the Closing Date. None of the Trustee, the Fiscal
Agent, the Paying Agent, any Custodian, the Master Servicer or the Special
Servicer shall be liable for any failure by either Seller or the Depositor to
comply with the document delivery requirements of the Mortgage Loan Purchase
Agreements and this Section 2.1(b).
(c) The Master Servicer shall, at the expense of the applicable
Seller of the related Mortgage Loan, as to each Mortgage Loan, promptly (and in
any event within 45 days following the receipt thereof) 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 to the Trustee referred to in clauses (iv), (vi) and (ix) 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 or
filing; provided that in those
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instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases the Master Servicer shall obtain
therefrom at the expense of the related Seller a certified copy of the recorded
original. The Master Servicer shall forward copies thereof to the Trustee and
the Special Servicer. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Master Servicer shall direct each Seller pursuant to the applicable Mortgage
Loan Purchase Agreement promptly to prepare or cause to be prepared a substitute
therefor or cure such defect, as the case may be, and thereafter the Master
Servicer shall upon receipt thereof cause the same to be duly recorded or filed,
as appropriate.
(d) All relevant servicing documents and records in the possession
of the Depositor or the Sellers that relate to the Mortgage Loans and that are
not required to be a part of a Mortgage File in accordance with the definition
thereof shall be delivered to the Master Servicer on or before the Closing Date
and shall be held by the Master Servicer on behalf of the Trustee in trust for
the benefit of the Certificateholders. The Depositor shall deliver or cause the
related Seller to deliver to the Special Servicer a copy of each Mortgage File
to the extent that (i) such copy has not previously been delivered to the
Special Servicer and (ii) the Special Servicer requests (in writing) such copy
within 180 days following the Closing Date. The Depositor shall deliver or cause
the related Seller to deliver such copy within a reasonable period following
such request by the Special Servicer.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Trustee on or before
the Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreements shall contain the representations and
warranties made by the Sellers with respect to each related Mortgage Loan as of
the Closing Date as are set forth on Exhibits R-1 and R-2 hereto.
(f) Concurrently herewith, the Depositor has acquired the MSMC Loans
from MSMC and the Xxxxx Fargo Loans from Xxxxx Fargo. The Depositor will deliver
the original Mortgage Notes (or lost note affidavits with a copies of the
related Mortgage Notes, as described in the definition of Mortgage File)
relating to the Xxxxx Fargo Loans to the Trustee, with the Trustee, on behalf of
the Certificateholders, inserted in the endorsement in blank executed by Xxxxx
Fargo, to effect the transfer to the Trustee of such Mortgage Notes and all
related deeds of trust, mortgages and other loan documents. The Depositor will
deliver the original Mortgage Notes relating to the MSMC Loans to the Trustee,
with the Trustee, on behalf of the Certificateholders, inserted in the
endorsement in blank executed by MSMC, to effect the transfer to the Trustee of
such Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. To avoid the unnecessary expense and administrative inconvenience
associated with the execution and recording of multiple assignment documents,
Xxxxx Fargo and MSMC, as applicable, are required under the Mortgage Loan
Purchase Agreements to deliver Assignments of Mortgages and assignments of UCC
financing statements naming the Trustee, on behalf of the Certificateholders, as
assignee. Notwithstanding the fact that the assignments shall name the Trustee,
on behalf of the Certificateholders, as the assignee, the parties hereto
acknowledge and agree that for all purposes the Xxxxx Fargo Loans shall be
deemed to have been transferred from Xxxxx Fargo to the Depositor, the MSMC
Loans shall be deemed to have been transferred from
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MSMC to the Depositor, and all Mortgage Loans shall be deemed to have been
transferred from the Depositor to the Trustee on behalf of the
Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold (i) the
documents constituting a part of the Mortgage Files delivered to it, (ii) the
REMIC I Regular Interests and (iii) the REMIC II Regular Interests, in each
case, in trust for the use and benefit of all present and future
Certificateholders.
Upon execution and delivery of this Agreement in respect of the
Initial Certification, and within 75 days after the execution and delivery of
this Agreement in respect of the Final Certification, the Trustee shall examine
the Mortgage Files in its possession, and shall deliver to the Depositor, the
Master Servicer and the Special Servicer a certification (the "Initial
Certification" and the "Final Certification", respectively, in the respective
forms set forth as Exhibit B-1 and Exhibit B-2 hereto) (i) in the case of the
Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions to Mortgage
File delivery attached thereto, to the effect that: (A) all documents pursuant
to clauses (i), (ii), (iv), (v) and (viii) of the definition of Mortgage File
are in its possession, (B) such documents have been reviewed by it and have not
been materially mutilated, damaged, defaced, torn or otherwise physically
altered, and such documents relate to such Mortgage Loan, and (C) each Mortgage
Note has been endorsed as provided in clause (i) of the definition of Mortgage
File, and (ii) in the case of the Final Certification, as to each Mortgage Loan
listed in the Mortgage Loan Schedule, except as may be specified in the schedule
of exceptions to Mortgage File delivery attached thereto, to the effect that:
(A) all documents pursuant to clauses (i), (ii), (iv), (v) and (viii) of the
definition of Mortgage File required to be included in the Mortgage File, and
with respect to all documents specified in the other clauses of the definition
of Mortgage File to the extent known by a Responsible Officer of the Trustee to
be required pursuant to this Agreement, are in its possession, (B) such
documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (C) based on its examination and only as to the
Mortgage Note and Mortgage, the street address of the Mortgaged Property and the
name of the borrower set forth in the Mortgage Loan Schedule respecting such
Mortgage Loan accurately reflects the information contained in the documents in
the Mortgage File, and (D) each Mortgage Note has been endorsed and each
Assignment of Mortgage has been delivered as provided in clause (i) and clause
(iv), respectively, of the definition of Mortgage File. The Trustee shall
deliver to the Master Servicer, the Special Servicer and each Seller (as to its
respective Mortgage Loans only), a copy of such Final Certification. Within 360
days after the Cut-Off Date, the Trustee shall provide a confirmation of receipt
of recorded assignments of Mortgage to the Master Servicer, the Special Servicer
and each Seller, and if any recorded assignment of Mortgage has not been
received by the Trustee by such time, the Trustee shall provide information in
such confirmation on the status of missing assignments. In giving the
certifications required above, the Trustee shall be under no obligation or duty
to inspect, review or examine any such documents, instruments, securities or
other papers to determine whether they or the signatures thereon are valid,
legal, genuine, enforceable, in recordable form or appropriate for their
represented purposes, or that they are other than what they purport to be on
their face, or to determine whether any Mortgage File should include any
assumption agreement, modification agreement, consolidation agreement, extension
agreement, Assignment of Lease,
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ground lease, UCC financing statement, guaranty, written assurance, substitution
agreement, lock box agreement, intercreditor agreement, management agreement or
letter of credit.
If, in the course of such review, the Trustee finds any document
constituting a part of a Trustee Mortgage File which does not meet the
requirements of clauses (A) through (D) in the preceding paragraph, the Trustee
shall promptly notify the applicable Seller, the Master Servicer, the Special
Servicer, the Operating Advisor, and the Depositor in writing and the Master
Servicer shall, and the Special Servicer may, request such Seller to correct or
cure such defect in the manner and within the period or periods set forth in the
applicable Mortgage Loan Purchase Agreement and absent such correction or cure,
and, in the case of a defect which results from a failure to meet one or more
requirements of clauses (A) through (C) in the preceding paragraph, such defect
materially and adversely affects the value of the related Mortgage Loan or the
interest of the Trustee in the related Mortgage Loan (in the good faith judgment
of the Master Servicer or the Trustee), or in any event in the case of a defect
under (D), the Master Servicer shall, and the Special Servicer may, request the
applicable Seller, at such Seller's election, to, and such Seller shall be
required promptly upon such request, either (i) substitute for the related
Mortgage Loan, without recourse, a Qualifying Substitute Mortgage Loan or Loans,
which substitution shall be accomplished in the manner and subject to the
conditions set forth in Section 2.3; or (ii) purchase such Mortgage Loan from
the Trust at the Purchase Price therefor in accordance with the related Mortgage
Loan Purchase Agreement. The Purchase Price for any such Mortgage Loan shall be
paid to the Master Servicer and deposited by the Master Servicer in the
Certificate Account. Upon receipt by the Trustee of written notification of
deposit of the Purchase Price or other amount required of the applicable Seller,
signed by a Servicing Officer of the Master Servicer (which notification shall
include a statement as to the accuracy of the calculation of the Purchase Price
or other required deposit), the Trustee shall release the related Trustee
Mortgage File to the applicable Seller and the Trustee and the Depositor shall
execute and deliver such instruments of transfer or assignment in the forms
presented to it, in each case without recourse, representation or warranty as
shall be necessary to vest in such Seller, or its designee, title (to the extent
that such title was transferred to the Depositor or the Trustee) to any Mortgage
Loan released pursuant hereto.
The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR DOCUMENT
DEFECTS AND BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgage
Properties as set forth in the related Mortgage Loan Purchase Agreements, and in
either case such defect (a "Document Defect") or breach (a "Breach") materially
and adversely affects the interests of the holders of the Certificates, such
party shall give prompt written notice to the other parties hereto and to each
Rating Agency. Promptly upon becoming aware of any such Document Defect or
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Breach, the Master Servicer shall, and the Special Servicer may, request that
the related Seller, not later than 90 days from such Seller's receipt of the
notice of such Document Defect or Breach, cure such Document Defect or Breach,
as the case may be, in all material respects; provided, however, that if such
Document Defect or Breach, as the case may be, cannot be corrected or cured in
all material respects within such 90-day period, but the related Seller is
diligently attempting to effect such correction or cure, as certified by such
Seller in an Officer's Certificate delivered to the Trustee, then the cure
period will be extended for an additional 90 days.
If any such Document Defect or Breach cannot be corrected or cured
in all material respects within the above cure periods, the related Seller will
be obligated, not later than the last day of such permitted cure period, if
within the three-month period commencing on the Closing Date (or within the
two-year period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), to (i) repurchase the
affected Mortgage Loan from the Trust at the applicable Purchase Price in
accordance with the related Mortgage Loan Purchase Agreement, or (ii) at the
Seller's option, replace such Mortgage Loan with a Qualifying Substitute
Mortgage Loan. If such Document Defect or Breach would cause the Mortgage Loan
to be other than a "qualified mortgage" (as defined in the Code), then
notwithstanding the previous sentence, repurchase must occur within 90 days from
the date the Seller was notified of the defect and substitution must occur
within the sooner of (i) 90 days from the date the Seller was notified of the
defect or (ii) two years from the Closing Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the Master
Servicer shall cause the related Seller to deliver to the Trustee for such
Qualifying Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the related assignment of the Mortgage, and such other documents and agreements
as are required by Section 2.1, with the Mortgage Note endorsed as required by
Section 2.1. No substitution may be made in any calendar month after the
Determination Date for such month. Monthly payments due with respect to
Qualifying Substitute Mortgage Loans in the month of substitution shall not be
part of the Trust and will be retained by Master Servicer and remitted by the
Master Servicer to the related Seller on the next succeeding Distribution Date.
For the month of substitution, distributions to Certificateholders will include
the Scheduled Payment due on the related Deleted Mortgage Loan for such month
and thereafter the related Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such
amendment the Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee, the Paying Agent and the Special
Servicer. Upon such substitution, the Qualifying Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects. Upon
receipt of the Trustee Mortgage File pertaining to any Qualifying Substitute
Mortgage Loans, the Trustee shall release the Trustee Mortgage File relating to
such Deleted Mortgage Loan to the related Seller, and the Trustee (and the
Depositor, if necessary) shall execute and deliver such instruments of transfer
or assignment in the form presented to it, in each case without recourse,
representation or warranty, as shall be necessary to vest title (to the extent
that such title was
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transferred to the Trustee or the Depositor) in the related Seller or its
designee to any Deleted Mortgage Loan substituted for pursuant to this Section
2.3.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (if any) by which the aggregate
principal balance of all such Qualified Substitute Mortgage Loans as of the date
of substitution is less than the aggregate principal balance of all such Deleted
Mortgage Loans (in each case after application of scheduled principal portion of
the monthly payments received in the month of substitution). The Depositor shall
cause the related Seller to deposit the amount of such shortage into the
Certificate Account in the month of substitution, without any reimbursement
thereof. In addition, the Depositor shall cause the related Seller to deposit
into the Certificate Account, together with such shortage, if any, an amount
equal to interest on the Deleted Mortgage Loans at a rate equal to the sum of
the applicable Mortgage Rate from the Due Date as to which interest was last
paid up to the Due Date next succeeding such substitution together with the
amount of unreimbursed Servicing Advances, amounts required to be paid to the
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance
Rate. The Depositor shall cause the related Seller, in the case of the Mortgage
Loans, to give notice in writing (accompanied by an Officer's Certificate as to
the calculation of such shortage) to the Trustee, the Paying Agent and the
Master Servicer of such event which notice shall be accompanied by an Officers'
Certificate as to the calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the Purchase Price are to be wired. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
Notwithstanding the foregoing, the delivery of a commitment to issue a Title
Insurance Policy in lieu of the delivery of the actual Title Insurance Policy
shall not be considered a Document Defect with respect to any Mortgage File if
such actual Title Insurance Policy is delivered to the Trustee or a Custodian on
its behalf not later than the 180th day following the Closing Date.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Trustee, the Master Servicer
and the Special Servicer shall each tender to the related Seller, upon delivery
to each of them of a receipt executed by such Seller, all portions of the
Mortgage File and other documents pertaining to such Mortgage Loan possessed by
it, and each document that constitutes a part of the Mortgage File shall be
endorsed or assigned to the extent necessary or appropriate to the related
Seller or its designee in the same manner, and pursuant to appropriate forms of
assignment, substantially similar to the manner and forms pursuant to which
documents were previously assigned to the Trustee, but in any event, without
recourse, representation or warranty; provided that such tender by the Trustee
shall be conditioned upon its receipt from the Master Servicer of a Request for
Release. The Master Servicer shall, and is hereby authorized and empowered by
the Trustee to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so.
The Master Servicer shall indemnify the Trustee for all costs, liabilities and
expenses (including attorneys'
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fees) incurred by the Trustee in connection with any negligent or intentional
misuse of any such powers of attorney by the Master Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach. The parties
hereunder understand that (i) Xxxxx Fargo, as Seller under the Mortgage Loan
Purchase Agreement I, will be providing the remedies with respect to the Xxxxx
Fargo Loans, and (ii) MSMC (or to the extent set forth in the Mortgage Loan
Purchase Agreement II, General American Life Insurance Company ("GAL")) will be
providing the remedies with respect to the MSMC Loans under the Mortgage Loan
Purchase Agreement II. Notwithstanding any provision herein to the contrary, to
the extent that, with respect to any Mortgage Loan, any rights or remedies in
favor of MSMC under the agreement between MSMC and GAL that is described in the
Mortgage Loan Purchase Agreement II were assigned by MSMC to the Depositor under
the Mortgage Loan Purchase Agreement II, references in Section 2.3(a) and
Section 2.3(b) to "Seller" shall be deemed, as to such Mortgage Loan, to be
references to GAL (except that such references to "Seller" shall refer to MSMC
to the extent (and only to such extent) that any amounts that MSMC would
otherwise be required to pay under Section 2.3(a) exceed any amounts required to
be paid by GAL under such agreement between MSMC and GAL).
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to the Master Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust), the Fiscal Agent and the
Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the
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consent or approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the
best of the Depositor's knowledge, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Concurrently with the execution
and delivery of this Agreement, the Depositor does hereby transfer, assign, set
over, deposit with and otherwise convey to the Trustee, without recourse, in
trust, all the right, title and interest of the Depositor in and to (i) the
REMIC I Regular Interests in exchange for the REMIC II Interests and (ii) the
REMIC II Regular Interests in exchange for the REMIC III Certificates.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set forth
in Exhibits A-1 through A-19 hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trustee or the
Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with 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.
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,
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all as determined by the officers executing such Certificates, as evidenced by
their execution thereof.
(b) The Class A Certificates will be issuable in denominations of
$25,000 initial Certificate Balance and in any whole dollar denomination in
excess thereof. The Class X, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N and Class O Certificates
will be issuable in denominations of $100,000 initial Certificate Balance or
initial Notional Amount (as applicable) or in any whole dollar denomination in
excess thereof. The Class R-I, Class R-II and Class R-III Certificates will be
issued in minimum Percentage Interests of 10% and integral multiples of 10% in
excess thereof.
(c) Each Certificate shall, on original issue, be authenticated by
the Authenticating Agent upon the order of the Depositor. No Certificate shall
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein, executed by an authorized officer
of the Authenticating Agent by manual signature, and such certification 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. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates to the Authenticating Agent for
authentication and the Authenticating Agent shall authenticate and deliver such
Certificates as in this Agreement provided and not otherwise. In the event that
additional Certificates need to be prepared at any time subsequent to the
Closing Date, the Depositor shall prepare, or cause to be prepared, deliver, or
cause to be delivered, at the Depositor's expense, any such additional
Certificates. With respect to the Class A, Class X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N
and Class O Certificates, on the Closing Date, the Authenticating Agent upon the
order of the Depositor shall authenticate Book-Entry Certificates that are
issued to a Clearing Agency or its nominee as provided in Section 3.7 against
payment of the purchase price thereof.
SECTION 3.2 REGISTRATION. The Paying Agent shall be the initial
Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Trustee or the Certificateholders, and a new
successor may be appointed, in accordance with the procedures and requirements
set forth in Sections 7.6 and 7.7 hereof with respect to the resignation,
discharge or removal of the Trustee and the appointment of a successor Trustee.
The Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the offices of the Certificate
Registrar (which shall be located, as of the Closing Date, at Norwest Center,
Sixth and Marquette, Minneapolis,
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Minnesota 55479-0113), duly endorsed or accompanied by a written instrument of
transfer duly executed by such Holder or such Holder's duly authorized attorney
in such form as shall be satisfactory to the Certificate Registrar. Upon the
transfer of any Certificate in accordance with the preceding sentence, and
subject to the restrictions set forth in the other subsections of this Section
3.3, the Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or one of its Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit D-1 hereto
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as Exhibit
D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer shall be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding such transfer from the Certificateholder desiring to effect
such transfer and/or such Certificateholder's prospective Transferee on which
such Opinion of Counsel is based (such Opinion of Counsel shall not be an
expense of the Trust or of
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the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such). If a transfer of
any interest in a Non-Registered Certificate that constitutes a Book-Entry
Certificate is to be made without registration under the Securities Act (other
than in connection with the initial issuance of the Certificates or a transfer
of any interest in such Non-Registered Certificate by the Depositor or any of
its Affiliates), then the Certificate Owner desiring to effect such transfer
shall be required to obtain either (i) a certificate from such Certificate
Owner's prospective Transferee substantially in the form attached as Exhibit
D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of Counsel to the
effect that such transfer may be made without registration under the Securities
Act. None of the Depositor, the Fiscal Agent, the Trustee, the Master 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 qualification. Any Certificateholder or Certificate Owner
desiring to effect a transfer of Non-Registered Certificates or interests
therein shall, and does hereby agree to, indemnify the Depositor, each
Underwriter, the Trustee, the Fiscal Agent, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar against any liability
that may result if the transfer is not exempt from such registration or
qualification or is not made in accordance with such federal and state laws.
(d) No transfer of a Subordinate or Residual Certificate or any
interest therein shall be made (A) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Xxxxx plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
insurance company general accounts, that is subject to ERISA or Section 4975 of
the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: (i) in the case of a
Subordinate Certificate that constitutes a Book-Entry Certificate, the purchase
and holding of such Certificate or interest therein qualifies for the exemptive
relief available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a Subordinate
or Residual Certificate held as a Definitive Certificate, the prospective
Transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Certificate
Registrar that such transfer will not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or
subject the Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer or the Certificate Registrar to any obligation in addition to
those undertaken in this Agreement. Each Person who acquires any Subordinate or
Residual Certificate or interest therein (unless it shall have acquired such
Certificate or interest therein from the Depositor or an Affiliate thereof or
unless it shall have delivered to the Certificate Registrar the certification of
facts and Opinion of Counsel referred to in clause (ii) of the preceding
sentence) shall be required to deliver to the Certificate Registrar (or, in the
case of an interest in a Subordinate Certificate that constitutes a Book-Entry
Certificate, to the Certificate Owner that is transferring such interest) a
certification to the effect that: (i) it is neither a Plan nor any Person who is
directly or indirectly purchasing such Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with "plan assets" of a Plan; or
(ii) that the purchase and holding of such Certificate or interest therein by
such person qualifies for the exemptive relief available under Sections I and
III of PTCE.
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(e) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Paying Agent under clause (ii)(F) below
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(G) below to negotiate the
terms of any mandatory sale and to execute all instruments of Transfer and to do
all other things necessary in connection with any such sale. The rights of such
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 a United States Person and shall promptly notify the Certificate
Registrar 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, the Certificate
Registrar shall require delivery to it, and no Transfer of any
Residual Certificate shall be registered until the Certificate
Registrar receives, an affidavit and agreement substantially in the
form attached hereto as Exhibit E-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, that it is a United States Person, and that it has
reviewed the provisions of this Section 3.3(e) 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 or is not a United States
Person, no Transfer of an Ownership Interest in a Residual
Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring an 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 E-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted
Transferee or is not a United States Person.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate that is a "pass-through interest
holder" within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) or is holding an
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Ownership Interest in a Residual Certificate on behalf of a
"pass-through interest holder", by purchasing an Ownership Interest
in such Certificate, agrees to give the Certificate Registrar
written notice of its status as such immediately upon holding
acquiring such Ownership Interest in a Residual Certificate.
(F) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this
Section 3.3(e) or if any Holder of a Residual Certificate shall lose
its status as a Permitted Transferee or a United States Person, then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 3.3(e) shall be
restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of
the Trustee, the Fiscal Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar or the Paying Agent 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 3.3(e) 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.
(G) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the restrictions in this
Section 3.3(e), or if any Holder of a Residual Certificate shall
lose its status as a Permitted Transferee or a United States Person,
and to the extent that the retroactive restoration of the rights and
obligations of the prior Holder of such Residual Certificate as
described in clause (ii)(F) above shall be invalid, illegal or
unenforceable, then the Certificate Registrar shall have the right,
without notice to the Holder or any prior Holder of such Residual
Certificate, but not the obligation, to sell such Residual
Certificate to a purchaser selected by the Trustee on such terms as
the Trustee may choose. Such noncomplying Holder shall promptly
endorse and deliver such Residual Certificate in accordance with the
instructions of the Certificate Registrar. Such purchaser may be the
Certificate Registrar itself or any Affiliate of the Certificate
Registrar. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Certificate Registrar or its
Affiliates), expenses and taxes due, if any, will be remitted by the
Certificate Registrar to such noncomplying Holder. The terms and
conditions of any sale under this clause (ii)(G) shall be determined
in the sole discretion of the Certificate Registrar, and the
Certificate Registrar shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of its
exercise of such discretion.
The Master Servicer, on behalf of the Paying Agent, shall make available, upon
written request from the Paying Agent, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest in a
Residual Certificate to any Person who is not a Permitted Transferee, including
the information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an
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Ownership Interest in a Residual Certificate having as among its record holders
at any time any Person which is not a Permitted Transferee. The Person holding
such Ownership Interest shall be responsible for the reasonable compensation of
the Master Servicer and the Paying Agent for providing such information.
The provisions of this Section 3.3(e) set forth prior to this subsection (iv)
may be modified, added to or eliminated, provided that there shall have been
delivered to the Trustee, the Certificate Registrar, the Master Servicer and the
Depositor the following:
(A) written notification from each Rating Agency to the
effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then current rating of any Class of Certificates;
and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, the Certificate Registrar and the
Depositor, to the effect that such modification of, addition to or
elimination of such provisions will not cause any of REMIC I, REMIC
II or REMIC III to (x) cease to qualify as a REMIC or (y) be subject
to an entity-level tax caused by the Transfer of any Residual
Certificate to a Person which is not a Permitted Transferee, or
cause a Person other than the prospective Transferee to be subject
to a tax caused by the Transfer of a Residual Certificate to a
Person which is not a Permitted Transferee.
(f) None of the Master Servicer, the Trustee, the Fiscal Agent, the
Paying Agent or the Certificate Registrar shall have any liability to the Trust
arising from a transfer of any Certificate in reliance upon a certification,
ruling or Opinion of Counsel described in this Section 3.3; provided, however,
that the Certificate Registrar shall not register the transfer of a Residual
Certificate if it has actual knowledge that the proposed transferee does not
meet the qualifications of a permitted Holder of a Residual Certificate as set
forth in Section 3.3(e). The Certificate Registrar shall have no obligation or
duty to monitor, determine or inquire as to compliance with any restriction on
transfer or exchange of Certificates or any interest therein imposed under this
Article III or under applicable law other than to require delivery of the
certifications and/or opinions described in this Article III; provided, however,
that the Certificate Registrar shall not register the transfer of a Residual
Certificate if it has actual knowledge that the proposed transferee does not
meet the qualifications of a permitted Holder of a Residual Certificate as set
forth in Section 3.3(e). The Certificate Registrar shall have no liability for
transfers (including without limitation transfers made through the book-entry
facilities of the Depository or between or among Participants or Certificate
Owners) made in violation of applicable restrictions, provided that the
Certificate Registrar has satisfied its duties expressly set forth in Sections
3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide notice to the Master
Servicer, the Special Servicer and the Depositor of each transfer of a
Certificate and, upon written request,
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provide each such Person with an updated copy of the Certificate Register within
a reasonable period of time following receipt of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If
(A) 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 (B) except in the case of a
mutilated Certificate so surrendered, there is delivered to the Certificate
Registrar such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and interest in the Trust.
In connection with the issuance of any new Certificate under this Section 3.4,
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser, the Paying Agent
and any agent of the Master Servicer, the Special Servicer, the Fiscal Agent,
the Trustee, the Paying Agent or the Operating Adviser may treat the Person in
whose name any Certificate is registered as of the related Record Date as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and neither the Master
Servicer, the Special Servicer, the Fiscal Agent, the Trustee, the Paying Agent,
the Operating Adviser nor any agent of the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Paying Agent or the Operating
Adviser shall be affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, the Operating Adviser, the Paying Agent or the Depositor (A) request
in writing from the Certificate Registrar a list of the names and addresses of
Certificateholders and (B) in the case of a request by Certificateholders, state
that such Certificateholders desire to communicate with other Certificateholders
with respect to their
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rights under this Agreement or under the Certificates, then the Certificate
Registrar shall, within ten Business Days after the receipt of such request,
afford such Certificateholders, the Master Servicer, the Special Servicer, the
Depositor, the Paying Agent or the Operating Adviser, as applicable, access
during normal business hours to a current list of the Certificateholders. The
expense of providing any such information requested by such Person shall be
borne by the party requesting such information and shall not be borne by the
Certificate Registrar or the Trustee. Every Certificateholder, by receiving and
holding a Certificate, agrees that the Certificate Registrar and the Trustee
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) Notwithstanding the foregoing, the Class A-1, Class A-2, Class
X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N and Class O Certificates, upon original issuance,
each shall be issued in the form of one or more Certificates representing the
Book-Entry Certificates, to be delivered to the Certificate Registrar, as
custodian for The Depository Trust Company (the "Depository"), the initial
Clearing Agency, by, or on behalf of, the Depositor. The Certificates shall
initially be registered on the Certificate Register in the name of Cede & Co.,
the nominee of the Depository, as the initial Clearing Agency, and no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in the Certificates, except as provided in Section
3.9. Unless and until Definitive Certificates have been issued to the
Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force
and effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency
for all purposes (including the making of distributions on the
Certificates) as the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7
conflict with any other provisions of this Agreement, the provisions of
this Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class
shall be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency and/or
the Participants. Pursuant to the Depository Agreement, unless and until
Certificates are issued pursuant to Section 3.9, the initial Clearing
Agency will make book-entry transfers among the Participants and receive
and transmit distributions of principal and interest on the related
Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a
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specified percentage of the aggregate unpaid principal amount of Certificates,
such direction or consent may be given by the Clearing Agency at the direction
of Certificate Owners owning Certificates evidencing the requisite percentage of
principal amount of Certificates. The Clearing Agency may take conflicting
actions with respect to the Certificates to the extent that such actions are
taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or to Institutional
Accredited Investors shall be represented by the Rule 144A-IAI Global
Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Certificates evidenced by any Rule
144A-IAI Global Certificate shall be subject to certain restrictions on transfer
as set forth in Section 3.3 hereof and shall bear legend(s) regarding such
restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear or CEDEL; provided, however, that such interests may
be exchanged for interests in the Rule 144A-IAI Global Certificate for such
Class in accordance with the certification requirements described in Section
3.7(f). The Regulation S Permanent Global Certificates shall be deposited with
the Certificate Registrar, as custodian for the Depository and registered in the
name of Cede & Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear or CEDEL (as applicable) a Regulation S Certificate; provided,
however, that any Certificate Owner that holds a beneficial interest in a
Regulation S Temporary Global Certificate on the Release Date or on any such
Distribution Date that has previously delivered a Regulation S Certificate to
Euroclear or CEDEL with respect to its interest therein does not need to deliver
any subsequent Regulation S Certificate (unless the certificate previously
delivered is no longer true as of such subsequent date, and such Certificate
Owner must promptly notify Euroclear or CEDEL, as applicable, thereof).
Euroclear or CEDEL, as applicable, shall be required to promptly deliver to the
Certificate Registrar a certificate substantially in the form of Exhibit I
hereto to the effect that it has received the requisite Regulation S
Certificates for each such Class, and no Certificate Owner (or transferee from
any such Certificate Owner) shall be entitled to receive an interest in the
Regulation S Permanent Global Certificate for such Class or any payment or
principal or interest with respect to its interest in such Regulation S
Temporary Global Certificate prior to the Certificate Registrar receiving such
certification from Euroclear or CEDEL with respect to the portion of the
Regulation S Temporary Global Certificate owned by such Certificate Owner (and,
with respect to an interest in the applicable Regulation S Permanent Global
Certificate, prior to the Release
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Date). After the Release Date, distributions due with respect to any beneficial
interest in a Regulation S Temporary Global Certificate shall not be made to the
holders of such beneficial interests unless exchange for a beneficial interest
in the related Regulation S Permanent Global Certificate is improperly withheld
or refused. No interest in a Regulation S Global Certificate may be held by or
transferred to a U.S. Person (as defined in Regulation S) except for exchanges
for a beneficial interest in the Rule 144A-IAI Global Certificate for such Class
as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Placement Agents. Ownership of beneficial interests in a Global Certificate
shall be limited to Customers or Persons who hold interests directly or
indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of Customers) and the records of Customers (with respect to
interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder
of a Global Certificate, the Depository or such nominee, as the case may be,
shall be considered the sole owner and holder of the Certificates represented by
such Global Certificate for all purposes under this Agreement and the
Certificates, including, without limitation, obtaining consents and waivers
thereunder, and the Paying Agent and the Certificate Registrar shall not be
affected by any notice to the contrary. Except under the circumstance described
in Section 3.9, owners of beneficial interests in a Global Certificate will not
be entitled to have any portions of such Global Certificate registered in their
names, will not receive or be entitled to receive physical delivery of
Definitive Certificates in certificated form and shall not be considered the
owners or holders of the Global Certificate (or any Certificates represented
thereby) under this Agreement or the Certificates. In addition, no Certificate
Owner of an interest in a Global Certificate shall be able to transfer that
interest except in accordance with the Depository's applicable procedures (in
addition to those under this Agreement and, if applicable, those of Euroclear
and CEDEL).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear or CEDEL, as applicable, and the Depository, in the form of an
Exchange Certification (substantially in the form of Exhibit H attached hereto),
to exchange all or a portion of such interest (in authorized denominations as
set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A-IAI
Global Certificate for such Class in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in such Rule
144A-IAI Global Certificate as described herein; provided, however, that no
Exchange Certification shall be required if any such exchange occurs after the
Release Date. Any holder of an interest in the Rule 144A-IAI Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
the Depository and Euroclear or CEDEL, as applicable, in the form of an Exchange
Certification, to
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exchange all or a portion of such interest (in authorized denominations as set
forth in Section 3.1(b)) for an equivalent interest in the Regulation S Global
Certificate for such Class in connection with a transfer of its interest therein
to a transferee that is eligible to hold an interest in such Regulation S Global
Certificate as described herein; provided, however, that if such exchange occurs
prior to the Release Date, the transferee shall acquire an interest in a
Regulation S Temporary Global Certificate only and shall be subject to all of
the restrictions associated therewith described in Section 3.7(d). Following
receipt of any Exchange Certification or request for transfer, as applicable, by
the Certificate Registrar: (i) the Certificate Registrar shall endorse the
schedule to any Global Certificate representing the Certificate or Certificates
being exchanged to reduce the stated principal amount of such Global Certificate
by the denominations of the Certificate or Certificates for which such exchange
is to be made, and (ii) the Certificate Registrar shall endorse the schedule to
any Global Certificate representing the Certificate or Certificates for which
such exchange is to be made to increase the stated principal amount of such
Global Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Paying Agent shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of
beneficial interests in a Global Certificate or their nominees if (i) the
Depository notifies the Depositor and the Certificate Registrar in writing that
the Depository is unwilling or unable to continue as depositary for such Global
Certificate and a qualifying successor depositary is not appointed by the
Depositor within 90 days thereof, (ii) the Trustee has instituted or caused to
be instituted or has been directed to institute any judicial proceeding in a
court to enforce the rights of the Certificateholders under this Agreement and
under such Global Certificate and the Trustee has been advised by counsel that
in connection with such proceeding it is necessary or advisable for the Trustee
or its custodian to obtain possession of such Global Certificate, or (iii) after
the occurrence of an Event of Default, Certificate Owners representing a
majority in aggregate outstanding Certificate Balance of such Global Certificate
advise the Depository through the Participants in writing (and the Depository so
advises the Depositor, the Certificate Registrar and the Master Servicer in
writing) that the continuation in global form of the Certificates being
evidenced by such Global Certificate is no longer in their best interests;
provided, that under no circumstances will Definitive Certificates be issued to
Certificate Owners of the Regulation S Temporary Global Certificate. Upon notice
of the occurrence of any of the events described in the preceding sentence, the
Certificate Registrar shall notify the Depository and request the Depository to
notify all Certificate Owners, through the applicable Participants, of the
occurrence of the event and of the availability of Definitive Certificates to
such Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of the Global
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Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Certificate Registrar shall
execute, and the Authenticating Agent shall authenticate and deliver, the
Definitive Certificates. None of the Depositor, the Trustee, the Certificate
Registrar, the Paying Agent or the Fiscal Agent shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable with respect to
such Definitive Certificates, and the Certificate Registrar, the Trustee and the
Paying Agent shall recognize the Holders of Definitive Certificates as
Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made by the Master
Servicer and, if the Master Servicer does not make such Advances, by the
Trustee, and if the Trustee does not make such Advances, by the Fiscal Agent
except to the extent that the Master Servicer, the Trustee or the Fiscal Agent,
as applicable, determines in accordance with Section 4.4 below, that any such
Advance would be a Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) On or prior to the Advance Report Date, the Master Servicer
shall notify the Trustee and the Paying Agent if the P&I Advance Amount for such
Distribution Date is greater than zero, and the Master Servicer shall make a P&I
Advance of such amount no later than the Master Servicer Remittance Date. It is
understood that the obligation of the Master Servicer to make such P&I Advances
is mandatory and shall apply through any court appointed stay period or similar
payment delay resulting from any insolvency of the Mortgagor or related
bankruptcy, notwithstanding any other provision of this Agreement.
Notwithstanding the foregoing, the Master Servicer shall not be required to make
such P&I Advance, if the Master Servicer determines, in accordance with Section
4.4 below, that any such P&I Advance would be a Nonrecoverable Advance. Such
determination shall be conclusive and binding on the Trustee, the Fiscal Agent
and the Certificateholders. The Special Servicer shall not be required to make
P&I Advances under this Agreement.
(b) If the Master Servicer determines that there is a P&I Advance
Amount for a Distribution Date, the Master Servicer shall on the Master Servicer
Remittance Date either (A) deposit in the Certificate Account an amount equal to
the P&I Advance Amount or (B) utilize funds in the Certificate Account being
held for future distributions or withdrawals to make such Advance. Any funds
being held in the Certificate Account for future distribution or withdrawal and
so used shall be replaced by the Master Servicer from its own funds by deposit
in the Certificate Account on or before any future Master Servicer Remittance
Date to the extent
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that funds in the Certificate Account on such Master Servicer Remittance Date
shall be less than payments to the Trustee or other Persons required to be made
on such date.
SECTION 4.2 SERVICING ADVANCES. The Master Servicer and, if the
Master Servicer does not, the Trustee to the extent the Trustee receives notice
from the Paying Agent that such advance has not been made by the Master
Servicer, and if the Trustee does not, the Fiscal Agent shall make Servicing
Advances to the extent provided in this Agreement, except to the extent that the
Master Servicer, the Trustee or the Fiscal Agent, as applicable, determines in
accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance. Such determination by the Master Servicer shall be
conclusive and binding on the Trustee, the Fiscal Agent and the
Certificateholders. The Special Servicer shall not be required to make Servicing
Advances under this Agreement. Promptly after discovering that the Master
Servicer has failed to make a Servicing Advance, the Paying Agent shall notify
the Trustee of the failure by the Master Servicer to make such Servicing
Advance.
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT.
(a) To the extent that the Master Servicer fails to make a P&I
Advance by the Master Servicer Remittance Date (other than a P&I Advance that
the Master Servicer determines is a Nonrecoverable Advance), the Trustee shall
make such P&I Advance to the extent the Trustee receives notice from the Paying
Agent not later than 10:00 a.m. (New York City time) on the Distribution Date
that such advance has not been made by the Master Servicer on the Master
Servicer Remittance Date unless the Trustee determines that such P&I Advance, if
made, would be a Nonrecoverable Advance. To the extent that the Trustee is
required hereunder to make P&I Advances, it shall deposit the amount thereof in
the Distribution Account by 1:00 p.m. (New York City time) on such Distribution
Date. The Paying Agent shall notify the Trustee as soon as practicable, but not
later than 10:00 a.m. (New York City time) on the Distribution Date if the
Master Servicer has failed to make a P&I Advance.
(b) To the extent that the Trustee fails to make a P&I Advance
required to be made by the Trustee hereunder on the Distribution Date (other
than a P&I Advance that the Master Servicer or the Trustee determines is a
Nonrecoverable Advance), the Fiscal Agent will advance such P&I Advance unless
the Fiscal Agent determines that any such P&I Advance, if made, would be a
Nonrecoverable Advance. To the extent that the Fiscal Agent is required
hereunder to make P&I Advances, it shall deposit the amount thereof in the
Distribution Account by 1:00 p.m. (New York City time) on each such Distribution
Date.
(c) To the extent that the Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that the Master Servicer determines is a Nonrecoverable
Advance), and a Responsible Officer of the Trustee receives notice thereof, the
Trustee shall make such Servicing Advance promptly, but in any event, not later
than five Business Days after notice thereof, unless the Trustee determines that
such Servicing Advance, if made, would be a Nonrecoverable Advance.
(d) To the extent that the Trustee fails to make a Servicing Advance
required to be made by the Trustee hereunder by the later of (i) the date such
Servicing Advance is required to be made and (ii) five Business Days after the
date the Trustee has received notice
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pursuant to subsection (c) above, that such Servicing Advance has not been made
by the Master Servicer (other than a Servicing Advance that the Master Servicer
or the Trustee has determined to be a Nonrecoverable Advance), the Fiscal Agent
will advance such Servicing Advance, unless the Fiscal Agent determines that
such Servicing Advance, if made, would be a Nonrecoverable Advance.
The initial Trustee's failure to make any Advance required to be
made by it hereunder shall not constitute a default by the initial Trustee
hereunder if the initial Fiscal Agent makes such Advance at or before the time
when the Trustee was required to make such Advance.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY. If the Master Servicer
determines at any time, in its sole discretion, exercised in good faith, that
any Advance previously made or proposed Advance, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate delivered to the Trustee and the Paying Agent, and the Special
Servicer by the Business Day prior to the Distribution Date. Such Officer's
Certificates shall set forth the reasons for such determination of
nonrecoverability, together with, to the extent such information, report or
document is in the Master Servicer's possession, any related financial
information such as related income and expense statements, rent rolls, occupancy
status, property inspections and any appraisals performed in accordance with MAI
standards within the last 12 months on the Mortgaged Property, and, if such
reports are used by the Master Servicer to determine that any P&I Advance or
Servicing Advance, as applicable, would be a Nonrecoverable Advance, any
engineers' reports, environmental surveys, internal final valuations or other
information relevant thereto which support such determination. If the Trustee or
the Fiscal Agent, as applicable, determines at any time that any portion of an
Advance previously made or a portion of a proposed Advance that the Trustee or
the Fiscal Agent, as applicable, is required to make pursuant to this Agreement,
if made, would constitute a Nonrecoverable Advance, such determination shall be
evidenced by an Officer's Certificate of a Responsible Officer of the Trustee or
the Fiscal Agent, as applicable, delivered to the Depositor, the Master
Servicer, the Paying Agent and the Special Servicer similar to the Officer's
Certificate of the Master Servicer described in the prior sentence. The Trustee
and the Fiscal Agent shall not be required to make an Advance that the Master
Servicer has previously determined to be a Nonrecoverable Advance.
Notwithstanding any other provision of this Agreement, none of the Master
Servicer, the Trustee or the Fiscal Agent shall be obligated to, nor shall it,
make any Advance or make any payment that is designated in this Agreement to be
an Advance, if it determines in its good faith judgment that such Advance or
such payment (including interest accrued thereon at the Advance Rate) would be a
Nonrecoverable Advance. The Master Servicer's determination in accordance with
the above provisions shall be conclusive and binding on the Trustee, the Fiscal
Agent and the Certificateholders.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING
ADVANCES WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from
the Master Servicer's, the Trustee's or the Fiscal Agent's own funds shall
accrue interest on a daily basis, at a per annum rate equal to the Advance Rate,
from the date such Advance was made until the date on which such Advance has
been reimbursed. For purposes of determining whether a P&I Advance is
outstanding, amounts collected with respect to a particular Mortgage Loan or REO
Property and treated as collections of principal or interest shall be applied
first to reimburse the earliest P&I Advance and then each succeeding P&I Advance
to the extent not inconsistent with
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Section 4.6. Except with respect to Specially Serviced Mortgage Loans, the
Master Servicer shall attempt to collect (but shall have no obligation to
collect) Late Fees in an amount sufficient to pay Advance Interest from the
Mortgagor. The Master Servicer shall be entitled to retain Late Fees paid by any
Mortgagor with respect to any Mortgage Loan (other than a Specially Serviced
Mortgage Loan, as to which the Special Servicer shall retain Late Fees) as
additional servicing compensation to the extent such Late Fees exceed Advance
Interest. The Special Servicer, with respect to any Specially Serviced Mortgage
Loan, shall (i) pay from any related Late Fees outstanding and unpaid Advance
Interest to the Master Servicer, the Trustee or the Fiscal Agent, as applicable,
and (ii) retain any remaining portion of such Late Fees as additional Special
Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan or Specially
Serviced Mortgage Loan or REO Property (including Advances later determined to
be Nonrecoverable Advances) shall be reimbursed to the extent of the amounts
identified to be applied therefor in Section 5.2. The aggregate of the amounts
available to repay Advances pursuant to Sections 5.2 collected in any Collection
Period with respect to Mortgage Loans or Specially Serviced Mortgage Loans or
REO Property shall be an "Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on Mortgage Loans,
Specially Serviced Mortgage Loans or REO Property, the Available Advance
Reimbursement Amount with respect to any Determination Date shall be applied to
reimburse (i) the Fiscal Agent for any Advances outstanding to the Fiscal Agent
with respect to any of such Mortgage Loans or Specially Serviced Mortgage Loans
or REO Property, plus any Advance Interest owed to the Fiscal Agent with respect
to such Advances and then (ii) the Trustee for any Advances outstanding to the
Trustee with respect to any of such Mortgage Loans or Specially Serviced
Mortgage Loans or REO Property, plus any Advance Interest owed to the Trustee
with respect to such Advances and then (iii) the Master Servicer for any
Advances outstanding to the Master Servicer with respect to any of such Mortgage
Loans, plus any Advance Interest owed to the Master Servicer with respect to
such Advances. To the extent that any Advance Interest payable to the Master
Servicer, the Trustee or the Fiscal Agent with respect to a Specially Serviced
Mortgage Loan or REO Property cannot be recovered from the related Mortgagor,
the amount of such Advance Interest shall be treated as a Servicing Advance and
shall be payable to the Fiscal Agent, the Trustee or the Master Servicer, as the
case may be, from amounts on deposit in the Certificate Account or the
Distribution Account pursuant to Section 5.2(a) or Section 5.3(b)(ii). The
Master Servicer's, the Fiscal Agent's and the Trustee's right of reimbursement
under this Agreement for Advances shall be prior to the rights of the
Certificateholders to receive any amounts recovered with respect to such
Mortgage Loans or REO Properties.
(c) Amounts applied to reimburse Advances shall first be applied to
reduce Advance Interest thereon and then to reduce the outstanding amount of
such Advances.
(d) To the extent that the Special Servicer incurs out-of-pocket
expenses, in accordance with the Servicing Standard, in connection with
servicing Specially Serviced Mortgage Loans, the Master Servicer shall reimburse
the Special Servicer for such expenditures within 30 days after receiving an
invoice and a report from the Special Servicer, subject to
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Section 4.4. With respect to each Collection Period, the Special Servicer shall
deliver such invoice and report to the Master Servicer by the following
Determination Date. All such amounts reimbursed by the Master Servicer shall be
a Servicing Advance. In the event that the Master Servicer defaults under its
obligation to reimburse the Special Servicer hereunder or the Master Servicer
determines that such Servicing Advance, if made, would be a Nonrecoverable
Advance, the Special Servicer shall notify the Master Servicer and the Paying
Agent in writing of such nonpayment and the amount payable to the Special
Servicer and shall be entitled to receive reimbursement from the Trust as an
Additional Trust Expense. The Master Servicer, the Paying Agent and the Trustee
shall have no obligation to verify the amount payable to the Special Servicer
pursuant to this Section 4.6(d) and circumstances surrounding the notice
delivered by the Special Servicer pursuant to this Section 4.6(d).
SECTION 4.7 FISCAL AGENT TERMINATION EVENT. "Fiscal Agent
Termination Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the Trustee
when due any required Advances; or
(ii) 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 Fiscal Agent and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(iii) The Fiscal Agent 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 or relating to the Fiscal Agent or
relating to all or substantially all of its property; or
(iv) The Fiscal Agent 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
(v) Any Rating Agency shall indicate its intent to reduce,
qualify or withdraw, as applicable, the outstanding rating of any Class of
Certificates because the prospective financial condition or capacity to
make Advances of the Fiscal Agent is insufficient to maintain such rating;
or
(vi) The long-term unsecured debt of the Fiscal Agent is rated
below "Aa2" by Xxxxx'x.
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SECTION 4.8 PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of termination given
to the Fiscal Agent pursuant to Section 7.6(c), all authority, power and rights
of the Fiscal Agent under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall terminate and a successor Fiscal Agent, if necessary,
shall be appointed by the Trustee, with the consent of the Depositor; provided
that Rating Agency Confirmation is obtained with respect to the appointment of
such successor Fiscal Agent, and in no event shall the termination of the Fiscal
Agent be effective until Rating Agency Confirmation shall have been obtained
with respect to a successor fiscal agent. The Fiscal Agent agrees to cooperate
with the Trustee in effecting the termination of the Fiscal Agent's
responsibilities and rights hereunder as Fiscal Agent.
(b) Notwithstanding the termination of its activities as Fiscal
Agent, the terminated Fiscal Agent shall continue to be entitled to
reimbursement to the extent provided in Section 4.6 but only to the extent such
reimbursement relates to the period up to and including the date on which the
Fiscal Agent's termination is effective. The Fiscal Agent shall be reimbursed
for all amounts owed to it hereunder on or prior to the effective date of its
termination from amounts on deposit in the Certificate Account.
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT. Any Person into
which the Fiscal Agent may be merged or consolidated, or any Person resulting
from any merger, conversion, other change in form or consolidation to which the
Fiscal Agent shall be a party, or any Person succeeding to the business of the
Fiscal Agent, shall be the successor of the Fiscal Agent 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
(i) the successor to the Fiscal Agent or resulting Person shall have a net worth
of not less than $100,000,000, (ii) such successor or resulting Person shall be
satisfactory to the Trustee, (iii) such successor or resulting Person shall
execute and deliver to the Trustee an agreement, in form and substance
satisfactory to the Trustee, which contains an assumption by such Person of the
due and punctual performance and observance of each covenant and condition to be
performed or observed by the Fiscal Agent under this Agreement from and after
the date of such agreement, (iv) the Rating Agencies shall be given prior
written notice of the identity of the proposed successor or resulting Person and
the Rating Agencies shall have provided Rating Agency Confirmation, and (v) the
Fiscal Agent shall deliver to the Trustee an Officer's Certificate and an
Opinion of Counsel acceptable to the Trustee (which opinion shall be at the
expense of the Fiscal Agent) stating that all conditions precedent to such
action under this Section 4.9 have been completed and such action is permitted
by and complies with the terms of this Section 4.9.
SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND OTHERS.
Neither the Fiscal Agent nor any of the directors, officers, employees, agents
or Controlling Persons of the Fiscal Agent shall be under any liability to the
Certificateholders, the Depositor or the Trustee for any action taken or for
refraining from the taking of any action in good faith, and using reasonable
business judgment pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Fiscal Agent or any such
Person against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
this Agreement. The Fiscal Agent and any
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director, officer, employee or agent of the Fiscal Agent may rely in good faith
on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Fiscal Agent shall not be
under any obligation to appear in, prosecute or defend any legal action which is
not incidental to its obligations under this Agreement. In such event, all legal
expenses and costs of such action shall be expenses and costs of the Trust, and
the Fiscal Agent shall be entitled to be reimbursed therefor as Servicing
Advances as provided by this Agreement. The provisions of this Section 4.10
shall survive the resignation or removal of the Fiscal Agent and the termination
of this Agreement.
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT. The Fiscal Agent and
each of its directors, officers, employees, agents and Controlling Persons shall
be indemnified by the Trust and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action relating to this Agreement other than any loss, liability or
expense incurred by reason of the Fiscal Agent's willful misfeasance, bad faith
or negligence in the performance of duties hereunder. The Depositor shall
indemnify and hold harmless the Fiscal Agent, its directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person may become subject under the 1933 Act, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum or in the Preliminary Prospectus Supplement and
Final Prospectus Supplement or arises out of, or is based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made, not misleading and shall reimburse the Fiscal Agent, its
directors, officers, employees, agents or Controlling Person for any legal and
other expenses reasonably incurred by the Fiscal Agent or any such director,
officer, employee, agent or Controlling Person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action.
The Fiscal Agent shall immediately notify the Depositor, the Master Servicer,
the Paying Agent and the Trustee if a claim is made by a third party with
respect to this Section 4.11 entitling the Fiscal Agent, its directors,
officers, employees, agents or Controlling Person to indemnification hereunder,
whereupon the Depositor shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Fiscal Agent) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Depositor shall not affect any rights the
Fiscal Agent, its directors, officers, employees, agents or Controlling Person
may have to indemnification under this Section 4.11, unless the Depositor's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or removal of the Fiscal Agent.
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ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the Master Servicer shall open,
or cause to be opened, and shall thereafter maintain, or cause to be maintained,
a separate account or accounts, which accounts must be Eligible Accounts, in the
name of "Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle
National Bank, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1999-WF1" (the
"Certificate Account"). On or prior to the Closing Date, the Master Servicer
shall open, or cause to be opened, and shall maintain, or cause to be maintained
an additional separate account or accounts in the name of "Xxxxx Fargo Bank,
National Association, as Master Servicer for LaSalle National Bank, as Trustee
for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1" (the "Interest Reserve Account").
(b) On or prior to the date the Master Servicer shall first deposit
funds in a Certificate Account or the Interest Reserve Account, as the case may
be, the Master Servicer shall give to the Paying Agent and the Trustee prior
written notice of the name and address of the depository institution(s) at which
such accounts are maintained and the account number of such accounts. The Master
Servicer shall take such actions as are necessary to cause the depository
institution holding the Certificate Account and the Interest Reserve Account to
hold such account in the name of the Master Servicer as provided in Section
5.1(a), subject to the Master Servicer's (or its Sub-Servicer's) right to direct
payments and investments and its rights of withdrawal under this Agreement.
(c) The Master Servicer shall deposit, or cause to be deposited,
into the Certificate Account on the Business Day following receipt (or, in the
case of unscheduled remittances of principal or interest, on the Business Day
following identification of the proper application of such amounts), the
following amounts received by it (including amounts remitted to the Master
Servicer by the Special Servicer from an REO Account pursuant to Section 9.14 or
as Compensating Interest pursuant to Section 9.11), other than in respect of
interest and principal on the Mortgage Loans due on or before the Cut-Off Date
which shall be remitted to the Depositor (provided that the Master Servicer may
retain amounts otherwise payable to the Master Servicer as provided in Section
5.2(a) rather than deposit them into the Certificate Account):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled
Payments, and any Late Collections in respect thereof on the
Mortgage Loans;
(B) Interest: subject to subsection (d) hereof, all payments on
account of interest, including Compensating Interest paid by the
Special Servicer pursuant to Section 9.11, (minus any portion of any
such payment that is allocable to the period prior to the Cut-Off
Date which shall be remitted to the Depositor and
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excluding Interest Reserve Amounts to be deposited in the Interest
Reserve Account pursuant to Section 5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with respect to
the Mortgage Loans;
(D) Insurance Proceeds: all insurance proceeds other than proceeds
to be applied to the restoration or repair of the property subject
to the related Mortgage or released to the related Mortgagor in
accordance with the Servicing Standard, which proceeds shall be
deposited by the Master Servicer into an Escrow Account and not
deposited in the Certificate Account;
(E) Condemnation Proceeds: all condemnation proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by the Master Servicer into an Escrow Account and not
deposited in the Certificate Account;
(F) REO Income: all REO Income received from the Special Servicer;
(G) Investment Losses: any amounts required to be deposited by the
Master Servicer pursuant to Section 5.1(e) in connection with losses
realized on Eligible Investments with respect to funds held in the
Certificate Account;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account; and
(I) Other: all other amounts, including Prepayment Premiums,
required to deposited in the Certificate Account pursuant to this
Agreement, including Purchase Proceeds of any Mortgage Loans
repurchased by a Seller or substitution shortfall amounts (as
described in the fifth paragraph of Section 2.3(a)) paid by a Seller
in connection with the substitution of any Qualifying Substitute
Mortgage Loans.
Remittances from any REO Account to the Master Servicer for deposit
in the Certificate Account shall be made by the Special Servicer no later than
the Special Servicer Remittance Date.
(d) The Master Servicer, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year,
shall deposit in the Interest Reserve Account in respect of each Interest
Reserve Loan, an amount equal to one day's interest at the related REMIC I Net
Mortgage Rate on the Scheduled Principal Balance of such Mortgage Loan as of the
Due Date in the month in which such Distribution Date occurs, to the extent a
Scheduled Payment or P&I Advance is timely made in respect thereof for such Due
Date (all amounts so deposited in any consecutive January and February in
respect of each Interest Reserve Loan, the "Interest Reserve Amount").
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(e) Funds in the Certificate Account and Interest Reserve Account
may be invested and, if invested, shall be invested by, and at the risk of, the
Master Servicer in Eligible Investments selected by the Master Servicer which
shall mature, unless payable on demand, not later than the Business Day
immediately preceding the next Master Servicer Remittance Date, and any such
Eligible Investment shall not be sold or disposed of prior to its maturity
unless payable on demand. All such Eligible Investments shall be made in the
name of "LaSalle National Bank, as Trustee for the Holders of the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-WF1."
None of the Depositor, the Mortgagors, the Paying Agent or the Trustee shall be
liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Master Servicer as additional servicing
compensation and shall be subject to its withdrawal at any time from time to
time. The amount of any losses incurred in respect of any such investments shall
be for the account of the Master Servicer which shall deposit the amount of such
loss (to the extent not offset by income from other investments) deposited in
the Certificate Account or Interest Reserve Account, as the case may be, out of
its own funds immediately as realized. If the Master Servicer deposits in any
Certificate Account or Interest Reserve Account, as the case may be, any amount
not required to be deposited therein, it may at any time withdraw such amount
from the Certificate Account or Interest Reserve Account, as the case may be,
any provision herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if the Master Servicer shall have deposited
in the Certificate Account and Interest Reserve Account an amount equal to all
amounts due under any such Eligible Investment (net of anticipated income or
earnings thereon that would have been payable to the Master Servicer as
additional servicing compensation) the Master Servicer shall have the sole right
to enforce such payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the Master Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Master Servicer shall deal with
these amounts in accordance with the Servicing Standard and the terms of the
related Mortgage Loans.
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT AND
INTEREST RESERVE ACCOUNT.
(a) The Master Servicer shall, from time to time, make withdrawals
from the Certificate Account and remit them by wire transfer on the related
Master Servicer Remittance Date in immediately available funds to the account
specified in this Section or otherwise (w) to such account as it shall determine
from time to time of amounts payable to the Master Servicer from the Certificate
Account pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and (ix) below;
(x) to the account specified in writing by the Paying Agent from time to time of
amounts payable
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to the Paying Agent and the Trustee from the Certificate Account pursuant to
clauses (ii), (iii), (v), (vi) and (xi), (xii) and (xiii) below; and (y) to the
Special Servicer from time to time of amounts payable to the Special Servicer
from such Certificate Account pursuant to clauses (i), (iv), (vi), and (vii)
below of the following amounts, from the amounts specified for the following
purposes:
(i) Fees: the Master Servicer shall pay (A) to itself Late Fees (in
excess of Advance Interest) relating to Mortgage Loans which are not
Specially Serviced Mortgage Loans, Modification Fees relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans as
provided in Section 8.18, 50% of any assumption fees payable under
Section 8.7(a), 100% of any extension fees payable under Section
8.10 or other fees payable to the Master Servicer hereunder and (B)
directly to the Special Servicer, 50% of any assumption fees as
provided in Section 8.7(a), 100% of any assumption fees as provided
in Section 8.7(b), all assumption fees relating to Specially
Serviced Mortgage Loans and Late Fees (in excess of Advance Interest
which the Master Servicer shall retain), Modification Fees and other
fees collected on Specially Serviced Mortgage Loans, in each case
from funds paid by the applicable Mortgagor to the extent provided
for herein;
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): to apply, pursuant to Section 4.6, (x)
prior to a Final Recovery Determination or determination in
accordance with Section 4.4 that any Advance is a Nonrecoverable
Advance, payments made by the Mortgagor of the amounts to which a
Servicing Advance relates or from REO Income from the related REO
Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds or (y) after a Final
Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, any funds on deposit in the Certificate
Account (regardless of whether such amount was recovered from the
applicable Mortgage Loan or REO Property), to reimburse the Fiscal
Agent, the Trustee and itself, in that order, as provided in, and
subject to, Article IV hereof, for any Servicing Advances (and
Advance Interest thereon) made with respect to a Mortgage Loan or
REO Property and not previously reimbursed;
(iii) P&I Advances (including amounts later to be determined to be
Nonrecoverable Advances): to apply pursuant to Section 4.6, (x)
prior to a Final Recovery Determination or determination that any
Advance is a Nonrecoverable Advance, payments made by the Mortgagor
of the amounts to which a P&I Advance relates, or REO Income from
the related REO Property or from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or Purchase Proceeds or (y) after a
Final Recovery Determination or determination in accordance with
Section 4.4 that any Advance is a Nonrecoverable Advance, for any
Mortgage Loan, any funds on deposit in the Certificate Account
(regardless of whether such amount
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was recovered from the applicable Mortgage Loan or REO Property), to
reimburse the Fiscal Agent, the Trustee and itself, in that order,
in accordance with Article IV hereof, for any P&I Advances (and
Advance Interest thereon) previously made by it with respect to the
related Mortgage Loan or REO Property and not previously reimbursed;
(iv) Servicing Fee and Special Servicer Compensation: to pay to
itself the Servicing Fee (to the extent not previously retained by
the Master Servicer), to pay to the Special Servicer the Special
Servicing Fee, in each case, subject to reduction for any
Compensating Interest;
(v) Trustee Fee and Paying Agent Fee: to pay to the Distribution
Account for withdrawal by the Paying Agent the Trustee's Fee and the
Paying Agent Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses (at the
time set forth herein or in the definition thereof), the payment of
which is not more specifically provided for in this Agreement;
provided that the Depositor shall not be entitled to receive
reimbursement for performing its duties under this Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final Recovery
Determination to pay to the Special Servicer from the Certificate
Account, the amount certified by the Special Servicer equal to the
Liquidation Fee, to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain realized
on the investment of funds deposited in such Certificate Account
relating to the Trust;
(ix) Prepayment Interest Excesses: to pay to the Master Servicer the
amount of the aggregate Prepayment Interest Excesses relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans (to
the extent not offset by Prepayment Interest Shortfalls relating to
such Mortgage Loans); and to pay to the Special Servicer the amount
of the aggregate Prepayment Interest Excesses relating to Specially
Serviced Mortgage Loans which have received voluntary Principal
Prepayments (not from Liquidation Proceeds or from modifications to
Specially Serviced Mortgage Loans), to the extent not offset by
Prepayment Interest Shortfalls relating to such Mortgage Loans.
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Account in error;
(xi) Distribution Account: to make payment on each Master Servicer
Remittance Date to the Distribution Account of the remaining amounts
in the Certificate Account (including any Excess Interest) other
than amounts
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held for payment in future periods or pursuant to clauses (xii) and
(xiii) below;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation
Proceeds; and
(xiii) Clear and Terminate: to clear and terminate the Certificate
Account pursuant to Section 8.29.
The Master Servicer shall keep and maintain a separate accounting
for each Mortgage Loan for the purpose of justifying any withdrawal from the
Certificate Account.
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Prepayments
received after the related Collection Period, or other amounts not distributable
on the related Distribution Date, shall be held in the Certificate Account and
shall be distributed on the Master Servicer Remittance Date or Dates to which
such succeeding Collection Period or Periods relate.
(c) On each Master Servicer Remittance Date in March of every year
commencing in March 2000, the Master Servicer shall withdrawal all amounts then
in the Interest Reserve Account and deposit such amounts into the to the
Distribution Account.
SECTION 5.3 DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT.
(a) The Paying Agent, on behalf of the Trustee, shall establish, on
or prior to the Closing Date, and maintain in the name of the Trustee, (i) an
account (the "Distribution Account"), to be held in trust for the benefit of the
Holders until disbursed pursuant to the terms of this Agreement, titled:
"LaSalle National Bank, as Trustee, in trust for the benefit of the Holders of
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 1999-WF1, Distribution Account" and (ii) an account (the "Reserve
Account") to be held in trust for the benefit of the holders of interests in the
Trust until disbursed pursuant to the terms of this Agreement, titled: "LaSalle
National Bank, as Trustee, in trust for the benefit of the Holders of Xxxxxx
Xxxxxxx Capital I, Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-WF1, Reserve Account." The Distribution Account and the Reserve Account
shall be Eligible Accounts. Funds in the Distribution Account and in the Reserve
Account shall not be invested. The Distribution Account and Reserve Account
shall be held separate and apart from and shall not be commingled with any other
monies including, without limitation, other monies of the Paying Agent held
under this Agreement.
(b) The Paying Agent shall deposit into the Distribution Account or
the Reserve Account, as applicable, on the Business Day received all moneys
remitted by the Master Servicer pursuant to this Agreement, including P&I
Advances made by the Master Servicer, the Trustee and the Fiscal Agent and all
Excess Liquidation Proceeds. On any Master Servicer Remittance Date, the Master
Servicer shall have no duty to remit to the Distribution Account any amounts
other than amounts held in the Certificate Account and collected during the
related Collection Period as provided in clauses (v) and (xi) of Section 5.2 and
the P&I Advance Amount, and, on the Master Servicer Remittance Date occurring in
March of any year,
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commencing in March 2000, amounts held in the Interest Reserve Account. The
Paying Agent shall make withdrawals from the Distribution Account and the
Reserve Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master Servicer, the Special
Servicer, the Trustee (including the Trustee's Fee (other than that
portion thereof that constitutes the Paying Agent's Fee)) and the Paying
Agent (including the Paying Agent's Fee), or other expenses or other
amounts permitted to be paid hereunder and not previously paid to such
Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders pursuant to
Section 6.4; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
SECTION 5.4 PAYING AGENT REPORTS.
(a) Based solely on (and to the extent of the information contained
in) the Master Servicer Remittance Report provided to the Paying Agent by the
Master Servicer (no later than the Report Date), on each Distribution Date, the
Paying Agent shall be required to provide or make available either
electronically or by first class mail (or such other medium as the Depositor
shall reasonably request, the incremental cost of which shall be paid in advance
by the recipient thereof), to each Certificateholder, the Trustee, the Rating
Agencies, the Master Servicer, the Special Servicer, each Placement Agent, each
Underwriter, the Depositor and anyone the Depositor, the Placement Agent or any
Underwriter reasonably designates (i) a Monthly Certificateholders Report
(substantially in the form of Exhibit M) and (ii) a report containing
information regarding the Mortgage Loans as of the end of the related Collection
Period, which report shall contain substantially the categories of information
regarding the Mortgage Loans set forth in Appendix I to the Prospectus
Supplement and shall be presented in tabular format substantially similar to the
format utilized in such Appendix I. The Paying Agent shall be entitled to
conclusively rely on any such information provided to it by the Master Servicer
or the Special Servicer and shall have no obligation to verify any such
information and the Paying Agent may disclaim responsibility for any information
distributed by the Paying Agent for which it is not the original source.
Upon written request, the Paying Agent shall send the reports
described in the preceding paragraph to any Certificate Owner or
Certificateholder by first class mail at no cost to such Certificate Owner or
Certificateholder. In addition, the Paying Agent shall make the reports
described in the preceding paragraph available through its website, initially
located at xxx.xxxxxxx.xxx/xxxx (the "Paying Agent's Website"), electronic
bulletin board and its fax-on demand service. The Paying Agent's electronic
bulletin board may be initially accessed by calling (000) 000-0000, and the
Paying Agent's fax-on-demand service may be initially accessed by calling (301)
815-6610. For assistance with the above-mentioned Paying Agent services,
Certificateholders or any party hereto may initially call (000) 000-0000. In
addition, the Paying Agent may also make Mortgage Loan information as presented
in the "CSSA" loan setup file
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format, the "CSSA" loan periodic update file format, the Special Servicer
Monthly Report and the Annual Report available each month to any
Certificateholder, any Certificate Owner, the Rating Agencies or any other
interested party via the Paying Agent's Website or, if requested by a
Certificateholder or Certificate Owner in writing, by first class mail. In
addition, the Paying Agent will make available, as a convenience for interested
parties (and not in the furtherance of the distribution of the Prospectus or the
Final Prospectus Supplement under the securities laws) this Agreement, the
Prospectus and Final Prospectus Supplement via the Paying Agent's Website. The
Paying Agent shall not be deemed to have made any representations or warranties
as to the accuracy or completeness of such documents and will assume no
responsibility therefor. In addition, the Paying Agent may disclaim
responsibility for any information distributed by it of which information the
Paying Agent is not the original source. In connection with providing access to
the Paying Agent's Website or electronic bulletin board, the Paying Agent may
require registration and the acceptance of a disclaimer. The Paying Agent shall
not be liable for the dissemination of information in accordance with this
Agreement; provided that this sentence shall not in any way limit the liability
the Paying Agent may otherwise have in performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if required
by federal regulation, of any Certificateholder that is a savings association,
bank, or insurance company, the Paying Agent shall provide (to the extent in its
possession) to each such Certificateholder such reports and access to
non-privileged information and documentation regarding the Mortgage Loans and
the Certificates as such Certificateholder may reasonably deem necessary to
comply with applicable regulations of the Office of Thrift Supervision or
successor or other regulatory authorities with respect to investment in the
Certificates; provided that the Paying Agent shall be entitled to be reimbursed
by such Certificateholder for the Paying Agent's actual expenses incurred in
providing such reports and access.
(c) Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall send to each Person who at any time during the
calendar year was a Certificateholder of record, a report summarizing the items
(in clauses (i), (ii) and (iii) of the definition of Monthly Certificateholders
Report) provided to Certificateholders pursuant to this Section 5.4 on an annual
basis and such other customary information as the Paying Agent xxxxx xxx be
necessary or desirable for such Holders to prepare their federal income tax
returns.
(d) On each Distribution Date, the Paying Agent shall provide to the
Placement Agents, the Underwriters, the Rating Agencies, the Depositor, the
Operating Adviser, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, anyone the Depositor or either Placement Agent or Underwriter
reasonably designates, and upon request to any Certificateholder, Certificate
Owner (as identified by such Certificate Owner) or prospective Certificate Owner
(as identified to the Paying Agent by any existing Certificateholder or
Certificate Owner), a report substantially in the form of Exhibit Q (which may
be delivered in an electronic medium as the Paying Agent may determine from time
to time) with the information contained therein updated to the date of such
report.
(e) The Paying Agent shall afford the Rating Agencies, the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, the
Operating Adviser, any Certificateholder, prospective Certificate Owner or any
Person reasonably designated by either
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Placement Agent, or any Underwriter upon reasonable notice and during normal
business hours, reasonable access to all relevant, non-attorney privileged
records and documentation regarding the applicable Mortgage Loans, REO Property
and all other relevant matters relating to this Agreement, and access to
Responsible Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Paying Agent upon request; provided, however, that the Paying Agent shall
be permitted to require payment by the requesting party (other than the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent either Placement Agent or any Underwriter or any Rating Agency) of a sum
sufficient to cover the reasonable expenses actually incurred by the Paying
Agent of providing access or copies (including electronic or digital copies) of
any such information requested in accordance with the preceding sentence.
SECTION 5.5 PAYING AGENT TAX REPORTS. The Paying Agent shall perform
all reporting and other tax compliance duties that are the responsibility of
each REMIC Pool under the Code, REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Consistent with this Pooling and Servicing Agreement, the Paying Agent shall
provide or cause to be provided (i) to the United States Treasury or other
Persons (including, but not limited to, the transferor of a Class R-I, Class
R-II or Class R-III Certificate, to a Disqualified Organization or to an agent
that has acquired a Class R-I, Class R-II or Class R-III Certificate on behalf
of a Disqualified Organization) such information as is necessary for the
application of any tax relating to the transfer of a Class R-I, Class R-II or
Class R-III Certificate to any Disqualified Organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions. The Master Servicer shall on a timely basis provide the Paying
Agent with such information concerning the Mortgage Loans as is necessary for
the preparation of the tax or information returns or receipts of each REMIC Pool
as the Paying Agent may reasonably request from time to time. The Special
Servicer is required to provide to the Master Servicer all information in its
possession with respect to the Specially Serviced Mortgage Loans in order for
the Master Servicer to comply with its obligations under this Section 5.5. The
Paying Agent shall be entitled to conclusively rely on any such information
provided to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify any such information.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section 10.2(a),
respecting the final distribution on the Certificates, on each Distribution
Date, the Paying Agent shall (1) first, withdraw from the Distribution Account
and pay to the Trustee and the Fiscal Agent any unpaid fees, expenses and other
amounts then required to be paid pursuant to this Agreement, and then, to the
Paying Agent, any unpaid fees, expenses and other amounts then required to be
paid pursuant to this Agreement, and then at the written direction of the Master
Servicer, withdraw from the Distribution Account and pay to the Master Servicer
and Special Servicer any unpaid servicing compensation or other amounts
currently required to be paid pursuant to this
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Agreement (to the extent not previously withdrawn by the Master Servicer from
the Certificate Account), and (2) second, make distributions in the manner and
amounts set forth below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Paying Agent no later than
five days after the related Record Date (or upon standing instructions given to
the Paying Agent on the Closing Date or within five days after any Record Date,
which instructions may be revoked at any time thereafter upon written notice to
the Paying Agent five days after the related Record Date) made by a
Certificateholder by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder; provided, that (i)
remittances to the Paying Agent shall be made by wire transfer of immediately
available funds to the Distribution Account and the Reserve Account; and (ii)
the final distribution in respect of any Certificate shall be made only upon
presentation and surrender of such Certificate at such location specified by the
Paying Agent in a notice delivered to Certificateholders pursuant to Section
10.2(a). If any payment required to be made on the Certificates is to be made on
a day that is not a Business Day, then such payment will be made on the next
succeeding Business Day without compensation for such delay. All distributions
or allocations made with respect to Holders of Certificates of a Class on each
Distribution Date shall be made or allocated among the outstanding Interests in
such Class in proportion to their respective initial Certificate Balances or
Percentage Interests for the Class X Certificates.
SECTION 6.2 REMIC I.
(a) On each Distribution Date, the Paying Agent on behalf of the
Trustee shall be deemed to distribute to the Trustee, as holder of the REMIC I
Regular Interests, for the following purposes and in the following order of
priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect to
each Mortgage Loan or REO Property, Distributable Certificate Interest to each
Corresponding REMIC I Regular Interest and Excess Interest to the REMIC I Excess
Interests;
(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect to
each Mortgage Loan or REO Property, principal to the Corresponding REMIC I
Regular Interest, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining funds, to reimburse any Realized Losses
previously allocated to the REMIC I Regular Interests, plus interest on such
Realized Losses previously allocated thereto, compounded monthly at the
applicable Pass-Through Rates; and
(iv) thereafter, to the Class R-I Certificateholders.
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SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Paying Agent on behalf of the
Trustee shall be deemed to distribute to the Trustee, as holder of the REMIC II
Regular Interests, for the following purposes and in the following order of
priority:
(i) an amount equal to Distributable Certificate Interest for
the Class A-1 Certificates, Class A-2 Certificates and Class X Certificates to
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest B, REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II
Regular Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G,
REMIC II Regular Interest H, REMIC II Regular Interest J, REMIC II Regular
Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II
Regular Interest N and REMIC II Regular Interest O, divided among such REMIC II
Regular Interests in proportion to (A) in the case of the REMIC II Regular
Interest A-1 and REMIC II Regular Interest A-2, the Accrued Certificate Interest
for such Distribution Date and (B) in the case of REMIC II Regular Interest B,
REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K,
REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II Regular
Interest N and REMIC II Regular Interest O, the product of one-twelfth of the
Certificate Balance of such Interest and the sum of the related Class X Strip
Rate (if any);
(ii) to the REMIC II Regular Interest A-1, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
the REMIC II Regular Interest A-1 has been reduced to zero;
(iii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest A-1, to the REMIC II Regular Interest A-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1), until
the Certificate Balance of the REMIC II Regular Interest A-2 has been reduced to
zero;
(iv) to REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC Regular Interest
J, REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular
Interest M, REMIC II Regular Interest N and REMIC II Regular Interest O, pro
rata on the basis of their respective entitlements to reimbursement described in
this clause (iv), to reimburse any Realized Losses previously allocated to REMIC
II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest B, REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II
Regular Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G,
REMIC II Regular Interest H, REMIC II Regular Interest J, REMIC II Regular
Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II
Regular Interest N and REMIC II Regular Interest O as a result of the allocation
of Realized Losses to the Class X Certificates plus interest on such Realized
Losses compounded monthly at one-twelfth of the applicable Pass-Through Rate;
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(v) to the REMIC II Regular Interest B, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(vi) upon payment in full of the Certificate Balances of the
REMIC II Regular Interest A-2 and REMIC II Regular Interest A-2, to the REMIC II
Regular Interest B, the Principal Distribution Amount for such Distribution Date
(reduced by any portion thereof deemed to be distributed to the REMIC II Regular
Interest A-1 and REMIC II Regular Interest A-2), until the Certificate Balance
of the REMIC II Regular Interest B has been reduced to zero;
(vii) to the REMIC II Regular Interest B, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(viii) to the REMIC II Regular Interest C, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(ix) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest B, to the REMIC II Regular Interest C, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, and REMIC II Regular Interest B), until the Certificate Balance of
the REMIC II Regular Interest C has been reduced to zero;
(x) to the REMIC II Regular Interest C, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xi) to the REMIC II Regular Interest D, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest C, to the REMIC II Regular Interest D, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B and REMIC II Regular Interest C),
until the Certificate Balance of the REMIC II Regular Interest D has been
reduced to zero;
(xiii) to the REMIC II Regular Interest D, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xiv) to the REMIC II Regular Interest E, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
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(xv) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest D, to the REMIC II Regular Interest E, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C and REMIC II
Regular Interest D), until the Certificate Balance of the REMIC II Regular
Interest E has been reduced to zero;
(xvi) to the REMIC II Regular Interest E, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xvii) to the REMIC II Regular Interest F, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xviii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest E, to the REMIC II Regular Interest F, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D and REMIC II Regular Interest E), until the Certificate
Balance of the REMIC II Regular Interest F has been reduced to zero;
(xix) to the REMIC II Regular Interest F, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xx) to the REMIC II Regular Interest G, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xxi) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest F, to the REMIC II Regular Interest G, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E and REMIC II Regular Interest
F), until the Certificate Balance of the REMIC II Regular Interest G has been
reduced to zero;
(xxii) to the REMIC II Regular Interest G, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xxiii) to the REMIC II Regular Interest H, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxiv) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest G, to the REMIC II Regular Interest H, the Principal
Distribution Amount for
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such Distribution Date (reduced by any portion thereof deemed to be distributed
to the REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II
Regular Interest B, REMIC Regular Interest C, REMIC II Regular Interest D, REMIC
II Regular Interest E, REMIC II Regular Interest F and REMIC II Regular Interest
G), until the Certificate Balance of the REMIC II Regular Interest H has been
reduced to zero;
(xxv) to the REMIC II Regular Interest H, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xxvi) to the REMIC II Regular Interest J, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxvii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest H, to the REMIC II Regular Interest J, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G and REMIC II Regular Interest H), until the
Certificate Balance of the REMIC II Regular Interest J has been reduced to zero;
(xxviii) to the REMIC II Regular Interest J, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xxix) to the REMIC II Regular Interest K, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxx) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest J to the REMIC II Regular Interest K, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G, REMIC II Regular Interest H and REMIC II Regular
Interest J), until the Certificate Balance of the REMIC II Regular Interest K
has been reduced to zero;
(xxxi) to the REMIC II Regular Interest K, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xxxii) to the REMIC II Regular Interest L, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
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(xxxiii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest K to the REMIC II Regular Interest L, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II
Regular Interest J and REMIC II Regular Interest K), until the Certificate
Balance of the REMIC II Regular Interest L has been reduced to zero;
(xxxiv) to the REMIC II Regular Interest L, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xxxv) to the REMIC II Regular Interest M, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxvi) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest L to the REMIC II Regular Interest M, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II Regular
Interest J, REMIC II Regular Interest K and REMIC II Regular Interest L), until
the Certificate Balance of the REMIC II Regular Interest M has been reduced to
zero;
(xxxvii) to the REMIC II Regular Interest M, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xxxviii) to the REMIC II Regular Interest N, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxix) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest M to the REMIC II Regular Interest N, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II Regular
Interest J, REMIC II Regular Interest K, REMIC II Regular Interest L and REMIC
II Regular Interest M), until the Certificate Balance of the REMIC II Regular
Interest N has been reduced to zero;
(xl) to the REMIC II Regular Interest N, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
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(xli) to the REMIC II Regular Interest O, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xlii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest N to the REMIC II Regular Interest O, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II Regular
Interest J, REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II
Regular Interest M, and REMIC II Regular Interest N), until the Certificate
Balance of the REMIC II Regular Interest O has been reduced to zero;
(xliii) to the REMIC II Regular Interest O, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate; and
(xliv) thereafter, to the Class R-II Certificateholders.
(b) On each Distribution Date, the Paying Agent on behalf of the
Trustee, as holder of the REMIC II Excess Interests, shall have deemed to
distribute to the REMIC II Excess Interests, any Excess Interest.
SECTION 6.4 REMIC III.
(a) On each Distribution Date, the Paying Agent on behalf of the
Trustee shall withdraw from the Distribution Account an amount equal to the
Available Distribution Amount and shall distribute such amount (other than the
amount attributable to Excess Interest which shall be distributed in accordance
with Section 6.4(c)) in the following amounts and order of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-2
Certificates and Class X Certificates, Distributable Certificate Interest for
such Distribution Date, pro rata in proportion to the Distributable Certificate
Interest payable to each such Class;
(ii) to the Holders of the Class A-1 Certificates, the
Principal Distribution Amount for such Distribution Date, until the Certificate
Balance of the Class A-1 Certificates has been reduced to zero;
(iii) upon payment in full of the Certificate Balance of the
Class A-1 Certificates, to the Holders of the Class A-2 Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A-1 Certificates), until the
Certificate Balance of the Class A-2 Certificates has been reduced to zero;
(iv) to the Holders of the Class A Certificates and Class X
Certificates, pro rata on the basis of their respective entitlements to
reimbursement described in
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this clause (iv), to reimburse any Realized Losses previously allocated thereto
plus interest on such Realized Losses compounded monthly at one-twelfth the
applicable Pass-Through Rate;
(v) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(vi) upon payment in full of the Certificate Balance of the
Class A-2 Certificates, to the Holders of the Class B Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A Certificates), until the
Certificate Balance of the Class B Certificates has been reduced to zero;
(vii) to the Holders of the Class B Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate);
(viii) to the Holders of the Class C Certificates,
Distributable Certificate Interest for such Distribution Date;
(ix) upon payment in full of the Certificate Balance of the
Class B Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A and Class B Certificates), until the
Certificate Balance of the Class C Certificates has been reduced to zero;
(x) to the Holders of the Class C Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xi) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xii) upon payment in full of the Certificate Balance of the
Class C Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B and Class C Certificates),
until the Certificate Balance of the Class D Certificates has been reduced to
zero;
(xiii) to the Holders of the Class D Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xiv) to the Holders of the Class E Certificates,
Distributable Certificate Interest for such Distribution Date;
(xv) upon payment in full of the Certificate Balance of the
Class D Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A,
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Class B, Class C and Class D Certificates), until the Certificate Balance of the
Class E Certificates has been reduced to zero;
(xvi) to the Holders of the Class E Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xvii) to the Holders of the Class F Certificates,
Distributable Certificate Interest for such Distribution Date;
(xviii) upon payment in full of the Certificate Balance of the
Class E Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D and Class E
Certificates), until the Certificate Balance of the Class F Certificates has
been reduced to zero;
(xix) to the Holders of the Class F Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xx) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxi) upon payment in full of the Certificate Balance of the
Class F Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E
and Class F Certificates), until the Certificate Balance of the Class G
Certificates has been reduced to zero;
(xxii) to the Holders of the Class G Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxiii) to the Holders of the Class H Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxiv) upon payment in full of the Certificate Balance of the
Class G Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F and Class G Certificates), until the Certificate Balance of the Class H
Certificates has been reduced to zero;
(xxv) to the Holders of the Class H Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxvi) to the Holders of the Class J Certificates,
Distributable Certificate Interest for such Distribution date;
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(xxvii) upon payment in full of the Certificate Balance of the
Class H Certificates, to the Holders of the Class J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by a any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates), until the Certificate Balance of the
Class J Certificates has been reduced to zero;
(xxviii) to the Holders of the Class J Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxix) to the Holders of the Class K Certificates,
Distributable Certificate Interest for such Distributable Date;
(xxx) upon payment in full of the Certificate Balance of the
Class J Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class J Certificates), until the Certificate
Balance of the Class K Certificates has been reduced to zero;
(xxxi) to the Holders of the Class K Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxxii) to the Holders of the Class L Certificates,
Distributable Certificate Interest for such Distributable Date;
(xxxiii) upon payment in full of the Certificate Balance of
the Class K Certificates, to the Holders of the Class L Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and Class K Certificates), until the
Certificate Balance of the Class L Certificates has been reduced to zero;
(xxxiv) to the Holders of the Class L Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxxv) to the Holders of the Class M Certificates,
Distributable Certificate Interest for such Distributable Date;
(xxxvi) upon payment in full of the Certificate Balance of the
Class L Certificates, to the Holders of the Class M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K and Class L Certificates), until the
Certificate Balance of the Class M Certificates has been reduced to zero;
(xxxvii) to the Holders of the Class M Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
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(xxxviii) to the Holders of the Class N Certificates,
Distributable Certificate Interest for such Distributable Date;
(xxxix) upon payment in full of the Certificate Balance of the
Class M Certificates, to the Holders of the Class N Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, and Class K, Class L, Class M Certificates),
until the Certificate Balance of the Class N Certificates has been reduced to
zero;
(xl) to the Holders of the Class N Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xli) to the Holders of the Class O Certificates,
Distributable Certificate Interest for such Distributable Date;
(xlii) upon payment in full of the Certificate Balance of the
Class N Certificates, to the Holders of the Class O Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class N
Certificates), until the Certificate Balance of the Class O Certificates has
been reduced to zero;
(xliii) to the Holders of the Class O Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
and
(xliv) to the Holders of the Class R-III Certificates at such
time as the Certificate Balances of all Classes of REMIC Regular Certificates
have been reduced to zero, and Realized Losses previously allocated to each
Holder have been reimbursed to the Holders of the REMIC Regular Certificates,
any amounts remaining on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring on
or after the earliest date, if any, upon which the Certificate Balances of all
Classes of Subordinate Certificates have been reduced to zero or the aggregate
Appraisal Reduction in effect is greater than or equal to Certificate Balances
of all Classes of Subordinate Certificates, the Principal Distribution Amount
will be distributed, first, to the Holders of the Class A-1 and Class A-2
Certificates, pro rata, based on their respective Certificate Balances, in
reduction of their respective Certificate Balances, until the Certificate
Balance of each such Class is reduced to zero; and, second, to the Holders of
the Class A-1 and Class A-2 Certificates, pro rata, based on their respective
Certificate Balances, for the unreimbursed amount of Realized Losses and Expense
Losses previously allocated to such Classes.
(b) On each Distribution Date, the Paying Agent shall withdraw amounts
in the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
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(i) first, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) for any, and to the
extent of, Realized Losses or Expense Losses previously allocated to them; and
(ii) second, upon the reduction of the aggregate Certificate
Balance of the Principal Balance Certificates to zero, to pay any amounts
remaining on deposit in such account to the Special Servicer as additional
Special Servicer compensation.
(c) On each Distribution Date, the Paying Agent shall withdraw from the
Distribution Account any amounts constituting Excess Interest, and the Paying
Agent shall pay such Excess Interest on such Distribution Date to the Class O
Certificates (even if the Certificate Balance of the Class O Certificates has
been reduced to zero for any reason).
SECTION 6.5 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized
during the related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest; and to the extent that such Realized
Interest Loss exceeds such amount, shall be treated as an Expense Loss;
(iii) Expense Losses (not otherwise applied above) realized
during the related Collection Period shall be allocated among the REMIC I
Regular Interests in proportion to their Certificate Balances after making all
other allocations for such Distribution Date.
(b) In the event that the Master Servicer, the Trustee or the Fiscal
Agent, determines that an Advance previously made by it is a Nonrecoverable
Advance and the Master Servicer withdraws the amount of such Advance from the
Certificate Account pursuant to Section 5.2(a) hereof (which amount shall be
treated as an Available Advance Reimbursement Amount pursuant to Section 4.6),
it shall determine the portion of the amount so withdrawn that is attributable
to (w) interest on the related Mortgage Loan; (x) principal on the related
Mortgage Loan; (y) Servicing Advances; and (z) Advance Interest. The portion of
the amount so withdrawn from the Certificate Account that is allocable to:
(i) amounts previously advanced as interest on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to reduce the amount of interest paid on each REMIC I Regular
Interest on such Distribution Date in proportion to Distributable Certificate
Interest otherwise payable thereon, and shall result in Unpaid Interest on each
such REMIC I Regular Interest;
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(ii) amounts previously advanced as principal on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to reduce the principal paid on each REMIC I Regular Interest
on which principal would otherwise be paid on such Distribution Date, in
proportion to such principal payments; and
(iii) amounts previously advanced as Servicing Advances, as
well as Advance Interest owing to the Master Servicer, the Trustee or the Fiscal
Agent with respect to Advances shall be treated as Expense Losses and allocated
in accordance with Section 6.5(a)(iii) above.
(c) At such time as a Final Recovery Determination is made with respect
to any Mortgage Loan with respect to which the Master Servicer previously had
withdrawn amounts from the Certificate Account following a determination that
Advances previously made were Nonrecoverable Advances, or at such other time as
a Realized Loss shall occur with respect to any such Mortgage Loan, the Master
Servicer shall compute the Realized Loss with respect to such Mortgage Loan and
the Paying Agent shall allocate such Realized Loss as follows:
(i) to the extent that any Realized Principal Loss does not
exceed the Certificate Balance on the Corresponding REMIC I Regular Interest,
such Realized Principal Loss shall be allocated to such REMIC I Regular
Interest; and to the extent that any Realized Principal Loss exceeds the
Certificate Balance of the Corresponding REMIC I Regular Interest, such Realized
Principal Loss shall be allocated to the other Corresponding REMIC I Regular
Interests with respect to which distributions of principal were reduced pursuant
to Section 6.5(b)(i) above, in proportion to the amount of such reductions;
(ii) any Realized Interest Loss shall be allocated to the
Corresponding REMIC I Interest to the extent of Unpaid Interest thereon and any
remaining portion of the Realized Interest Loss shall be allocated as a Realized
Interest Loss on each REMIC I Regular Interest with respect to which Unpaid
Interest was created pursuant to Section 6.5(b)(ii) above in proportion to the
amount of Unpaid Interest resulting from the reduction in distributions of
interest on such REMIC I Regular Interest pursuant to Section 6.5(b)(ii) above;
(iii) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the Certificate Account that
are treated as recoveries of principal on the Mortgage Loan shall be applied
first, to make payments of principal on the Corresponding REMIC I Regular
Interest until the Certificate Balance thereof is reduced to zero and thereafter
to make payments of principal to the Corresponding REMIC I Regular Interests
with respect to which principal distributions were reduced pursuant to Section
6.5(b)(i) above, in proportion to the amount of such reductions;
(iv) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the Certificate Account that
are treated as recoveries of interest on the Mortgage Loan shall be applied
first, to make payments of Unpaid Interest on the Corresponding REMIC I Regular
Interest and thereafter to make payments of interest on each REMIC I Interest
with respect to which Unpaid Interest was created pursuant to
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Section 6.5(b)(ii) above in proportion to the amount of Unpaid Interest
resulting from the reduction in distributions of interest on such REMIC I
Regular Interest pursuant to Section 6.5(b)(ii) above; and
(v) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the Certificate Account that
is treated as a recovery of expenses on the Mortgage Loan shall be applied in
reimbursement of Expense Losses on each REMIC I Regular Interest with respect to
which an Expense Loss was created pursuant to Section 6.5(b)(iii) above in
proportion to the amount of the Expense Loss allocated thereto pursuant to
Section 6.5(b)(iii) above.
(d) On each Distribution Date, all Realized Losses and Expense Losses
on the REMIC I Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not previously allocated) shall be allocated to the
Corresponding REMIC II Regular Interests in the amounts and in the manner as
will be allocated to the REMIC Regular Certificates relating thereto pursuant to
Section 6.5(e). Realized Losses allocated to the Class X Certificates shall be
allocated among REMIC II Regular Interest A-1, REMIC II Regular Interest A-2,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest G, REMIC II
Regular Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K,
REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II Regular
Interest N and REMIC II Regular Interest O pro rata based on the product of the
Certificate Balance of such REMIC II Regular Interest and the Class X Strip Rate
(if any) applicable to the Class of Certificates relating to such REMIC II
Regular Interest.
(e) REMIC III. On each Distribution Date, all Realized Losses on the
REMIC III Regular Interests for such Distribution Date (or for prior
Distribution Dates, to the extent not previously allocated) shall be allocated
to the REMIC Regular Certificates in Reverse Sequential Order, with such
reductions being allocated among the Class A-1 Certificates, Class A-2
Certificates and Class X Certificates, pro rata, in each case reducing (A) the
Certificate Balance of such Class until such Certificate Balance is reduced to
zero (in the case of the Class A Certificates); (B) Unpaid Interest owing to
such Class to the extent thereof; and (C) Distributable Certificate Interest
owing to such Class, provided, that Realized Losses and Expense Losses shall not
reduce the aggregate Certificate Balance of the REMIC Regular Certificates below
the sum of the aggregate Certificate Balances of the REMIC II Regular Interests.
SECTION 6.6 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On each
Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in REMIC I,
shall be allocated among the REMIC I Regular Interests, pro rata in proportion
to the Accrued Certificate Interest for each such REMIC I Regular Interest for
such Distribution Date and shall reduce Distributable Certificate Interest for
each such Interest. On each Distribution Date, any Net Aggregate Prepayment
Interest Shortfalls in REMIC II shall be allocated among the REMIC II Regular
Interests, pro rata in proportion to the Accrued Certificate Interest for each
such REMIC II Regular Interest for such Distribution Date and shall reduce
Distributable Certificate Interest for each such Interest. On each Distribution
Date, the amount of any Net Aggregate Prepayment Interest Shortfalls on the
REMIC III Regular Interests in the aggregate shall be allocated to each Class of
Certificates, pro rata, in proportion to the amount of Accrued
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Certificate Interest payable to such Class of Certificates on such Distribution
Date, in each case reducing interest otherwise payable thereon. The amount of
Net Aggregate Prepayment Interest Shortfalls allocated to a Class of
Certificates pursuant to the preceding sentence shall reduce the Distributable
Certificate Interest for such Class for such Distribution Date.
SECTION 6.7 ADJUSTMENT OF SERVICING FEES. The total Servicing Fee and
Special Servicing Fee payable to the Master Servicer and the Special Servicer,
respectively, shall be adjusted as provided in Section 8.10(c) and Section 9.11
herein. Any amount retained by REMIC I as a result of a reduction of the
Servicing Fee and the Special Servicing Fee shall be treated as interest
collected with respect to the prepaid Mortgage Loans with respect to which the
Servicing Fee or Special Servicing Fee adjustment occurs.
SECTION 6.8 APPRAISAL REDUCTIONS.
Not later than the date on which an Appraisal Event occurs, the Special
Servicer shall have obtained (A) an Appraisal of the Mortgaged Property securing
such Mortgage Loan, if such Principal Balance exceeds $1,000,000 or (B) at the
option of the Special Servicer, if such Principal Balance is less than or equal
to $1,000,000, either an internal valuation prepared by the Special Servicer in
accordance with MAI Standards or an Appraisal which in all cases shall be
completed as of the date that such Mortgage Loan becomes a Required Appraisal
Loan; provided that if the Special Servicer had completed or obtained an
Appraisal or internal valuation within the immediately prior 12 months, the
Special Servicer may rely on such Appraisal or internal valuation and shall have
no duty to prepare a new Appraisal or internal valuation, unless such reliance
would not be in accordance with the Servicing Standard; provided, further, that
if the Special Servicer is required to obtain an MAI appraisal of a Mortgaged
Property after receipt of the notice described in clause (ii) of the definition
of Appraisal Event, such appraisal will be obtained no later than 60 days after
receipt of such notice and an internal valuation will be obtained no later than
30 days after receipt of such notice. Such Appraisal or valuation shall be
conducted in accordance with the definition of "market value" as set forth in 12
C.F.R. Section 225.65 and shall be updated at least annually to the extent such
Mortgage Loan remains a Required Appraisal Loan. The cost of any such Appraisal
or valuation, if not performed by the Special Servicer, shall be an expense of
the Trust and may be paid from REO Income, treated as an Additional Trust
Expense or, to the extent collections from such related Mortgage Loan does not
cover the expense, such unpaid expense shall be advanced by the Master Servicer
in which event it shall be treated as a Servicing Advance, subject to Section
4.4 hereof. The Master Servicer, based on the Appraisal or internal valuation
provided to it by the Special Servicer, shall calculate any Appraisal Reduction.
The Master Servicer shall calculate or recalculate the Appraisal Reduction for
any Mortgage Loan based on updated Appraisals or internal valuations provided
from time to time to it by the Special Servicer.
SECTION 6.9 COMPLIANCE WITH WITHHOLDING REQUIREMENTS. Notwithstanding
any other provision of this Agreement to the contrary, the Paying Agent on
behalf of the Trustee shall comply with all federal withholding requirements
with respect to payments to Certificateholders of interest, original issue
discount, or other amounts that the Paying Agent reasonably believes are
applicable under the Code. The consent of Certificateholders shall not be
required for any such withholding and any amount so withheld shall be regarded
as distributed to the related Certificateholders for purposes of this Agreement.
In the event the
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Paying Agent withholds any amount from payments made to any Certificateholder
pursuant to federal withholding requirements, the Paying Agent shall indicate to
such Certificateholder the amount withheld.
SECTION 6.10 PREPAYMENT PREMIUMS. On each Distribution Date, the Paying
Agent shall be deemed to distribute to the Trustee, as holder of the REMIC I
Regular Interests, any Prepayment Premiums collected on or with respect to the
Mortgage Loans. On each Distribution Date, the Paying Agent shall be deemed to
distribute to the Trustee, as holder of the REMIC II Regular Interests, any
Prepayment Premiums deemed distributed to the REMIC I Regular Interests, to be
deemed distributed to the REMIC II Regular Interest then entitled to
distributions of principal from the Principal Distribution Amount (or, if more
than one Class of such REMIC II Regular Interests is entitled to distributions
of principal from the Principal Distribution Amount, such Prepayment Premiums
shall be deemed to be allocated among such Classes on a pro rata basis in
accordance with the relative amounts of such deemed distributions of principal).
Any Prepayment Premium collected with respect to a Mortgage Loan during any
particular Collection Period will be distributed to the REMIC Regular
Certificates on the following Distribution Date as follows: The Holders of the
respective Classes of Principal Balance Certificates, other than the Class G,
Class H, Class J, Class K, Class L, Class M, Class N and Class O Certificates,
then entitled to distributions of principal from the Principal Distribution
Amount for such Distribution Date, will be entitled to an amount equal to, in
the case of each such Class, the lesser of (A) the amount of the Prepayment
Premium, and (B) (i) the amount of the Prepayment Premium multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is equal to the
excess, if any, of the Pass-Through Rate applicable to the most senior of such
Classes of Certificates then outstanding (or, if both Classes of Class A
Certificates are outstanding, the Class A-1 Certificates), over the relevant
Discount Rate, and the denominator of which is equal to the excess, if any, of
the Mortgage Rate of the Mortgage Loan that prepaid over the relevant Discount
Rate. If there is more than one such Class of Principal Balance Certificates
entitled to distributions of principal on such Distribution Date, the aggregate
amount described in the preceding sentence will be allocated among such Classes
on a pro rata basis in accordance with the relative amounts of entitlement to
such distributions of principal. Any portion of such Prepayment Premium that is
not so distributed to the Holders of such Principal Balance Certificates will be
distributed to the Holders of the Class X Certificates. The Trustee shall not be
responsible for the Paying Agent's failure to comply with any withholding
requirements.
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT
SECTION 7.1 DUTIES OF TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent each shall
undertake to perform only those duties as are specifically set forth in this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Trustee, the Fiscal Agent or the Paying Agent. Any
permissive right of the Trustee, the Fiscal Agent or the Paying Agent provided
for in this Agreement shall not be construed as a duty of the Trustee, the
Fiscal Agent or the Paying Agent. The Trustee, the Fiscal Agent and the Paying
Agent each shall exercise
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such of the rights and powers vested in it by this Agreement and following the
occurrence and during the continuation of any Event of Default hereunder, the
Trustee and the Paying Agent each shall use the same degree of care and skill in
its exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) The Trustee, the Fiscal Agent or the Paying Agent, as applicable,
upon receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, which are specifically required
to be furnished pursuant to any provision of this Agreement, shall examine them
to determine whether they on their face conform to the requirements of this
Agreement; provided that the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Master Servicer or any other Person to it
pursuant to this Agreement. If any such instrument is found on its face not to
conform to the requirements of this Agreement, the Trustee or the Paying Agent,
as the case may be, shall request the providing party to correct the instrument
and if not so corrected, the Trustee or the Paying Agent shall inform the
Certificateholders.
(c) Neither the Trustee, the Paying Agent nor the Fiscal Agent nor any
of their respective directors, officers, employees, agents or Controlling
Persons shall have any liability to the Trust or the Certificateholders arising
out of or in connection with this Agreement, except for their respective
negligence or willful misconduct. No provision of this Agreement shall be
construed to relieve the Trustee, the Fiscal Agent, the Paying Agent or any of
their respective directors, officers, employees, agents or Controlling Persons
from liability for their own negligent action, their own negligent failure to
act or their own willful misconduct or bad faith; provided that:
(i) neither the Trustee, the Fiscal Agent nor the Paying Agent
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable with respect to any action taken,
suffered or omitted to be taken by it in its reasonable business judgment in
accordance with this Agreement or at the direction of Holders of Certificates
evidencing not less than a majority of the outstanding Certificate Balance of
the Certificates;
(ii) no provision of this Agreement shall require either the
Trustee, the Fiscal Agent or the Paying Agent 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;
(iii) neither the Trustee, the Fiscal Agent nor the Paying
Agent nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be responsible for any act or omission of the Master
Servicer, the Special Servicer, the Depositor or either Seller, or for the acts
or omissions of each other, including, without limitation, in connection with
actions taken pursuant to this Agreement;
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(iv) the execution by the Trustee or the Paying Agent of any
forms or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) none of the Trustee, the Fiscal Agent or the Paying Agent
shall be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties as Trustee, the Fiscal Agent or the Paying
Agent, as applicable in accordance with this Agreement. In such event, all legal
expense and costs of such action shall be expenses and costs of the Trust and
the Trustee, the Fiscal Agent and the Paying Agent shall be entitled to be
reimbursed therefor from the Certificate Account pursuant to Section 5.2(a)(vi);
and
(vi) neither the Trustee, the Fiscal Agent nor the Paying
Agent shall be charged with knowledge of any failure by the Master Servicer or
the Special Servicer or by each other to comply with its obligations under this
Agreement or any act, failure, or breach of any Person upon the occurrence of
which the Trustee, the Fiscal Agent or the Paying Agent may be required to act,
unless a Responsible Officer of the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, obtains actual knowledge of such failure.
(d) The Paying Agent covenants that by August 31, 1999, any custom-made
software or hardware designed or purchased or licensed by such entity and used
by such entity in the course of operation or management of, or the compiling,
reporting or generation of date required by this Agreement will not contain any
deficiency (x) in the ability of such software or hardware to identify correctly
or perform calculations or other processing with respect to dates after August
31, 1999 or (y) that would cause such software 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.
(e) The Trustee represents that it will use commercially reasonable
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 Trustee in the conduct of its
trust business which would materially and adversely affect its ability to
perform its obligations under this Agreement. The Trustee 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
Trustee 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 Trustee to
perform its obligations under this Agreement.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE, THE FISCAL AGENT AND
THE PAYING AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Fiscal Agent and the Paying Agent each
may request, and may rely 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
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document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) the Trustee, the Fiscal Agent and the Paying Agent each
may consult with counsel and the advice of such counsel and any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable for any action taken, suffered or
omitted by such Person in its reasonable business judgment and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(iv) neither the Trustee nor the Paying Agent shall be under
any obligation to exercise any remedies after default as specified in this
Agreement or to institute, conduct or defend any litigation hereunder or
relating hereto or 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 (provided the
same appears regular on its face), unless requested in writing to do so by
Holders of at least 25% of the Aggregate Principal Amount of the Certificates
then outstanding provided that, if the payment within a reasonable time to the
Trustee or the Paying Agent, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in connection with the foregoing is, in
the opinion of such Person not reasonably assured to such Person by the security
afforded to it by the terms of this Agreement, such Person may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable expenses of the
Trustee or the Paying Agent, as applicable, shall be paid by the
Certificateholders requesting such examination;
(v) the Trustee, the Fiscal Agent and the Paying Agent each
may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, which agents or
attorneys shall have any or all of the rights, powers, duties and obligations of
the Trustee, the Fiscal Agent and the Paying Agent conferred on them by such
appointment; provided that each of the Trustee, the Fiscal Agent and the Paying
Agent, as the case may be, shall continue to be responsible for its duties and
obligations hereunder and shall not be liable for the actions or omissions of
the Master Servicer, the Special Servicer, the Depositor or the actions or
omissions of each other;
(vi) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be required to obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be required to expend its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such liability is not assured to it;
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(viii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall not be liable for any loss on any investment of funds pursuant to
this Agreement;
(ix) unless otherwise specifically required by law, neither
the Trustee nor the Fiscal Agent nor the Paying Agent shall be required to post
any surety or bond of any kind in connection with the execution or performance
of its duties hereunder; and
(x) except as specifically provided hereunder in connection
with the performance of its specific duties, neither the Trustee nor the Fiscal
Agent nor the Paying Agent shall be responsible for any act or omission of the
Master Servicer, the Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of any
and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the Trustee.
(e) The Paying Agent shall timely pay, from its own funds, the amount
of any and all federal, state and local taxes imposed on the Trust or its assets
or transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, (B) any tax on contributions to a REMIC after the
Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net
income from foreclosure property" as defined in Section 860G(c) of the Code, but
only if such taxes arise out of a breach by the Paying Agent of its obligations
hereunder, which breach constitutes negligence or willful misconduct of the
Paying Agent.
SECTION 7.3 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT NOT
LIABLE FOR CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee, the Fiscal
Agent and the Paying Agent each makes no representations as to the validity or
sufficiency of this Agreement, the information contained in the Private
Placement Memorandum, the Preliminary Prospectus Supplement or Final Prospectus
Supplement for the REMIC III Certificates or Residual Certificates (other than
the certificate of authentication on the Certificates if the Paying Agent is
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the Authenticating Agent) or of any Mortgage Loan, Assignment of Mortgage or
related document save that (i) each of the Trustee and the Fiscal Agent
represents that, assuming due execution and delivery by the other parties
hereto, this Agreement has been duly authorized, executed and delivered by it
and constitutes its valid and binding obligation, enforceable against it in
accordance with its terms except that such enforceability may be subject to (A)
applicable bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally, and (B) general principles of
equity regardless of whether such enforcement is considered in a proceeding in
equity or at law and (ii) the Paying Agent represents that, assuming due
execution and delivery by the other parties hereto, this Agreement has been duly
authorized, executed and delivered by it and constitutes its valid and binding
obligation, enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law. None of the
Trustee, the Fiscal Agent or the Paying Agent shall be accountable for the use
or application by the Depositor or the Master Servicer or the Special Servicer
or by each other of any of the Certificates or any of the proceeds of such
Certificates, or for the use or application by the Depositor or the Master
Servicer or the Special Servicer or by each other of funds paid in consideration
of the assignment of the Mortgage Loans to the Trust or deposited into the
Distribution Account or any other fund or account maintained with respect to the
Certificates or any account maintained pursuant to this Agreement or for
investment of any such amounts. No recourse shall be had for any claim based on
any provisions of this Agreement, the Private Placement Memorandum, the
Preliminary Prospectus Supplement and Final Prospectus Supplement or the
Certificates (except with respect to the Trustee and Fiscal Agent to the extent
of information furnished by the Trustee and the Fiscal Agent under the caption
entitled "DESCRIPTION OF THE CERTIFICATES--The Trustee and the Fiscal Agent" and
with respect to the Paying Agent, to the extent of information furnished by the
Paying Agent under the caption "DESCRIPTION OF THE CERTIFICATES -- Paying
Agent," each in the Preliminary Prospectus Supplement and Final Prospectus
Supplement), the Certificates, the Mortgage Loans or the assignment thereof
against the Trustee, the Fiscal Agent or the Paying Agent in such Person's
individual capacity and any such claim shall be asserted solely against the
Trust or any indemnitor who shall furnish indemnity as provided herein. Neither
the Trustee nor the Fiscal Agent nor the Paying Agent shall be liable for any
action or failure of any action by the Depositor or the Master Servicer or the
Special Servicer or by each other hereunder. Neither the Trustee nor the Fiscal
Agent nor the Paying Agent shall at any time have any responsibility or
liability for or with respect to the legality, validity or enforceability of the
Mortgages or the Mortgage Loans, or the perfection and priority of the Mortgages
or the maintenance of any such perfection and priority, or for or with respect
to the efficacy of the Trust or its ability to generate the payments to be
distributed to Certificateholders under this Agreement, including, without
limitation, the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon; the validity
of the assignment of the Mortgage Loans to the Trust or of any intervening
assignment; the completeness of the Mortgage Loans; the performance or
enforcement of the Mortgage Loans (other than if the Trustee shall assume the
duties of the Master Servicer); the compliance by the Depositor, each Seller,
the Mortgagor or the Master Servicer or the Special Servicer or by each other
with any warranty or representation made under this Agreement or in any related
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document or the accuracy of any such warranty or representation made under this
Agreement or in any related document prior to the receipt by a Responsible
Officer of the Trustee of notice or other discovery of any non-compliance
therewith or any breach thereof; any investment of monies by or at the direction
of the Master Servicer or the Special Servicer or any loss resulting therefrom;
the failure of the Master Servicer or any Sub-Servicer or the Special Servicer
to act or perform any duties required of it on behalf of the Trustee hereunder;
or any action by the Trustee taken at the instruction of the Master Servicer or
the Special Servicer.
SECTION 7.4 THE TRUSTEE, THE FISCAL AGENT AND PAYING AGENT MAY OWN
CERTIFICATES. Each of the Trustee, the Fiscal Agent and the Paying Agent in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not the Trustee, the Fiscal Agent
or the Paying Agent, as the case may be.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE, THE FISCAL AGENT
AND THE PAYING AGENT. (a) Each of the Trustee and the Fiscal Agent hereunder
shall at all times be (i) an institution insured by the FDIC, (ii) a
corporation, authorized to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority, and (iii) an institution whose
long-term senior unsecured debt is rated not less than either (a) "Aa2" by
Xxxxx'x and, if rated by DCR, "AA" by DCR, and if not rated by DCR, then
otherwise acceptable to DCR, if the Fiscal Agent does not have such ratings for
its long-term senior secured debt, or (b) "A2" by Xxxxx'x and, if rated by DCR,
"BBB" by DCR, or if not rated by DCR, then otherwise approved by DCR, if the
Fiscal Agent has a long-term senior secured debt rating of not less than "Aa2"
by Xxxxx'x and "AA" by DCR, if rated by DCR, and if not rated by DCR, then
otherwise approved by DCR. If such corporation or national bank publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then, for the purposes of
this Section, the combined capital and surplus of such corporation or national
bank 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 or
the Fiscal Agent shall cease to be eligible in accordance with provisions of
this Section, the Trustee or the Fiscal Agent shall resign immediately in the
manner and with the effect specified in Section 7.6.
(b) The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall be
rated at least "Baa2" by Xxxxx'x and "BBB" by DCR, unless and to the extent
Rating Agency Confirmation is obtained.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE FISCAL AGENT OR
THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent or the Paying Agent may at any time
resign and be discharged from the trusts hereby created by giving written notice
thereof to the Depositor, the Master Servicer and the Rating Agencies; provided
that such resignation shall not be effective until its successor shall have
accepted the appointment. Upon receiving such notice of resignation, the
Depositor will promptly appoint a successor trustee, fiscal agent or paying
agent, as the case may be, except in the case of the initial Trustee or Fiscal
Agent, in which case both shall be so replaced but may be replaced under this
paragraph sequentially, by written instrument, one copy of which instrument
shall be delivered to the resigning Trustee or the Fiscal
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Agent, one copy to the successor trustee and one copy to each of the Master
Servicer and the Rating Agencies. If no successor trustee, fiscal agent or
paying agent shall have been so appointed, as the case may be, and shall have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee, the Fiscal Agent or the Paying Agent, as the
case may be, may petition any court of competent jurisdiction for the
appointment of a successor trustee, fiscal agent or paying agent, as the case
may be. It shall be a condition to the appointment of a successor trustee,
fiscal agent or paying agent that the Rating Agencies shall have confirmed in
writing that such appointment shall not result in a downgrading, qualification
or withdrawal of the ratings of each Class of Certificates then rated.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5(a) and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies or (v) with respect with the initial Trustee, a
Fiscal Agent Termination Event has occurred unless the Trustee has satisfied the
ratings required by Section 7.5(iii)(a) above, then the Depositor may remove
such Trustee and appoint a successor trustee by written instrument, one copy of
which instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee and one copy to each of the Master Servicer and the Rating
Agencies. In the case of removal under clauses (i), (ii), (iii) and (iv) above,
the Trustee shall bear all such costs of transfer. Such succession shall take
effect after a successor trustee has been appointed. In the case of the removal
of the initial Trustee, the Depositor shall also remove the Fiscal Agent. In
this case, the procedures and liability for costs of such removal shall be the
same as they are stated in subsection (c) with respect to the Fiscal Agent.
(c) If at any time (i) the Fiscal Agent shall cease to be eligible in
accordance with the provisions of Section 7.5(a) and shall fail to resign after
written request therefor by the Depositor, or (ii) a Fiscal Agent Termination
Event has occurred, then the Depositor shall send a written notice of
termination to the Fiscal Agent (which notice shall specify the reason for such
termination) and remove such Fiscal Agent and appoint a successor Fiscal Agent
by written instrument, one copy of which instrument shall be delivered to the
Fiscal Agent so removed, one copy to the successor Fiscal Agent, and one copy to
each of the Trustee, the Master Servicer and the Rating Agencies. In all such
cases, the Fiscal Agent shall bear all costs of transfer to a successor Fiscal
Agent, such succession only to take effect after a successor Fiscal Agent has
been appointed. In the case of the initial Fiscal Agent, the Depositor may, but
is not required to, also remove the Trustee. In this case, the procedures and
liability for costs of such removal shall be the same as they are stated in
subsection (b) with respect to the Trustee.
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(d) If at any time (i) the Paying Agent shall cease to be eligible in
accordance with the provisions of Section 7.5(b) and shall fail to resign after
written request therefor by the Depositor, (ii) the Paying Agent shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Paying Agent or of its property shall be appointed, or any public officer
shall take charge or control of the Paying Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Paying Agent is located solely because of the location of the
Paying Agent in such state; provided, however, that, if the Paying Agent agrees
to indemnify the Trust for such taxes, it shall not be removed pursuant to this
clause (iii), or (iv) the continuation of the Paying Agent as such would result
in a downgrade, qualification or withdrawal, as applicable, of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies, then the Depositor or the Trustee shall send a
written notice of termination to the Paying Agent (which notice shall specify
the reason for such termination) and remove such Paying Agent and the Depositor
shall appoint a successor Paying Agent by written instrument, one copy of which
instrument shall be delivered to the Paying Agent so removed, one copy to the
successor Paying Agent, and one copy to each of the Trustee, the Master Servicer
and the Rating Agencies. In all such cases, the Paying Agent shall bear all
costs of transfer to a successor Paying Agent, such succession only to take
effect after a successor Paying Agent has been appointed.
(e) The Holders of more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may for cause upon 30 days' written notice to
the Trustee, the Fiscal Agent or the Paying Agent, as the case may be, and to
the Depositor remove the Trustee, the Fiscal Agent or the Paying Agent, as the
case may be, by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor and one copy to the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, so removed; the Depositor shall thereupon use
its best efforts to appoint a successor Trustee, Fiscal Agent or Paying Agent,
as the case may be, in accordance with this Section.
(f) Any resignation or removal of the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, and appointment of a successor trustee, fiscal
agent or paying agent pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee, fiscal
agent or paying agent, as the case may be, as provided in Section 7.7. Upon any
succession of the Trustee, the Fiscal Agent or Paying Agent under this
Agreement, the predecessor Trustee, Fiscal Agent or Paying Agent, as the case
may be, shall be entitled to the payment of compensation and reimbursement
agreed to under this Agreement for services rendered and expenses incurred. The
Trustee, the Fiscal Agent or the Paying Agent shall not be liable for any action
or omission of any successor Trustee, Fiscal Agent or Paying Agent, as the case
may be.
SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING AGENT.
(a) Any successor Trustee, Fiscal Agent or Paying Agent appointed as
provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee, Fiscal Agent or Paying Agent, as the case may
be, an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor
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Trustee, Fiscal Agent or Paying Agent, as the case may be, shall become
effective and such successor Trustee, Fiscal Agent or Paying Agent, as the case
may be, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee, Fiscal Agent or
Paying Agent herein. The predecessor Trustee, Fiscal Agent or Paying Agent shall
deliver (at such predecessor's own expense) to the successor Trustee, Fiscal
Agent or Paying Agent all Mortgage Files and documents and statements related to
the Mortgage Files held by it hereunder, and the predecessor Trustee shall duly
assign, transfer, deliver and pay over (at such predecessor's own expense) to
the successor Trustee, the entire Trust, together with all instruments of
transfer and assignment or other documents properly executed necessary to effect
such transfer. The predecessor Trustee, Fiscal Agent or Paying Agent, as the
case may be, shall also deliver all records or copies thereof maintained by the
predecessor Trustee, Fiscal Agent or Paying Agent in the administration hereof
as may be reasonably requested by the successor Trustee, Fiscal Agent or Paying
Agent, as applicable, and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee, Fiscal Agent or Paying Agent shall execute and deliver such
other instruments and do such other things as may reasonably be required to more
fully and certainly vest and confirm in the successor Trustee, Fiscal Agent or
Paying Agent, as the case may be, all such rights, powers, duties and
obligations. Anything herein to the contrary notwithstanding, in no event shall
the combined fees payable to a successor Trustee exceed the Trustee Fee.
(b) No successor Trustee, Fiscal Agent or Paying Agent shall accept
appointment as provided in this Section unless at the time of such appointment
such successor Trustee, Fiscal Agent or Paying Agent, as the case may be, shall
be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee, Fiscal Agent
or Paying Agent as provided in this Section, the successor Trustee, Fiscal Agent
or Paying Agent shall mail notice of the succession of such Trustee, Fiscal
Agent or Paying Agent hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to the Rating Agencies. The
expenses of such mailing shall be borne by the successor Trustee, Fiscal Agent
or Paying Agent. If the successor Trustee, Fiscal Agent or Paying Agent fails to
mail such notice within 10 days after acceptance of appointment by the successor
Trustee, Fiscal Agent or Paying Agent, the Master Servicer shall cause such
notice to be mailed at the expense of the successor Trustee, Fiscal Agent or
Paying Agent, as applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT OR PAYING
AGENT. Any Person into which the Trustee, Fiscal Agent or Paying Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee,
Fiscal Agent or Paying Agent shall be a party, or any Persons succeeding to the
business of such Trustee, Fiscal Agent or Paying Agent, shall be the successor
of such Trustee, Fiscal Agent or Paying Agent, as the case may be, hereunder, as
applicable, provided that such Person shall be eligible under the provisions of
Section 7.5, 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.
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SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS OR
CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders, shall have such powers, rights and remedies as shall
be specified in the instrument of appointment and shall be deemed to have
accepted the provisions of this Agreement; provided that no such appointment
shall, or shall be deemed to, constitute the appointee an agent of the Trustee;
provided, further that the Trustee shall be liable for the actions of any
co-trustee or separate trustee appointed by it and shall have no liability for
the actions of any co-trustee or separate trustee appointed by the Depositor or
the Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from time
to time appoint one or more independent third-party agents to perform all or any
portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding, the terms of any agreement, the Trustee or the
Paying Agent, as the case may be, shall remain at all times obligated and liable
to the Trust and the Certificateholders for performing its duties hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other 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, co-trustee, or
custodian jointly, except to the extent that under
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any law of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Master Servicer
hereunder) the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations, including
the holding of title to the Trust or any portion thereof in any such
jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(d) 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, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VII. 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.
(e) Any separate trustee, co-trustee or custodian 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, co-trustee or custodian 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.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed pursuant to this Section
7.9 to the extent, and in accordance with the standards, specified in Section
7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall not be
unreasonably withheld, the Trustee may appoint at any time a successor
Custodian. Until such time as the Trustee appoints a successor Custodian, the
Trustee shall be the Custodian hereunder.
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Upon the appointment of a successor custodian, the Trustee and the Custodian
shall enter into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Paying Agent shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. Wherever
reference is made in this Agreement to the execution and authentication of
Certificates by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include execution and authentication on behalf of
the Trustee by the Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by the Authenticating Agent. Any successor
Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan, the City and State of New York or in
the State of Minnesota, having a combined capital and surplus of at least
$50,000,000, authorized under such laws to do a trust business and subject to
supervision or examination by federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of the Authenticating Agent by
giving written notice of termination to the Authenticating Agent and the
Depositor; provided that the Trustee may not terminate the Paying Agent as
Authenticating Agent unless the Paying Agent shall be removed as paying agent
hereunder. Upon receiving a notice of resignation or upon such a termination, or
in case at any time the Authenticating Agent shall cease to be eligible in
accordance with the provisions of Section 7.10(a), the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No such Authenticating Agent shall be
appointed unless eligible under the provisions of Section 7.10(a). No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent and each of its
respective directors, officers, employees, agents and Controlling Persons shall
be entitled to indemnification from the Trust for any and all claims, losses,
penalties, fines, forfeitures, legal
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fees and related costs, judgements and any other costs, liabilities, fees and
expenses incurred in connection with any legal action incurred without
negligence or willful misconduct on their respective part, arising out of, or in
connection with this Agreement, the Certificates and the acceptance or
administration of the trusts or duties created hereunder (including, without
limitation, any unanticipated loss, liability or expense incurred in connection
with any action or inaction of the Master Servicer, the Special Servicer or the
Depositor or of each other such Person hereunder but only to the extent the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, is unable to
recover within a reasonable period of time such amount from such third party
pursuant to this Agreement) including the costs and expenses of defending
themselves against any claim in connection with the exercise or performance of
any of their powers or duties hereunder and the Trustee, the Fiscal Agent and
the Paying Agent and each of their respective directors, officers, employees,
agents and Controlling Persons shall be entitled to indemnification from the
Trust for any unanticipated loss, liability or expense incurred in connection
with the provision by the Trustee, the Fiscal Agent and the Paying Agent of the
reports required to be provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, shall have given the Depositor,
the Master Servicer, each other and the Holders of the Certificates written
notice thereof promptly after a Responsible Officer of the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, shall have knowledge thereof;
provided, however that failure to give such notice to the Depositor, Master
Servicer, each other and the Holders of Certificates shall not affect the
Trustee's, Fiscal Agent's or Paying Agent's, as the case may be, rights to
indemnification herein unless the Depositor's defense of such claim on behalf of
the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, shall
cooperate and consult fully with the Depositor in preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section
7.11, the Trust shall not be liable for settlement of any such claim by the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, entered into
without the prior consent of the Depositor, which consent shall not be
unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any termination
of this Agreement and the resignation or removal of the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, their respective
directors, officers, employees or agents and Controlling Persons from and
against any loss, claim, damage or liability, joint or several, and any action
in respect thereof, to which the Trustee, the Fiscal Agent or the Paying Agent,
as the case may be, their respective directors, officers, employees or agents or
Controlling Person may become subject under the 1933 Act, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum, in the Preliminary Prospectus Supplement or Final
Prospectus Supplement, or arises out of, or is based upon the omission or
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alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made, not misleading and shall reimburse the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, their respective directors,
officers, employees, agents or Controlling Person for any legal and other
expenses reasonably incurred by the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, or any such director, officer, employee, agent or
Controlling Person in investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action; provided, that the Depositor
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission made in any such Private
Placement Memorandum, Preliminary Prospectus Supplement or Final Prospectus
Supplement in reliance upon and in conformity with written information
concerning the Trustee, the Fiscal Agent or the Paying Agent, as the case may
be, furnished to the Depositor by or on behalf of such person specifically for
inclusion therein. It is hereby expressly agreed that the only written
information provided by the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, for inclusion in the Preliminary Prospectus Supplement and
Final Prospectus Supplement is set forth in the case of the Trustee in the
second, fourth and fifth sentences and in the case of the Fiscal Agent in the
penultimate sentence under the caption entitled "DESCRIPTION OF THE CERTIFICATES
-- The Trustee and the Fiscal Agent" and "DESCRIPTION OF THE CERTIFICATES -- the
Paying Agent." The Trustee, the Fiscal Agent or the Paying Agent, as the case
may be, shall immediately notify the Depositor if a claim is made by a third
party with respect to this Section 7.11(c) entitling such person, its directors,
officers, employees, agents or Controlling Person to indemnification hereunder,
whereupon the Depositor shall assume the defense of any such claim (with counsel
reasonably satisfactory to such person) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Depositor shall not affect any rights the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, their
respective directors, officers, employees, agents or Controlling Person may have
to indemnification under this Section 7.11(c), unless the Depositor's defense of
such claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the resignation or removal
of the Trustee, the Fiscal Agent or the Paying Agent.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL AGENT AND PAYING
AGENT. The Trustee shall be entitled to receive the Trustee Fee (other than the
portion thereof constituting the Paying Agent Fee) and the Paying Agent shall be
entitled to receive the Paying Agent Fee, pursuant to Section 5.3(b)(ii) (which
shall not be limited by any provision of law with respect to the compensation of
a trustee of an express trust), for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties respectively, hereunder of the Trustee and the Paying Agent,
respectively. The Trustee, the Fiscal Agent and the Paying Agent shall also be
entitled to recover from the Trust all reasonable unanticipated expenses and
disbursements incurred or made by the Trustee, the Fiscal Agent and the Paying
Agent in accordance with any of the provisions of this Agreement (including the
reasonable compensation and the reasonable expenses and disbursements of its
counsel and other Persons not regularly in its employ), not including expenses
incurred in the ordinary course of performing its duties as Trustee, Fiscal
Agent or Paying Agent, respectively hereunder, and except any such expense,
disbursement or advance as may arise from the
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negligence or bad faith of such Person or which is the responsibility of the
Holders of the Certificates hereunder. The provisions of this Section 7.12 shall
survive any termination of this Agreement and the resignation or removal of the
Trustee, the Fiscal Agent or the Paying Agent.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise expressly
provided in this Agreement, the Trustee and the Paying Agent may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee or the Paying Agent, as the case may be,
pursuant to this Agreement. The Trustee or the Paying Agent, as the case may be,
shall hold all such money and property received by it as part of the Trust and
shall distribute it as provided in this Agreement. If the Trustee or Paying
Agent, as the case may be, shall not have timely received amounts to be remitted
with respect to the Mortgage Loans from the Master Servicer, the Trustee or
Paying Agent, as the case may be, shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee or
Paying Agent, as the case may be, shall subsequently receive any such amount, it
may withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is terminated pursuant to
this Agreement, the Trustee shall be the successor in all respects to the Master
Servicer in its capacity under this Agreement and the transactions set forth or
provided for therein and shall have all the rights and powers and be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer by the terms and provisions of this
Agreement; provided that, any failure to perform such duties or responsibilities
caused by the Master Servicer's failure to provide required information shall
not be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no liability relating to (i) the representations and warranties of
the Master Servicer contained in this Agreement or (ii) any obligation incurred
by the Master Servicer prior to its termination or resignation (including,
without limitation, the Master Servicer's obligation to repay losses resulting
from the investment of funds in any account established under this Agreement).
In the Trustee's capacity as such successor, the Trustee shall have the same
limitations on liability granted to the Master Servicer in this Agreement. As
compensation therefor, the Trustee shall be entitled to receive all the
compensation payable to the Master Servicer set forth in this Agreement,
including, without limitation, the Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is
unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to the Master Servicer hereunder in the assumption of all of the
responsibilities, duties or liabilities of a servicer as Master Servicer
hereunder. Pending any such appointment, the Trustee shall act in such capacity
as hereinabove provided. Any entity designated by the Trustee as successor
Master Servicer may be an Affiliate of the Trustee; provided that, such
Affiliate must meet the standards for the Master Servicer as set forth herein.
In connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of
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such successor out of payments on Mortgage Loans as it and such successor shall
agree subject to Section 8.10. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Master Servicer shall cooperate with the Trustee and any
successor servicer in effecting the termination of the Master Servicer's
responsibilities and rights under this Agreement, including, without limitation,
notifying Mortgagors of the assignment of the servicing function and providing
the Trustee and successor servicer all documents and records in its possession
in electronic or other form reasonably requested by the successor servicer to
enable the successor servicer to assume the Master Servicer's functions
hereunder and the transfer to the Trustee or such successor servicer of all
amounts which shall at the time be or should have been deposited by the Master
Servicer in the Certificate Account and any other account or fund maintained
with respect to the Certificates or thereafter be received by the Master
Servicer with respect to the Mortgage Loans. Neither the Trustee nor any other
successor servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof caused by (i) the failure of the Master Servicer to deliver, or
any delay in delivering, cash, documents or records to it, or (ii) restrictions
imposed by any regulatory authority having jurisdiction over the Master
Servicer. The Trustee shall be reimbursed for all of its out-of-pocket expenses
incurred in connection with obtaining such successor Master Servicer by the
Trust within 30 days of the Trustee's submission of an invoice with respect
thereto, to the extent such expenses have not been reimbursed by the Master
Servicer as provided herein; such expenses paid by the Trust shall be deemed to
be an Additional Trust Expense.
(c) On and after the time the Special Servicer is terminated pursuant
to this Agreement, in accordance with Section 9.30, the Trustee shall be the
successor in all respects to the Special Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall have
all the rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Special
Servicer by the terms and provisions of this Agreement; provided that, any
failure to perform such duties or responsibilities caused by the Special
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of the Special
Servicer contained in this Agreement or (ii) any obligation incurred by the
Special Servicer prior to its termination or resignation. In the Trustee's
capacity as such successor, the Trustee shall have the same limitations on
liability granted to the Special Servicer in this Agreement. As compensation
therefor, the Trustee shall be entitled to receive all the compensation payable
to the Special Servicer set forth in this Agreement, including, without
limitation the Special Servicer Compensation.
(d) Notwithstanding the above, the Trustee may, if the Trustee shall be
unwilling to so act, or shall, if it is unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, any established commercial or
multifamily mortgage finance institution, special servicer or mortgage servicing
institution having a net worth of not less than $15,000,000, and meeting such
other standards for a successor Special Servicer as are set forth in Section
9.21, and with respect to which Rating Agency Confirmation is obtained, as the
successor to the Special Servicer hereunder in the assumption of all of the
responsibilities, duties or liabilities of a special servicer as Special
Servicer hereunder. Pending any such appointment, the Trustee shall act in such
capacity as hereinabove provided. Any entity designated by the
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Trustee as successor Special Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for a successor Special
Servicer set forth herein. In connection with such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as it and such successor shall agree; provided
that no such compensation shall be in excess of that permitted to the Special
Servicer under this Agreement. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Special Servicer shall cooperate with the Trustee and any
successor Special Servicer in effecting the termination of the Special
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the
assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions hereunder and the transfer to the Trustee or such successor Special
Servicer of all amounts which shall at the time be or should have been deposited
by the Special Servicer in the Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received by the
Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any
other successor Special Servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of the Special
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Special Servicer. The Trustee shall be reimbursed for all of its
out-of-pocket expenses incurred in connection with obtaining such successor
Special Servicer by the Trust within 30 days of submission of an invoice with
respect thereto but only to the extent such expenses have not been reimbursed by
the Special Servicer as provided herein; and such expenses paid by the Trust
shall be deemed to be an Additional Trust Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the Master
Servicer, the Paying Agent or the Special Servicer, or appointment of a
successor to the Master Servicer, the Paying Agent or the Special Servicer, the
Trustee shall promptly mail notice thereof by first class mail to the Rating
Agencies and the Certificateholders at their respective addresses appearing on
the Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT.
(a) The Trustee hereby represents and warrants as of the Closing Date
that:
(i) the Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this
Agreement have been duly authorized by all necessary action on the part of the
Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this
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Agreement, nor compliance with the provisions of this Agreement, will conflict
with or result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on the Trustee or its properties that would materially and adversely
affect the Trustee's ability to perform its obligations under this Agreement,
(ii) the organizational documents of the Trustee, or (iii) the terms of any
material agreement or instrument to which the Trustee is a party or by which it
is bound; the Trustee is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Trustee
of this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and delivered by
the Trustee and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally as from
time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of the Closing
Date that:
(i) the Fiscal Agent is a foreign banking corporation duly
organized, validly existing and in good standing under the laws
governing its creation and existence and has full corporate power and
authority to own its property, to carry on its business as presently
conducted, and to enter into and perform its obligations under this
Agreement;
(ii) the execution and delivery by the Fiscal Agent of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Fiscal Agent; neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated
in this Agreement, nor compliance with the provisions of this
Agreement, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Fiscal Agent or
its properties that would materially and adversely affect the Fiscal
Agent's ability to perform its obligations under this Agreement, (ii)
the organizational documents of the Fiscal Agent, or (iii) the terms of
any material agreement
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or instrument to which the Fiscal Agent is a party or by which it is
bound; the Fiscal Agent is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency, which default would
materially and adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the Fiscal
Agent of this Agreement and the consummation of the transactions
contemplated by this Agreement do not require the consent, approval,
authorization or order of, the giving of notice to, or the registration
with, any state, federal or other governmental authority or agency,
except such as has been obtained, given, effected or taken prior to the
date hereof;
(iv) this Agreement has been duly executed and delivered by
the Fiscal Agent and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid and binding
obligation of the Fiscal Agent, enforceable against the Fiscal Agent in
accordance with its terms, subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and other
similar laws affecting creditors' rights generally as from time to time
in effect, and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
and
(v) no litigation is pending or, to the Fiscal Agent's
knowledge, threatened, against the Fiscal Agent that, either in any one
instance or in the aggregate, would draw into question the validity of
this Agreement, or which would be likely to impair materially the
ability of the Fiscal Agent to perform under the terms of this
Agreement.
(c) The Paying Agent hereby represents and warrants as of the Closing
Date that:
(i) the Paying Agent is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent of this
Agreement have been duly authorized by all necessary action on the part of the
Paying Agent; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Paying
Agent or its properties that would materially and adversely affect the Paying
Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Paying Agent, or (iii) the terms of any material
agreement or instrument to which the Paying Agent is a party or by which it is
bound; the Paying Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental
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agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the Paying
Agent of this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or order of,
the giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Paying Agent to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by
the Paying Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Paying
Agent, enforceable against the Paying Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or, to
the best of the Paying Agent's knowledge, threatened, against the Paying Agent
that, either in one instance or in the aggregate, would draw into question the
validity of this Agreement, or which would be likely to impair materially the
ability of the Paying Agent to perform under the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT. Each of the
Trustee, the Fiscal Agent and the Paying Agent, at its own respective expense,
shall maintain in effect a Fidelity Bond and a Errors and Omissions Insurance
Policy. The Errors and Omissions Insurance Policy and Fidelity Bond shall be
issued by a Qualified Insurer in form and in amount customary for trustees,
fiscal agents or paying agents in similar transactions (unless the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, self insures as provided
below). In the event that any such Errors and Omissions Insurance Policy or
Fidelity Bond ceases to be in effect, the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, shall obtain a comparable replacement policy
or bond from an insurer or issuer meeting the requirements set forth above as of
the date of such replacement. So long as the long-term debt rating of the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, is not less
than two rating categories (ignoring pluses or minuses) lower than the highest
rating of the Certificates, but in any event not less than "A1" as rated by
Xxxxx'x and "A" as rated by DCR, if rated by DCR, respectively, the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, may self-insure for the
Fidelity Bond and the Errors and Omissions Insurance Policy.
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ARTICLE VIII
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
the Master Servicer shall service and administer the Mortgage Loans in
accordance with the Servicing Standard and the terms of this Agreement.
In connection with such servicing and administration, the Master
Servicer shall seek to maximize the timely recovery of principal and interest on
the Mortgage Notes in the best economic interests of the Certificateholders as a
whole; provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Master Servicer of the collectibility of
payments on the Mortgage Loans or shall be construed as impairing or adversely
affecting any rights or benefits specifically provided by this Agreement to the
Master Servicer, including with respect to Servicing Fees or the right to be
reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in clause
(x) of this subclause (b), and the Special Servicer, in the case of an event
specified in clause (y) of this subclause (b), shall each send a written notice
to the other and to the Trustee and the Paying Agent within two Business Days
after becoming aware (x) that a Servicing Transfer Event has occurred with
respect to a Mortgage Loan or (y) that a Mortgage Loan has become a
Rehabilitated Mortgage Loan, which notice shall identify the applicable Mortgage
Loan and, in the case of an event specified in clause (x) of this subclause (b)
above, the Servicing Transfer Event that occurred.
(c) The Master Servicer covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by the Master
Servicer and used by the Master Servicer in the course of operation or
management of, or the compiling, reporting or generation of date required by
this Agreement will not contain any deficiency (x) in the ability of such
software or hardware to identify correctly or perform calculations or other
processing with respect to dates after December 31, 1999 or (y) that would cause
such software to be fit no longer for the purpose for which it was intended by
reason of the changing of the date from 1999 to 2000.
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE MASTER Servicer. The Master Servicer, at its expense, shall
maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions
Insurance Policy. The Servicer Errors and Omissions Insurance Policy and
Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the Master
Servicer self insures as provided below) and be in form and amount consistent
with the Servicing Standard. In the event that any such Servicer Errors and
Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the
Master Servicer shall obtain a comparable replacement policy or bond from an
insurer or issuer meeting the requirements set forth above as of the date of
such replacement. So long as the long-term rating
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of the Master Servicer is not less than two rating categories (ignoring pluses
or minuses) lower than the highest rating of the Certificates, but in any event
not less than "A2" as rated by Xxxxx'x and "A" as rated by DCR, respectively,
the Master Servicer may self-insure for the Servicer Fidelity Bond and the
Servicer Errors and Omissions Insurance Policy.
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The Master Servicer shall service and administer the Mortgage Loans
and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII hereof and
as otherwise provided herein and by the Code, have full power and authority to
do any and all things which it may deem necessary or desirable in connection
with such servicing and administration in accordance with the Servicing
Standard. To the extent consistent with the foregoing and subject to any express
limitations and provisions set forth in this Agreement, the Master Servicer
shall have full power and authority with respect to each Mortgage Loan and
Mortgaged Property (other than any Specially Serviced Mortgaged Loan and the
related Mortgaged Property or any REO Property) to do or cause to be done any
and all things that it may deem necessary or desirable in connection with such
servicing and administration, including but not limited to, the power and
authority, subject to the terms hereof, (A) to execute and deliver, on behalf of
the Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents (including, without limitation, estoppel certificates,
financing statements, continuation statements, title endorsements and reports
and other documents and instruments necessary to preserve and maintain the lien
on the related Mortgaged Property and related collateral), (B) to consent to
assignments and assumptions or substitutions, and transfers of interest of any
Mortgagor, in each case subject to and in accordance with the terms of the
related Mortgage Loan and Section 8.7, (C) to collect any Insurance Proceeds and
Liquidation Proceeds, (D) to consent to any subordinate financings to be secured
by any related Mortgaged Property to the extent that such consent is required
pursuant to the terms of the related Mortgage or which otherwise is required and
to administer and monitor the application of such proceeds and awards in
accordance with the terms of the Mortgage Loan as the Master Servicer deems
reasonable under the circumstances, (E) to consent to the application of any
proceeds of insurance policies or condemnation awards to the restoration of the
related Mortgaged Property or otherwise, (F) to bring an action in a court of
law or equity to enforce rights of the Trustee and the Certificateholders with
respect to the related Mortgaged Properties, (G) to execute and deliver, on
behalf of the Certificateholders and the Trustee, documents relating to the
management, operation, maintenance, repair, leasing and marketing of the related
Mortgaged Properties, including agreements and requests by the Mortgagor with
respect to modifications of the standards of operation and management of the
Mortgaged Properties or the replacement of asset managers, (H) to obtain,
release, waive or modify any term other than a Money Term of a Mortgage Loan and
related documents subject to and to the extent permitted by Section 8.18, (I) to
exercise all rights, powers and privileges granted or provided to the holder of
the Mortgage Notes under the terms of the Mortgage, including all rights of
consent or approval thereunder, (J) to enter into lease subordination
agreements, non-disturbance and attornment agreements or other leasing or rental
arrangements which may be requested by the Mortgagor or the Mortgagor's tenants,
(K) to join the Mortgagor in granting, modifying or releasing any easements,
covenants, conditions, restrictions, equitable servitudes, or land use or zoning
requirements with respect to the Mortgaged Properties to the extent such does
not adversely affect the value of the related Mortgage Loan or Mortgaged
Property, (L) to execute and deliver,
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on behalf of itself, the Trustee, the Trust or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties, and (M) hold in accordance
with the terms of any Mortgage Loan and this Agreement, Defeasance Collateral.
Notwithstanding the above, the Master Servicer shall have no power to (i) waive
any Prepayment Premiums or (ii) consent to any modification of a Money Term of a
Mortgage Loan. Nothing contained in this Agreement shall limit the ability of
the Master Servicer to lend money to (to the extent not secured, in whole or in
part, by any Mortgaged Property), accept deposits from and otherwise generally
engage in any kind of business or dealings with any Mortgagor as though the
Master Servicer was not a party to this Agreement or to the transactions
contemplated hereby; provided, however, that this sentence shall not modify the
Servicing Standard.
(b) The Master Servicer shall not be obligated to service and
administer the Mortgage Loans which have become and continue to be Specially
Serviced Mortgage Loans, except as specifically provided herein. The Master
Servicer shall be required to make all calculations and prepare all reports
required hereunder with respect to such Specially Serviced Mortgage Loans (other
than calculations and reports expressly required to be made by the Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing and P&I Advances as
set forth herein and to render such incidental services with respect to such
Specially Serviced Mortgage Loans, all as are specifically provided for herein,
but shall have no other servicing or other duties with respect to such Specially
Serviced Mortgage Loans. The Master Servicer shall give notice within three
Business Days to the Special Servicer of any collections it receives from any
Specially Serviced Mortgage Loans, subject to changes agreed upon from time to
time by the Special Servicer and the Master Servicer. The Special Servicer shall
instruct within one Business Day after receiving such notice the Master Servicer
on how to apply such funds. The Master Servicer within one Business Day after
receiving such instructions shall apply such funds in accordance with the
Special Servicer's instructions. Each Mortgage Loan that becomes a Specially
Serviced Mortgage Loan shall continue as such until such Mortgage Loan becomes a
Rehabilitated Mortgage Loan. The Master Servicer shall not be required to
initiate extraordinary collection procedures or legal proceedings with respect
to any Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee will
sign the Power of Attorney attached hereto as Exhibit S-1. The Master Servicer,
shall promptly notify the Trustee of the execution and delivery of any document
on behalf of the Trustee under such Power-of-Attorney. From time to time until
the termination of the Trust, upon receipt of written request of the Master
Servicer, the Trustee shall furnish the Master Servicer with any additional
powers of attorney and other documents necessary or appropriate to enable the
Master Servicer to service and administer the Mortgage Loans including, without
limitation, documents relating to the management, operation, maintenance,
repair, leasing or marketing of the Mortgaged Properties. The Master Servicer
shall indemnify the Trustee for any costs, liabilities and expenses (including
attorneys' fees) incurred by the Trustee in connection with the intentional or
negligent misuse of such power of attorney by the Master Servicer.
(d) The Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and
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provisions of the applicable Mortgage Loans (other than Specially Serviced
Mortgage Loans or REO Properties).
(e) The Master Servicer shall segregate and hold all funds collected
and received pursuant to any Mortgage Loan constituting Escrow Amounts separate
and apart from any of its own funds and general assets and shall establish and
maintain one or more segregated custodial accounts (each, an "Escrow Account")
into which all Escrow Amounts shall be deposited within one (1) Business Day
after receipt. The Master Servicer shall also deposit into each Escrow Account
any amounts representing losses on Eligible Investments pursuant to the
immediately succeeding paragraph and any Insurance Proceeds or Liquidation
Proceeds which are required to be applied to the restoration or repair of any
Mortgaged Property pursuant to the related Mortgage Loan. Each Escrow Account
shall be maintained in accordance with the requirements of the related Mortgage
Loan and in accordance with the Servicing Standard. Withdrawals from an Escrow
Account may be made by the Master Servicer only:
(i) to effect timely payments of items constituting Escrow
Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account to reimburse
the Master Servicer for any Advance relating to Escrow Amounts, but only from
amounts received with respect to the related Mortgage Loan which represent late
collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the
related Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any
interest or investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Mortgagor under applicable law
or by the terms of the Mortgage Loan, or otherwise to the Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that
were not required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding sentence, (i) the Master Servicer
may direct any depository institution or trust company in which the Escrow
Accounts are maintained to invest the funds held therein in one or more Eligible
Investments; provided, however, that such funds shall be either (x) immediately
available or (y) available in accordance with a schedule which will permit the
Master Servicer to meet the payment obligations for which the Escrow Account was
established; (ii) the Master Servicer shall be entitled to all income and gain
realized from any such investment of funds as additional servicing compensation;
and (iii) the Master Servicer shall deposit from its own funds in the applicable
Escrow Account the amount of any loss incurred in respect of any such investment
of funds immediately upon the realization of such loss. The Master Servicer
shall not direct the investment of funds held in any Escrow
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Account and retain the income and gain realized therefrom if the terms of the
related Mortgage Loan or applicable law permit the Mortgagor to be entitled to
the income and gain realized from the investment of funds deposited therein, and
the Master Servicer shall not be required to invest amounts on deposit in Escrow
Accounts in Eligible Investments or Eligible Accounts to the extent that the
Master Servicer is required by either law or under the terms of any related
Mortgage Loan to deposit or invest such amounts in another type of investments
or accounts. In the event the Master Servicer is not entitled to direct the
investment of such funds, (1) the Master Servicer shall direct the depository
institution or trust company in which such Escrow Accounts are maintained to
invest the funds held therein in accordance with the Mortgagor's written
investment instructions, if the terms of the related Mortgage Loan or applicable
law require the Master Servicer to invest such funds in accordance with the
Mortgagor's directions; and (2) in the absence of appropriate written
instructions from the Mortgagor, the Master Servicer shall have no obligation
to, but may be entitled to, direct the investment of such funds; provided,
however, that in either event (i) such funds shall be either (y) immediately
available or (z) available in accordance with a schedule which will permit the
Master Servicer to meet the payment obligations for which the Escrow Account was
established, and (ii) the Master Servicer shall have no liability for any loss
in investments of such funds that are invested pursuant to written instructions
from the Mortgagor.
(f) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and to each other under this Agreement is intended by
the parties to be that of an independent contractor and not of a joint venturer,
partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms of the
related Mortgage Loan, any Lock-Box Agreement or similar agreement, the Master
Servicer shall establish and maintain, in accordance with the Servicing
Standard, one or more lock-box, cash management or similar accounts ("Lock-Box
Accounts") to be held outside the Trust and maintained by the Master Servicer in
accordance with the terms of the related Mortgage. No Lock-Box Account is
required to be an Eligible Account. The Master Servicer shall apply the funds
deposited in such accounts in accordance with terms of the related Mortgage, any
Lock-Box Agreement and in accordance with the Servicing Standard.
(h) The Master Servicer shall not permit defeasance of any Mortgage
Loan on or before the second anniversary of the Closing Date unless such
defeasance will not result in an Adverse REMIC Event and the Master Servicer has
received an opinion of counsel to such effect and all items in the following
sentence have been satisfied. Subsequent to the second anniversary of the
Closing Date, to the extent that the Master Servicer can, in accordance with the
related Mortgage Loan, require defeasance of any Mortgage Loan in lieu of
accepting a prepayment of principal thereunder, including a prepayment of
principal accompanied by a Prepayment Premium, if any, the Master Servicer
shall, to the extent it is not inconsistent with the Servicing Standard, require
such defeasance, provided that (i) the defeasance collateral consists of U.S.
Treasury obligations, (ii) the Master Servicer has determined that the
defeasance will not result in an Adverse REMIC Event, (iii) either (A) the
related Mortgagor designates a Single-Purpose Entity (if the Mortgagor no longer
complies) to own the Defeasance Collateral or (B) the Master Servicer has
established for the benefit of the Trust a Single-Purpose Entity to hold all
Defeasance Collateral relating to the Defeasance Loans, and (iv) the Master
Servicer has requested and received from the Mortgagor (A) an opinion of counsel
generally to the effect that
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the Trustee will have a perfected, first priority security interest in such
Defeasance Collateral and (B) written confirmation from a firm of independent
accountants stating that payments made on such Defeasance Collateral in
accordance with the terms thereof will be sufficient to pay the subject Mortgage
Loan in full on or before its Maturity Date (or, in the case of an
Hyper-Amortization Loan, on or before its Anticipated Repayment Date) and to
timely pay each Scheduled Payment to be due prior thereto but after the
defeasance. If the terms of the Mortgage Loan permit the Master Servicer to
impose the foregoing requirements, no Rating Agency Confirmation from DCR is
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 Rating
Agency Confirmation from DCR and Xxxxx'x in connection with such Defeasance
Loan. Any customary and reasonable out-of-pocket expense incurred by the Master
Servicer pursuant to this Section 8.3(h) shall be paid by the Mortgagor of the
Defeasance Loan pursuant to the related Mortgage, Mortgage Note or other
pertinent document, if so allowed by the terms of such documents.
(i) The Master Servicer shall, as to each Mortgage Loan which
is secured by the interest of the related Mortgagor under a ground lease,
promptly (and in any event within 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
Master Servicer.
SECTION 8.4 SUB-SERVICING. The Master Servicer may appoint one or more
sub-servicers (each, a "Sub-Servicer") to perform all or any portion of its
duties hereunder for the benefit of the Trustee and the Certificateholders. The
Master Servicer shall supervise, administer, monitor, enforce and oversee the
servicing of the applicable Mortgage Loans by any Sub-Servicer appointed by it.
The terms of any arrangement or agreement between the Master Servicer and a
Sub-Servicer, shall provide that such agreement or arrangement may be
terminated, without cause and without the payment of any termination fees, by
the Trustee in the event such Master Servicer is terminated in accordance with
this Agreement. In addition, neither the Trustee nor the Paying Agent nor the
Certificateholders shall have any direct obligation or liability (including,
without limitation, indemnification obligations) with respect to any
Sub-Servicer. The Master Servicer shall pay the costs of enforcement against any
of its Sub-Servicers at its own expense, but shall be reimbursed therefor only
(i) from a general recovery resulting from such enforcement only to the extent
that such recovery exceeds all amounts due in respect of the related Mortgage
Loans or (ii) from a specific recovery of costs, expenses or attorneys fees
against the party against whom such enforcement is directed. Notwithstanding the
provisions of any Sub-Servicing Agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer or
a Sub-Servicer, or reference to actions taken through a Sub-Servicer or
otherwise, the Master Servicer shall remain obligated and liable to the Trustee
and the Certificateholders for the servicing and administering of the applicable
Mortgage Loans in accordance with (and subject to the limitations contained
within) the provisions of this Agreement without diminution of such obligation
or liability by virtue of indemnification from a Sub-Servicer and to the same
extent and under the same terms and conditions as if the Master Servicer alone
were servicing and administering the Mortgage Loans.
SECTION 8.5 MASTER SERVICER MAY OWN CERTIFICATES. The Master Servicer
and any agent of the Master Servicer in its individual or any other capacity may
become the
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owner or pledgee of Certificates with the same rights it would have if it were
not the Master Servicer or such agent; provided, however that if the Master
Servicer is Xxxxx Fargo Bank, National Association, then the Master Servicer may
not purchase any Certificate for a price greater than such Certificates' fair
market value. Any such interest of the Master Servicer or such agent in the
Certificates shall not be taken into account when evaluating whether actions of
the Master Servicer are consistent with its obligations in accordance with the
Servicing Standard regardless of whether such actions may have the effect of
benefiting the Class or Classes of Certificates owned by the Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE, TAXES AND
OTHER. Subject to the limitations set forth below, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause the related
Mortgagor to maintain for each Mortgage Loan (other than any REO Mortgage Loan),
and if the related Mortgagor does not so maintain, the Master Servicer shall
cause to be maintained with a Qualified Insurer, (A) a Standard Hazard Insurance
Policy which does not provide for reduction due to depreciation in an amount
that is at least equal to the lesser of (i) the full replacement cost of
improvements securing such Mortgage Loan or (ii) the outstanding principal
balance of such REO Mortgage Loan, but, in any event, in an amount sufficient to
avoid the application of any co-insurance clause and (B) any other insurance
coverage for a Mortgage Loan which the related Mortgagor is required to maintain
under the related Mortgage, provided the Master Servicer shall not be required
to maintain earthquake insurance on any Mortgaged Property unless such insurance
was required at origination and is available at commercially reasonable rates;
provided, however, that the Special Servicer shall have the right, but not the
duty, to obtain, at its own expense, earthquake insurance on any Mortgaged
Property.
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
Mortgaged Property is located in a designated special flood hazard area by the
Federal Emergency Management Agency in the Federal Register, as amended from
time to time (to the extent permitted under the related Mortgage Loan or as
required by law), the Master Servicer (with respect to any Mortgaged Property
that is not an REO Property) shall cause flood insurance to be maintained. Such
flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan or (ii) the maximum amount of
such insurance available for the related Mortgaged Property under the national
flood insurance program, if the area in which such Mortgaged Property is located
is participating in such program. Any amounts collected by the Master Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or property thus acquired or amounts
released to the Mortgagor in accordance with the terms of the applicable
Mortgage Loan) shall be deposited in the Certificate Account.
Any cost (such as insurance premiums and insurance broker fees but not
internal costs and expenses of obtaining such insurance) incurred by the Master
Servicer in maintaining any insurance pursuant to this Section 8.6 shall not,
for the purpose of calculating monthly distributions to the Certificateholders
or remittances to the Paying Agent for their benefit, be added to the principal
balance of the Mortgage Loan, notwithstanding that the terms of the
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Mortgage Loan so permit. Such costs shall be paid as a Servicing Advance by the
Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no obligation
beyond using its reasonable efforts consistent with the Servicing Standard to
enforce such insurance requirements. Furthermore, the Master Servicer shall not
be required in any event to maintain or obtain insurance coverage beyond what is
reasonably available at a cost customarily acceptable and consistent with the
Servicing Standard. The Master Servicer shall notify the Trustee in the event it
makes such determination.
The Master Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 8.6 either (i) if the Master Servicer
shall have obtained and maintained a master force placed or blanket insurance
policy insuring against hazard losses on all of the applicable Mortgage Loans
serviced by it, it being understood and agreed that such policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the Servicing
Standard, and provided that such policy is issued by a Qualified Insurer with a
minimum claims paying ability rating of "A" (or an equivalent rating) from the
Rating Agencies or otherwise approved by the Rating Agencies or (ii) if the
Master Servicer, provided that its long-term rating is not less than "Baa2" by
Xxxxx'x and "BBB" by DCR, self-insures for its obligations as set forth in the
first paragraph of this Section 8.6. In the event that the Master Servicer shall
cause any Mortgage Loan to be covered by such a master force placed or blanket
insurance policy, the incremental cost of such insurance allocable to such
Mortgage Loan (i.e., other than any minimum or standby premium payable for such
policy whether or not any Mortgage Loan is then covered thereby), if not borne
by the related Mortgagor, shall be paid by the Master Servicer as a Servicing
Advance. If such policy contains a deductible clause, the Master Servicer shall,
if there shall not have been maintained on the related Mortgaged Property a
policy complying with this Section 8.6 and there shall have been a loss that
would have been covered by such policy, deposit in the Certificate Account the
amount not otherwise payable under such master force placed or blanket insurance
policy because of such deductible clause to the extent that such deductible
exceeds (i) the deductible under the related Mortgage Loan or (ii) if there is
no deductible limitation required under the Mortgage Loan, the deductible amount
with respect to insurance policies generally available on properties similar to
the related Mortgaged Property which is consistent with the Servicing Standard,
and deliver to the Trustee an Officer's Certificate describing the calculation
of such amount. In connection with its activities as administrator and servicer
of the Mortgage Loans, the Master Servicer agrees to present, on its behalf and
on behalf of the Trustee, claims under any such master force placed or blanket
insurance policy.
With respect to each Mortgage Loan, the Master Servicer shall
maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. From time to time, the Master Servicer
(other than with respect to REO Mortgage Loans) shall (i) obtain all bills for
the payment of such items (including renewal premiums), and (ii) effect payment
of all such bills, taxes and other assessments with respect to such Mortgaged
Properties prior to the applicable penalty or termination date, in each case
employing for such purpose Escrow Amounts as allowed under the terms of the
related Mortgage Loan. If a Mortgagor fails to make
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any such payment on a timely basis or collections from the Mortgagor are
insufficient to pay any such item before the applicable penalty or termination
date, the Master Servicer in accordance with the Servicing Standard shall use
its reasonable efforts to pay as a Servicing Advance the amount necessary to
effect the payment of any such item, subject to Section 4.4 hereof. No costs
incurred by the Master Servicer, the Trustee or the Fiscal Agent as the case may
be, in effecting the payment of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall, for the purpose of calculating
distributions to Certificateholders, be added to the principal balance of the
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.
(a) In the event the Master Servicer receives a request from a
Mortgagor pursuant to the provisions of any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that expressly permits the assignment of the
related Mortgaged Property to, and assumption of such Mortgage Loan by, another
Person, the Master Servicer shall obtain relevant information for purposes of
evaluating such request. If the Master Servicer recommends to approve such
assignment, the Master Servicer shall provide to the Special Servicer a copy of
such recommendation and the materials upon which such recommendation is based
and (A) the Special Servicer shall have the right hereunder to grant or withhold
consent to any such request for such assignment and assumption in accordance
with the terms of the Mortgage Loan and this Agreement, and the Special Servicer
shall not unreasonably withhold such consent and any such decision of the
Special Servicer shall be in accordance with the Servicing Standard, (B) failure
of the Special Servicer to notify the Master Servicer in writing, within three
Business Days following the Master Servicer's delivery of the recommendation
described above and the relevant loan information on which the recommendation is
based, of its determination to grant or withhold such consent shall be deemed to
constitute a grant of such consent and (C) the Master Servicer shall not permit
any such assignment or assumption unless it has received the written consent of
the Special Servicer or such consent has been deemed to have been granted as
described in the preceding sentence. Upon consent or deemed consent by the
Special Servicer to such proposed assignment and assumption, the Master Servicer
shall process such request of the related Mortgagor and shall be authorized to
enter into an assignment and assumption or substitution agreement with the
Person to whom the related Mortgaged Property has been or is proposed to be
conveyed, and/or release the original Mortgagor from liability under the related
Mortgage Loan and substitute as obligor thereunder the Person to whom the
related Mortgaged Property has been or is proposed to be conveyed; provided,
however, that the Master Servicer shall not enter into any such agreement to the
extent that any terms thereof would result in an Adverse REMIC Event or create
any lien on a Mortgaged Property that is senior to, or on parity with, the lien
of the related Mortgage. To the extent permitted by applicable law, the Master
Servicer shall not enter into such an assumption or substitution agreement
unless the credit status of the prospective new Mortgagor is in compliance with
the Master Servicer's regular commercial mortgage origination or servicing
standards and criteria. The Master Servicer shall notify the Trustee, the Paying
Agent and the Special Servicer of any assignment and assumption or substitution
agreement executed pursuant to this Section 8.7(a). The Master Servicer shall be
entitled to (as additional servicing compensation) 50% of any assumption fee
collected from a Mortgagor in connection with an assignment and assumption or
substitution executed pursuant to
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this Section 8.7(a) and the Special Servicer shall be entitled to (as additional
special servicing compensation) the other 50% of such fee.
(b) Other than with respect to the assignment and assumptions
referred to in subsection (a) above, if any Mortgage Loan that is not a
Specially Serviced Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, (i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale of the related
Mortgaged Property, or (ii) provides that such Mortgage Loan may not be assumed
without the consent of the related mortgagee in connection with any such sale or
other transfer,
then, the Special Servicer, on behalf of the Trust, and not the Master Servicer,
shall either (i) enforce such due-on-sale clause or (ii) if it believes such
action would be in the best economic interest of the Trust, waive the effect of
such provision; provided, however, that if the Principal Balance of such
Mortgage Loan at such time equals or exceeds 2% of the Aggregate Certificate
Balance, but, in any case, at least $2.5 million (the "Review Threshold"), then
prior to waiving the effect of such provision, the Special Servicer shall obtain
Rating Agency Confirmation regarding such waiver. The Rating Agencies shall
respond to such request in a reasonable period of time. In connection with the
request for such consent, the Special Servicer shall prepare and deliver to DCR
and Xxxxx'x a memorandum outlining its analysis and recommendation in accordance
with the Servicing Standard, together with copies of all relevant documentation.
The Special 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 Review Threshold, but for which the Special Servicer's
decision will be sufficient and a Rating Agency Confirmation is not required.
The Special Servicer shall promptly forward copies of the assignment and
assumption documents relating to any Mortgage Loan to the Master Servicer, the
Paying Agent and the Trustee, and the Master Servicer shall promptly thereafter
forward such documents to the Rating Agencies. The Special Servicer shall be
entitled to (as additional special servicing compensation) 100% of any fee
collected from a Mortgagor in connection with the Special Servicer granting or
withholding such consent.
(c) The Master Servicer shall have the right to consent to any
transfers of interest of a Mortgagor, to the extent such transfer is allowed
under the terms of the related Mortgage Loan, including any consent to transfer
to any subsidiary or affiliate of Mortgagor or to a person acquiring less than a
majority interest in the Mortgagor. The Master Servicer shall be entitled to
collect and receive from Mortgagors any customary fees in connection with such
transfers of interest as additional servicing compensation.
(d) The Trustee for the benefit of the Certificateholders shall
execute any necessary instruments in the form presented to it by the Master
Servicer (pursuant to subsection (a)) or the Special Servicer (pursuant to
subsection (b)) for such assignments and assumptions agreements. Upon the
closing of the transactions contemplated by such documents, the Master Servicer
shall cause the originals of the assignment and assumption agreement, the
release (if any), or the modification or supplement to the Mortgage Loan to be
delivered to the Trustee except to the extent such documents have been submitted
to the recording office, in which event the Master Servicer shall promptly
deliver copies of such documents to the Trustee and the Special Servicer.
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SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, satisfaction or discharge in full
of any Specially Serviced Mortgage Loan or the receipt by the Master Servicer of
a notification that payment in full (or such payment, if any, in connection with
the satisfaction and discharge in full of any Specially Serviced Mortgage Loan)
will be escrowed in a manner customary for such purposes, and upon notification
by the Master Servicer in the form of a certification (which certification shall
include a statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Certificate Account have been or will be so deposited) of a Servicing Officer
and a request for release of the Trustee Mortgage File in the form of Exhibit C
hereto the Trustee shall promptly release the related Trustee Mortgage File to
the Master Servicer and the Trustee shall execute and deliver to the Master
Servicer the deed of reconveyance or release, satisfaction or assignment of
mortgage or such instrument releasing the lien of the Mortgage, as directed by
the Master Servicer together with the Mortgage Note with written evidence of
cancellation thereon. The provisions of the immediately preceding sentence shall
not, in any manner, limit or impair the right of the Master Servicer to execute
and deliver, on behalf of the Trustee, the Certificateholders or any of them,
any and all instruments of satisfaction, cancellation or assignment without
recourse, representation or warranty, or of partial or full release or discharge
and all other comparable instruments, with respect to the Mortgage Loans, and
with respect to the Mortgaged Properties held for the benefit of the
Certificateholders. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Distribution
Account but shall be paid by the Master Servicer except to the extent that such
expenses are paid by the related Mortgagor in a manner consistent with the terms
of the related Mortgage and applicable law. From time to time and as shall be
appropriate for the servicing of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any Servicer Fidelity Bond or
Errors or Omissions Policy, or for the purposes of effecting a partial or total
release of any Mortgaged Property from the lien of the Mortgage or the making of
any corrections to the Mortgage Note or the Mortgage or any of the other
documents included in the Trustee Mortgage File, the Trustee shall, upon request
of the Master Servicer and the delivery to the Trustee of a Request for Release
signed by a Servicing Officer, in the form of Exhibit C hereto, release the
Trustee Mortgage File to the Master Servicer or the Special Servicer, as the
case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, the Master Servicer
shall transmit to the Trustee, to the extent required by this Agreement, all
documents and instruments coming into the possession of the Master Servicer from
time to time and shall account fully to the Trustee and Paying Agent for any
funds received or otherwise collected thereby, including Liquidation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Servicer Mortgage Files
and funds collected or held by, or under the control of, the Master Servicer in
respect of any Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds or Insurance Proceeds, including
any funds on deposit in the Certificate Account, shall be held by the Master
Servicer for and on behalf of the Trustee and the Certificateholders and shall
be and remain the sole and exclusive property of the Trustee, subject to the
applicable provisions of this Agreement. The Master Servicer agrees that it
shall not create, incur or subject any Servicer Mortgage Files or Trustee
Mortgage File or any funds that
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are deposited in the Certificate Account or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee or the Paying
Agent, to any claim, lien, security interest, judgment, levy, writ of attachment
or other encumbrance, or assert by legal action or otherwise any claim or right
of setoff against any Servicer Mortgage Files or Trustee Mortgage File or any
funds collected on, or in connection with, a Mortgage Loan, except, however,
that the Master Servicer shall be entitled to receive from any such funds any
amounts that are properly due and payable to the Master Servicer under this
Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to the Servicing Fee, which shall be payable by the
Trust from amounts held in the Certificate Account or otherwise collected from
the Mortgage Loans as provided in Section 5.2.
(b) Additional servicing compensation in the form of assumption
fees, extension fees, servicing fees, default interest payable at a rate above
the Mortgage Rate, Modification Fees, forbearance fees, Late Fees (net of
Advance Interest) or other usual and customary charges and fees actually
received from Mortgagors shall be retained by the Master Servicer, provided that
the Master Servicer shall be entitled to (i) receive 50% of assumption fees
collected on Mortgage Loans as provided in Section 8.7(a), (ii) Modification
Fees as provided in Section 8.18 hereof; and (iii) 100% of any extension fees
collected from the related Mortgagor in connection with the extension of the
Maturity Date of any Mortgage Loan as provided in Section 8.18; provided,
however, that the Master Servicer shall not be entitled to any such fees in
connection with any Specially Serviced Mortgage Loans. If the Master Servicer
collects any amount payable to the Special Servicer hereunder in connection with
a REO Mortgage Loan or Specially Serviced Mortgage Loan, the Master Servicer
shall promptly remit such amount to the Special Servicer as provided in Section
5.2. The Master Servicer shall be required to pay all applicable expenses
incurred by it in connection with its servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Servicing Fee
for each monthly period relating to each Determination Date shall be reduced by
an amount equal to the Compensating Interest (if any) relating to Mortgage Loans
which are not Specially Serviced Mortgage Loans for such Determination Date.
(d) The Master Servicer shall also be entitled to additional
servicing compensation of (i) an amount equal to the excess, if any, of the
aggregate Prepayment Interest Excess relating to Mortgage Loans which are not
Specially Serviced Mortgage Loans for each Distribution Date over the aggregate
Prepayment Interest Shortfalls for such Mortgage Loans for such Distribution
Date, (ii) interest or other income earned on deposits in the Certificate
Account and the Distribution Account (but only to the extent of the net
investment earnings, if any, with respect to each such account), and, (iii) to
the extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Escrow Accounts.
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) For each Distribution Date, (i) the Master Servicer shall
deliver to the Paying Agent, no later than the related Report Date, the Master
Servicer Remittance Report with
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respect to such Distribution Date and (ii) the Master Servicer shall deliver to
the Paying Agent on the related Advance Report Date, the amount of P&I Advance
to be made by the Master Servicer on the related Master Servicer Remittance
Date. The Special Servicer is required to provide all information relating to
Specially Serviced Mortgage Loans in order for the Master Servicer to satisfy
its duties in this Section 8.11.
(b) The Master Servicer shall deliver to the Trustee, the Paying
Agent and the Special Servicer within 30 days following each Distribution Date a
statement setting forth the status of the Certificate Account as of the close of
business on such Distribution Date showing, for the period covered by such
statement, the aggregate of deposits in or withdrawals from the Certificate
Account.
(c) The Master Servicer shall promptly inform the Special Servicer
of the name, account number, location and other necessary information concerning
the Certificate Account in order to permit the Special Servicer to make deposits
therein.
(d) The Master Servicer shall deliver to the Rating Agencies, the
Trustee, the Paying Agent, the Special Servicer and the Depositor within 30 days
after receipt any annual, monthly or quarterly financial statements the Master
Servicer receives from any Mortgagor relating to the Mortgage Loans. Except as
provided in Section 8.14, the Master Servicer shall have no duty to conform or
normalize any of the data or information contained in such statements.
(e) The Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to subsection
(a) or subsection (b) of this Section 8.11 to the Depositor, the Special
Servicer and each Rating Agency, in each case upon request by such Person and
only to the extent such reports and information are not otherwise required to be
delivered to such Person under any provision of this Agreement.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Master Servicer
shall deliver to the Depositor, the Paying Agent and the Trustee on or before
the Report Date occurring in May of each year, commencing in May 2000, an
Officer's Certificate stating, as to the signer thereof, that (A) a review of
the activities of the Master Servicer during the preceding calendar year or
portion thereof and of the performance of the Master Servicer under this
Agreement has been made under such officer's supervision and (B) to the best of
such officer's knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. The Master Servicer shall forward a copy of each such
statement to the Rating Agencies.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT. On or before the Report Date occurring in May of each year, commencing
in May 2000, the Master Servicer shall cause a firm of nationally recognized
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Depositor, the
Operating Adviser, the Paying Agent and the Trustee to the effect that such firm
has examined certain documents and records relating to the servicing of the
Mortgage Loans
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and that, on the basis of such examination conducted substantially in compliance
with the Uniform Single Attestation Program for Mortgage Bankers ("USAP") or the
Audit Program for Mortgages serviced for FHLMC (the "FHLMC Audit Program"), the
servicing for the preceding calendar year has been conducted in compliance with
such agreements except for such significant exceptions or errors in records
that, in the opinion of such firm, the USAP or FHLMC Audit Program require it to
report. The Master Servicer shall forward a copy of each such report to the
Rating Agencies.
SECTION 8.14 ANNUAL REPORTS REGARDING THE MORTGAGED PROPERTIES. Not
later than the Report Date occurring in July of each year, beginning in July
2000, the Master Servicer shall deliver to the Trustee, the Paying Agent, the
Placement Agents, the Underwriters, the Rating Agencies, any Operating Adviser
and the Depositor an Annual Report for each Mortgage Loan, based on the most
recently available year-end financial statements and most recently available
rent rolls of each applicable Mortgagor (to the extent provided to the Master
Servicer by or on behalf of each Mortgagor, or, in the case of Specially
Serviced Mortgaged Loans, as provided to the Special Servicer, which Special
Servicer shall forward such information to the Master Servicer on or before
April 15 of each such year), containing such information and analyses for each
Mortgage Loan as would customarily be included in accordance with the Servicing
Standard including, without limitation, Debt Service Coverage Ratios and income.
In addition, upon request the Master Servicer shall make available to the
Special Servicer, the Paying Agent and the Trustee, within 30 days following
receipt thereof by the Master Servicer, copies of any operating statements and
rent rolls collected with respect to the Mortgaged Properties. As and to the
extent reasonably requested by the Special Servicer, the Master Servicer shall
make inquiry of any Mortgagor with respect to such information or as regards the
performance of the related Mortgage Property in general. The Paying Agent shall
provide or make available either electronically or, if requested by a
Certificateholder or Certificate Owner in writing, by first class mail at no
cost to such Certificateholder or Certificate Owner, of such Annual Reports
pursuant to Section 5.4(a).
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF THE
MASTER SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the Master
Servicer shall make available at its offices primarily responsible for servicing
the Mortgage Loans, during normal business hours, upon reasonable advance
written notice for review by any Certificateholder, any Certificate Owner, any
Placement Agent, any Underwriter, each Rating Agency, the Paying Agent or the
Depositor, originals or copies of, among other things, the following items: (i)
this Agreement and any amendments thereto, (ii) all final and released Annual
Reports and the Master Servicer Remittance Reports, (iii) all Officer's
Certificates (including Officer's Certificates evidencing any determination of
Nonrecoverable Advances) delivered to the Trustee and the Paying Agent since the
Closing Date, (iv) all accountants' reports delivered to the Trustee and the
Paying Agent since the Closing Date, (v) the most recent property Inspection
Reports in the possession of the Master Servicer in respect of each Mortgaged
Property, (vi) the most recent Mortgaged Property annual operating statement and
rent roll, if any, collected by or on behalf of the Master Servicer or the
Special Servicer, (vii) any and all modifications, waivers and amendments of the
terms of a Mortgage Loan entered into by the Master Servicer and/or the Special
Servicer, and (viii) any and all Officers' Certificates (and
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attachments thereto) delivered to the Trustee and the Paying Agent to support
the Master Servicer's determination that any Advance was not or, if made, would
not be, recoverable. The Master Servicer will be permitted to require payment of
a sum to be paid by the requesting party (other than the Rating Agencies, the
Trustee, the Paying Agent, Placement Agents or Underwriters) sufficient to cover
the reasonable costs and expenses of making such information available.
(b) Subject to the restrictions described below, the Master Servicer
shall afford the Rating Agencies, the Depositor, the Trustee, the Paying Agent,
the Special Servicer, the Placement Agents, the Underwriters, the Operating
Adviser, any Certificateholder or Certificate Owner, upon reasonable notice and
during normal business hours, reasonable access to all information referred to
in Section 8.15(a) and any additional relevant, non-attorney-client-privileged
records and documentation regarding the applicable Mortgage Loans, REO Property
and all accounts, insurance policies and other relevant matters relating to this
Agreement, and access to Servicing Officers of the Master Servicer responsible
for its obligations hereunder. Copies of information or access will be provided
to Certificateholders and each Certificate Owner providing satisfactory evidence
of ownership of Certificates or beneficial ownership of a Certificate, as the
case may be. Copies (or computer diskettes or other digital or electronic copies
of such information if reasonably available in lieu of paper copies) of any and
all of the foregoing items shall be made available by the Master Servicer upon
request; provided, however, that the Master Servicer shall be permitted to
require payment by the requesting party (other than the Depositor, the Trustee,
the Paying Agent, the Special Servicer either Placement Agent, either
Underwriter, or any Rating Agency) of a sum sufficient to cover the reasonable
expenses actually incurred by the Master Servicer of providing access or copies
(including electronic or digital copies) of any such information requested in
accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require the Master Servicer to
confirm, represent or warrant the accuracy of (or to be liable or responsible
for) any other Person's information or report, included in any communication
from the Special Servicer or Mortgagor. Notwithstanding the above, the Master
Servicer shall not have any liability to the Depositor, the Trustee, the Fiscal
Agent, the Paying Agent, the Special Servicer, any Certificateholder, any
Certificate Owner, either Placement Agent, either Underwriter, any Rating Agency
or any other Person to whom it delivers information pursuant to this Section
8.15 or any other provision of this Agreement for federal, state or other
applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against the Master Servicer (or any employee, attorney,
officer, director or agent thereof), the Trust (from amounts held in any account
or otherwise) shall hold harmless and indemnify the Master Servicer from any
loss or expense (including attorney fees) relating to or arising from such
claims.
(d) The Master Servicer shall produce the reports required of it
under this Agreement; provided, however, that the Master Servicer shall not be
required to produce any ad hoc non-standard written reports with respect to such
Mortgage Loans. In the event the Master Servicer elects to provide such
non-standard reports, it may require the Person requesting such report (other
than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to the Master Servicer making any report or information available upon
request to any Person other than the parties
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hereto, the Master Servicer may require that the recipient of such information
acknowledge that the Master Servicer may contemporaneously provide such
information to the Depositor, the Trustee, the Fiscal Agent, the Special
Servicer, the Paying Agent, either Placement Agent, any Underwriter, any Rating
Agency and/or the Certificateholders or Certificate Owners. Any transmittal of
information by the Master Servicer to any Person other than the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer, the Rating Agencies or
the Depositor may be accompanied by a letter from the Master Servicer containing
the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any person who possesses material, non-public information
regarding the Trust which issued Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1999-WF1 from
purchasing or selling such Certificates in circumstances where the
other party to the transaction is not also in possession of such
information. You also acknowledge and agree that such information is
being provided to you for the purpose of, and such information may
be used only in connection with, evaluation by you or another
Certificateholder, Certificate Owner or prospective purchaser of
such Certificates or beneficial interest therein."
(e) The Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) The Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
SECTION 8.16 RULE 144A INFORMATION. For so long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, the Master Servicer agrees to provide to the Paying Agent
for delivery to any Holder thereof, any Certificate Owner therein and to any
prospective purchaser of the Certificates or beneficial interest therein
reasonably designated by the Paying Agent, upon the request of such
Certificateholder, such Certificate Owner or the Paying Agent, subject to this
Section 8.16 and the provisions of Section 8.15, any information prepared by the
Master Servicer that is required to be provided to such holder or prospective
purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the
Securities Act, including, without limitation, copies of the reports and
information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the Master
Servicer shall be permitted to use the letter referred to in Section 8.15(d).
Unless the Master Servicer chooses to deliver the information
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directly, the Depositor, the Placement Agents, the Underwriters or the Paying
Agent shall be responsible for the physical delivery of the information
requested pursuant to this Section 8.16. As a condition to the Master Servicer
making any report or information available upon request to any Person other than
the parties hereto, the Master Servicer may require that the recipient of such
information acknowledge that the Master Servicer may contemporaneously provide
such information to the Depositor, the Trustee, the Paying Agent, either
Placement Agent, the Underwriters, any Rating Agency and/or the
Certificateholders and Certificate Owners. The Master Servicer will be permitted
to require payment of a sum to be paid by the requesting party (other than the
Rating Agencies, the Trustee, the Paying Agent, Placement Agents or
Underwriters) sufficient to cover the reasonable costs and expenses of making
such information available.
SECTION 8.17 INSPECTIONS. The Master Servicer shall, at its own
expense, inspect or cause to be inspected each Mortgaged Property other than
Mortgaged Properties related to Specially Serviced Mortgage Loans, every
calendar year beginning in 2000, or every second calendar year beginning in 2000
if the principal balance of the related Mortgage Loan is under $2 million. The
Master Servicer shall prepare an Inspection Report relating to each inspection.
The Master Servicer shall promptly forward the applicable Inspection Report to
the Rating Agencies, the Placement Agents, the Underwriters, the Depositor, the
Paying Agent, the Trustee and the Special Servicer. The Special Servicer shall
have the right to inspect or cause to be inspected (at its own expense) every
calendar year any Mortgaged Property related to a Mortgage Loan that is not a
Specially Serviced Mortgage Loan, provided that the Special Servicer notifies
the Master Servicer prior to such inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND
CONSENTS.
Subject to the limitations of Section 12.3 hereof, the Master
Servicer shall have the following powers:
(a) (i) The Master Servicer in accordance with the Servicing
Standard may agree to any modification, waiver, amendment or consent of or
relating to any term other than a Money Term of a Mortgage Loan that is not a
Specially Serviced Mortgage Loan, provided that such amendment would not result
in an Adverse REMIC Event; and provided, further that if any consent relates to
a release of a letter of credit relating to any Mortgage Loan, then (i) the
Master Servicer shall notify the Special Servicer of any Mortgagor's request to
release such letter of credit which the Master Servicer recommends to release,
and (ii) if the terms of the related Mortgage Loan do not require the Master
Servicer to approve such release, then the Special Servicer shall within five
days provide notice to the Master Servicer on whether the Master Servicer should
approve the release and the failure of the Special Servicer to give the Master
Servicer such notice shall automatically be deemed to be an approval by the
Special Servicer that the Master Servicer should grant such release.
Notwithstanding the preceding sentence, from and after the date on which neither
the Master Servicer nor an Affiliate of the Master Servicer has an interest in
any of the Class G, Class H, Class J, Class K, Class L, Class M, Class N and
Class O Certificates, if any such proposed modification, waiver, amendment or
consent is deemed material by the Master Servicer in its reasonable discretion
and the Master Servicer recommends to approve such modification, waiver,
amendment or consent,
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the Master Servicer shall provide to the Special Servicer a copy of the Master
Servicer's recommendation and the relevant information obtained or prepared by
the Master Servicer in connection therewith and (A) the Special Servicer shall
have the right hereunder to grant or withhold consent to any such proposed
modification, waiver, amendment or consent, and such consent of the Special
Servicer shall not be unreasonably withheld, consistent with the Servicing
Standard, (B) failure of the Special Servicer to notify the Master Servicer,
within three Business Days following the Master Servicer's delivery of the
recommendation described above, of its determination to grant or withhold such
consent shall be deemed to constitute a grant of such consent and (C) the Master
Servicer shall not enter into any such proposed modification, waiver, amendment
or consent unless it has received the written consent of the Special Servicer or
such consent has been deemed to have been granted as described above. In any
event, the Master Servicer shall promptly notify the Special Servicer of any
material modification, waiver, amendment or consent executed by the Master
Servicer pursuant to this Section 8.18(a)(i) and provide to the Special Servicer
a copy thereof.
(ii) The Master Servicer may, without the consent of the
Special Servicer, extend the maturity date of any Balloon Mortgage Loan that is
not a Specially Serviced Mortgage Loan to a date that is not more than 60 days
following the original Maturity Date, if in the Master Servicer's sole judgment
exercised in good faith (and evidenced by an Officer's Certificate), a default
in the payment of the Balloon Payment is reasonably foreseeable and such
extension is reasonably likely to produce a greater recovery on a net present
value basis than liquidation of such Mortgage Loan. The Master Servicer shall
process all such extensions and shall be entitled to (as additional servicing
compensation) 100% of any extension fees collected from a Mortgagor with respect
to any such extension.
(b) The Master Servicer may require, in its discretion, as a
condition to granting any request by a Mortgagor for any consent, modification,
waiver or amendment, that such Mortgagor pay to the Master Servicer a reasonable
and customary modification fee to the extent permitted by law. The Master
Servicer may charge the Mortgagor for any costs and expenses (including
attorney's fees) incurred by the Master Servicer in connection with any request
for a modification, waiver or amendment. The failure or inability of the
Mortgagor to pay any such costs and expenses shall not impair the right of the
Master Servicer to cause such costs and expenses, and interest thereon at the
Advance Rate, to be paid or reimbursed by the Trust as a Servicing Advance (to
the extent not paid by the Mortgagor).
(c) The Master Servicer shall notify the Trustee and the Paying
Agent of any modification, waiver or amendment of any term of any Mortgage Loan
permitted by it under this Section and the date thereof, and shall deliver to
the Trustee for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment, promptly
following the execution thereof except to the extent such documents have been
submitted to the applicable recording office, in which event the Master Servicer
shall promptly deliver copies of such documents to the Trustee. The Master
Servicer shall not agree to any modification, waiver, or amendment of any Money
Term of a Mortgage Loan or any term of a Specially Serviced Mortgage Loan.
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SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to the Special
Servicer, the Rating Agencies, the Paying Agent and the Trustee within two
Business Days after becoming aware of a Servicing Transfer Event with respect to
a Mortgage Loan, which notice shall identify the related Mortgage Loan and set
forth in reasonable detail the nature and relevant facts of such Servicing
Transfer Event and, except for the Rating Agencies, the Paying Agent and the
Trustee, shall be accompanied by a copy of the Servicer Mortgage File.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the Special Servicer, the Master Servicer shall notify the
related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
(c) Any calculations or reports prepared by the Master Servicer to
the extent they relate to Specially Serviced Mortgage Loans shall be based on
information supplied to the Master Servicer in writing by the Special Servicer
as provided hereby. The Master Servicer shall have no duty to investigate or
confirm the accuracy of any information provided to it by the Special Servicer
and shall have no liability for the inaccuracy of any of its reports due to the
inaccuracy of the information provided by the Special Servicer.
(d) On or prior to each Distribution Date, the Master Servicer shall
provide to the Special Servicer, in order for the Special Servicer to comply
with its obligations under this Agreement, such information (and in the form and
medium) as the Special Servicer may reasonably request in writing from time to
time, provided that (i) the Master Servicer shall not be required to produce any
ad hoc reports or incur any unusual expense or effort in connection therewith
and (ii) if the Master Servicer elects to provide such ad hoc reports, it may
require the Special Servicer to pay a reasonable fee to cover the costs of the
preparation thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MASTER
SERVICER.
(a) The Master Servicer hereby represents and warrants to and
covenants with the Trustee, as of the date hereof:
(i) the Master Servicer is duly organized, validly existing
and in good standing as a national banking association under the laws of the
United States, and shall be and thereafter remain, 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, except where the failure to so
qualify or comply would not adversely affect the Master Servicer's ability to
perform its obligations hereunder in accordance with the terms of this
Agreement;
(ii) the Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by the Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Fiscal Agent, the Paying Agent and the
Special
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Servicer, evidences the valid and binding obligation of the Master Servicer
enforceable against the Master Servicer in accordance with its terms subject, as
to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, receivership and other similar laws affecting creditors'
rights generally as from time to time in effect, and to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to the Master Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business of the
Master Servicer.
(b) It is understood that the representations and warranties set
forth in this Section 8.20 shall survive the execution and delivery of this
Agreement.
(c) Any cause of action against the Master Servicer arising out of
the breach of any representations and warranties made in this Section shall
accrue upon discovery of such breach by any of the Trustee or the Master
Servicer. The Master Servicer shall give prompt notice to the Trustee, the
Depositor and the Special Servicer of the occurrence, or the failure to occur,
of any event that, with notice or the passage of time or both, would cause any
representation or warranty in this Section to be untrue or inaccurate in any
respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer shall be a party, or any
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Person succeeding to the business of the Master Servicer, shall be the successor
of the Master Servicer hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto; provided, however,
that each of the Rating Agencies provides a Rating Agency Confirmation. If the
conditions to the provisions in the foregoing sentence are not met, the Trustee
may terminate the Master Servicer's servicing of the Mortgage Loans pursuant
hereto, such termination to be effected in the manner set forth in Sections 8.28
and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof, the
Master Servicer shall not resign from the obligations and duties hereby imposed
on it unless it determines that the Master Servicer's 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. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor, shall have assumed the Master
Servicer's responsibilities and obligations under this Agreement and Rating
Agency Confirmation shall have been obtained. Notice of such resignation shall
be given promptly by the Master Servicer to the Trustee.
(b) The Master Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee, provided that (i) a successor
servicer (x) is available, (y) has assets of at least $15,000,000 and (z) is
willing to assume the obligations, responsibilities, and covenants to be
performed hereunder by the Master Servicer on substantially the same terms and
conditions, and for not more than equivalent compensation to that herein
provided; (ii) the Master Servicer bears all costs associated with its
resignation and the transfer of servicing; and (iii) Rating Agency Confirmation
is obtained with respect to such servicing transfer, as evidenced by a letter
delivered to the Trustee by each Rating Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER SERVICER.
The Master Servicer shall have the right without the prior written consent of
the Trustee to (A) delegate or subcontract with or authorize or appoint anyone,
or delegate certain duties to other professionals such as attorneys and
appraisers, as an agent of the Master Servicer or Sub-Servicers (as provided in
Section 8.4) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Master Servicer hereunder or (B) assign and
delegate all of its duties hereunder; provided, however, that with respect to
clause (B), (i) the Master Servicer gives the Depositor, the Special Servicer
and the Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to the
Depositor and the Trustee an agreement accepting such assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer, with like effect as if
originally named as a party to this Agreement; (iii) the purchaser or transferee
has assets in excess of $15,000,000; (iv) such assignment and delegation is the
subject of a Rating Agency Confirmation; and (v) the Depositor consents to such
assignment and delegation, such consent not be unreasonably withheld. In the
case of any such assignment and delegation in accordance with the requirements
of subclause (B) of this Section, the Master Servicer shall be released from its
obligations under this Agreement, except that the Master Servicer shall remain
liable for all
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liabilities and obligations incurred by it as the Master Servicer hereunder
prior to the satisfaction of the conditions to such assignment set forth in the
preceding sentence. Notwithstanding the above, the Master Servicer may appoint
Sub-Servicers in accordance with Section 8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER AND
OTHERS.
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
holders of the Certificates, the Depositor, the Trustee, the Fiscal Agent, the
Paying Agent, the Placement Agents, the Underwriters or the Special Servicer for
any action taken or for refraining from the taking of any action in good faith,
or using reasonable business judgment, consistent with the Servicing Standard;
provided that this provision shall not protect the Master Servicer or any such
person against any breach of a representation or warranty contained herein or
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in its performance of duties under the Agreement or by
reason of negligent disregard of obligations and duties hereunder. The Master
Servicer and any director, officer, employee or agent of the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person (including, without limitation, the Special Servicer)
respecting any matters arising hereunder. The Master Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement; provided that the Master Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee in the
Mortgage Loans (subject to the Special Servicer's servicing of Specially
Serviced Mortgage Loans as contemplated herein), or shall undertake any such
action if instructed to do so by the Trustee. In such event, all legal expenses
and costs of such action shall be expenses and costs of the Trust, and the
Master Servicer shall be entitled to be reimbursed therefor as Servicing
Advances as provided by Section 5.2, subject to the provisions of Section 4.4
hereof.
(b) In addition, the Master Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Master Servicer and conforming to the requirements of
this Agreement. Subject to the Servicing Standard, the Master Servicer shall
have the right to rely on information provided to it by the Special Servicer and
Mortgagors, and will have no duty to investigate or verify the accuracy thereof.
Neither the Master Servicer, nor any director, officer, employee, agent or
Affiliate, shall be personally liable for any error of judgement made in good
faith by any officer, unless it shall be proved that the Master Servicer or such
officer was negligent in ascertaining the pertinent facts. Neither the Master
Servicer nor any director, officer, employee, agent or Affiliate, shall be
personally liable for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer, Trustee or the Fiscal Agent in this Agreement.
The Trust shall indemnify and hold harmless the Master Servicer from any and all
claims, liabilities, costs, charges, fees or other expenses which relate to or
arise from any such
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breach of representation, warranty or covenant to the extent the Master Servicer
is unable to recover such amounts from the Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, 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 or in good faith
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) the Master Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(iii) the Master Servicer shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion, rights or powers conferred
upon it by this Agreement; and
(iv) the Master Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon
any information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper reasonably believed by
it to be genuine and provided by any Mortgagor or manager of a Mortgaged
Property.
(e) The Master Servicer and any director, officer, employee or agent
of the Master Servicer shall be indemnified by the Trustee, the Fiscal Agent,
the Paying Agent and the Special Servicer, as the case may be, and held harmless
against any loss, liability or expense including reasonable attorneys' fees
incurred in connection with any legal action relating to the Trustee's, Fiscal
Agent's, the Paying Agent or the Special Servicer's, as the case may be,
respective willful misfeasance, bad faith or negligence in the performance of
its respective duties hereunder or by reason of negligent disregard of its
respective duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
any of the Master Servicer's duties hereunder or by reason of negligent
disregard of the Master Servicer's obligations and duties hereunder. The Master
Servicer shall immediately notify the Trustee and Paying Agent if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans
entitling the Master Servicer to indemnification hereunder, whereupon the
Trustee or the Paying Agent, as applicable, may assume the defense of any such
claim (with counsel reasonably satisfactory to the Master Servicer) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy and judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Trustee or Paying
Agent shall not affect any rights the Master Servicer or the Trust may have to
indemnification under this Agreement or otherwise, unless the Trustee's or the
Paying Agent's defense of such claim is materially prejudiced thereby. Such
indemnity shall survive the termination of this Agreement or the resignation or
removal of the
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Master Servicer hereunder. Any payment hereunder made by the Trustee, the Fiscal
Agent or the Paying Agent pursuant to this paragraph to the Master Servicer
shall be paid from the Trustee's, Fiscal Agent's or Paying Agent's own funds,
without reimbursement from the Trust therefor except achieved through
subrogation as provided in this Agreement. Any expenses incurred or
indemnification payments made by the Trustee, the Fiscal Agent or Paying Agent
shall be reimbursed by the party so paid, if a court of competent jurisdiction
makes a final judgment that the conduct of the Trustee, the Fiscal Agent or
Paying Agent, as the case may be was not culpable or found to have acted with
willful misfeasance, bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer and any director, officer, employee or agent
of the Master Servicer shall be indemnified by the Trust and held harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to this Agreement, any
Mortgage Loans, any REO Property or the Certificates or any exercise of any
right under this Agreement reasonably requiring the use of counsel or the
incurring of expenses other than any loss, liability or expense incurred by
reason of the Master Servicer's willful misfeasance, bad faith or negligence in
the performance of duties hereunder. The Master Servicer shall promptly notify
the Trustee and the Paying Agent if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Master Servicer to
indemnification hereunder, whereupon the Trustee, on behalf of the Trust, shall
assume the defense of any such claim (with counsel reasonably satisfactory to
the Master Servicer) and out of the Trust pay all expenses in connection
therewith, including counsel fees, and out of the Trust promptly pay, discharge
and satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee and the Paying Agent
shall not affect any rights the Master Servicer may have to indemnification
under this Agreement or otherwise, unless the Trust is prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement.
The Trustee, the Paying Agent or the Master Servicer shall promptly make from
the Certificate Account any payments certified by the Master Servicer to the
Trustee and the Paying Agent as required to be made to the Master Servicer
pursuant to this Section 8.25.
(b) The Master Servicer agrees to indemnify the Trustee, the Fiscal
Agent, the Special Servicer, the Paying Agent, the Trust, the Depositor, and any
director, officer, employee, agent or Controlling Person thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trustee, the Fiscal Agent, the Special Servicer, the
Paying Agent, the Depositor, and the Trust may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
any of the Master Servicer's duties hereunder or by reason of negligent
disregard of the Master Servicer's obligations and duties hereunder (including a
breach of such obligations a substantial motive of which is to obtain an
economic advantage from being released from such obligations), and if in any
such situation the Master Servicer is replaced, the parties hereto agree that
the amount of such claims, losses, penalties, fines, legal fees and related
costs, judgments, and other costs, liabilities, fees and expenses shall at least
equal the incremental costs, if any, of retaining a successor servicer. The
Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent, or the
Depositor, as applicable,
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shall immediately notify the Master Servicer if a claim is made by any Person
with respect to this Agreement or the Mortgage Loans entitling the Trustee, the
Fiscal Agent, the Depositor, the Special Servicer, the Paying Agent, or the
Trust to indemnification under this Section 8.25(b), whereupon the Master
Servicer shall assume the defense of any such claim (with counsel reasonably
satisfactory to the Trustee, the Fiscal Agent, the Special Servicer, the Paying
Agent, or the Depositor, as applicable) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Master Servicer shall not affect any rights
the Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent, the
Depositor, or the Trust may have to indemnification under this Agreement or
otherwise, unless the Master Servicer's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or termination of the Master
Servicer, the Fiscal Agent, the Special Servicer, the Paying Agent, and the
Trustee. Any expenses incurred or indemnification payments made by the Master
Servicer shall be reimbursed by the party so paid, if a court of competent
jurisdiction makes a final, non-appealable judgment that the conduct of the
Master Servicer was not culpable or that the Master Servicer did not act with
willful misfeasance, bad faith or negligence.
(c) The Master Servicer shall indemnify and hold harmless the Trust,
the Trustee, the Fiscal Agent and the Paying Agent, and each of their respective
directors, each of its officers, employees, agents and any Controlling Person of
the Fiscal Agent, the Trustee or the Paying Agent from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Trust, the Trustee, Fiscal Agent or the Paying Agent, or any such
director, officer, employees, agents or such Controlling Person may become
subject, under the 1933 Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement of a
material fact contained in the Preliminary Prospectus Supplement or Final
Prospectus Supplement or in the Private Placement Memorandum, or arises out of,
or is based upon the omission to state therein a material fact necessary to make
the statements therein not misleading, and shall reimburse the Trust, Trustee,
Fiscal Agent or Paying Agent or any such director, officer, employee, agent or
Controlling Person for any legal and other expenses reasonably incurred by the
Trust, the Trustee, the Fiscal Agent, or Paying Agent or any such director,
officer, employee, agent or Controlling Person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action,
but in each case only to the extent that the untrue statement or omission was
made in reliance upon and in conformity with written information concerning the
Master Servicer furnished to the Depositor by or on behalf of the Master
Servicer specifically for inclusion therein. The Trustee, the Fiscal Agent or
the Paying Agent, as applicable, shall immediately notify the Master Servicer if
a claim is made by a third party with respect to this Section 8.25(c) entitling
the Trust or the Trustee, the Fiscal Agent or the Paying Agent, as the case may
be, or any of its directors, officers, employees, agents or Controlling Persons,
as the case may be, to indemnification hereunder, whereupon the Master Servicer
shall assume the defense of any such claim (with counsel reasonably satisfactory
to the Fiscal Agent, the Trustee or Paying Agent, as the case may be) and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Master Servicer
shall not affect any rights the Trust, the Fiscal Agent, the Paying Agent and
the Trustee may have to indemnification under this Section 8.25(c), unless the
Master Servicer's defense of such claim is materially prejudiced thereby. The
indemnification
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provided herein shall survive the termination of this Agreement and the
resignation or termination of the Master Servicer, the Fiscal Agent, the Paying
Agent and the Trustee.
(d) The parties expressly agree that the only written information
concerning the Master Servicer furnished by or on behalf of the Master Servicer
for inclusion in the Preliminary Prospectus Supplement and Final Prospectus
Supplement is the information set forth under the paragraphs under the caption
"SERVICING OF THE MORTGAGE LOANS -- The Master Servicer" and under the caption
"DESCRIPTION OF THE MORTGAGE POOL - The Sellers Xxxxx Fargo" of the Preliminary
Prospectus Supplement and Final Prospectus Supplement.
SECTION 8.26 EXCHANGE ACT REPORTING. The Master Servicer, the
Special Servicer, the Paying Agent and the Trustee and the Fiscal Agent shall
reasonably cooperate with the Depositor in connection with the Depositor's
satisfying the reporting requirements in respect of the Trust under the Exchange
Act. The Paying Agent shall prepare and file on behalf of the Depositor periodic
reports with respect to the Trust as required by the Exchange Act and the Rules
and Regulations of the Securities and Exchange Commission thereunder; provided
that such items shall have been received by the Paying Agent (to the extent not
generated by the Paying Agent) 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, the Special Servicer, the Depositor or
any other Person to the Paying Agent shall be so delivered in the format
required for electronic filing via the XXXXX system (in addition to any other
required format). The Paying Agent 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
seek from the Securities and Exchange Commission a no-action letter or other
exemptive relief relating to reduced reporting requirements in respect of the
Trust under the Exchange Act and shall, in accordance with and to the extent
permitted by applicable law, file a Form 15 relating to the automatic
termination of reporting in respect of the Trust under the Exchange Act.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. The Master Servicer
shall act in accordance with this Agreement and the REMIC Provisions and related
provisions of the Code in order to create or maintain the status of the three
REMICs as REMICs under the Code. The Master Servicer shall use its best efforts
to take no action or cause any REMIC to take any action that could (i) endanger
the status of any REMIC as a REMIC under the Code or (ii) result in the
imposition of a tax upon any REMIC (including, but not limited to, the tax on
prohibited transactions as defined in Code Section 860F(a)(2) or on prohibited
contributions pursuant to Section 860G(d)).
SECTION 8.28 TERMINATION.
(a) The obligations and responsibilities of the Master Servicer
created hereby (other than the obligation of the Master Servicer to make
payments to the Paying Agent as set forth in Section 8.29 and the obligations of
the Master Servicer to the Trustee, Fiscal Agent, the Paying Agent, the Special
Servicer and the Trust) shall terminate on the date which is (i) the later of
(A) the final payment or other liquidation of the last Mortgage Loan remaining
outstanding or (B) the disposition of all REO Property, (ii) if an Event of
Default described in clauses
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8.28(b)(ii), (iii) or (iv) has occurred, 60 days following the date on which the
Trustee or Depositor gives written notice to the Master Servicer that the Master
Servicer is terminated or (iii) if an Event of Default described in clauses
8.28(b)(i), (v), (vi) or (vii) has occurred, immediately upon the date on which
the Trustee or the Depositor gives written notice to the Master Servicer that
the Master Servicer is terminated. After any Event of Default, the Trustee (i)
may elect to terminate the Master Servicer by providing such notice, and (ii)
shall provide such notice if holders of Certificates representing more than 25%
of the Certificate Balance of all Certificates so direct the Trustee.
(b) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to remit to the Paying
Agent any payment required to be remitted by the Master Servicer under the terms
of this Agreement, including any required Advances; or
(ii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the duties, covenants or
agreements on the part of the Master Servicer contained in this Agreement which
continues unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Depositor or the Trustee; provided, however, that
if the Master Servicer certifies to the Trustee and the Depositor that the
Master Servicer is in good faith attempting to remedy such failure, such cure
period will be extended to the extent necessary to permit the Master Servicer to
cure such failure; provided, further that such cure period may not exceed 90
days; or
(iii) any breach of the representations and warranties
contained in Section 8.20 hereof that materially and adversely affects the
interest of any holder of any Class of Certificateholders and that 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 by the Depositor or the Trustee, provided, however, that if the Master
Servicer certifies to the Trustee and the Depositor that the Master Servicer is
in good faith attempting to remedy such breach, such cure period will be
extended to the extent necessary to permit the Master Servicer to cure such
breach; provided, further that such cure period may not exceed 90 days; or
(iv) the Trustee shall receive notice from any Rating Agency
to the effect that the continuation of the Master Servicer in such capacity
would result in the downgrade, qualification or withdrawal of any rating then
assigned by such Rating Agency to any Class of Certificates; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation
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of its affairs, shall have been entered against the Master Servicer and such
decree or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(vi) the Master Servicer 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 relating to the Master Servicer or relating
to all or substantially all of its property; or
(vii) the Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take advantage
of any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
8.28(a), specifying the Master Servicer Remittance Date upon which the final
transfer by the Master Servicer to the Paying Agent shall be made, shall be
given promptly in writing by the Master Servicer to the Trustee and the Paying
Agent no later than the later of (i) five Business Days after the final payment
or other liquidation of the last Mortgage Loan or (ii) the sixth day of the
month of such final distribution. Upon any such termination, the duties of the
Master Servicer (other than the obligation of the Master Servicer to pay to the
Paying Agent the amounts remaining in the Certificate Account as set forth below
and the obligations of the Master Servicer to the Trustee and the Trust and the
Fiscal Agent as provided herein) shall terminate and the Master Servicer shall
transfer to the Paying Agent the amounts remaining in the Certificate Account
after making the withdrawals permitted to be made pursuant to Section 5.2 and
shall thereafter terminate the Certificate Account and any other account or fund
maintained with respect to the Mortgage Loans.
(b) On the date specified in a written notice of termination given
to the Master Servicer pursuant to clause (ii) of Section 8.28(a), or on the
date on which a written notice of termination is given to the Master Servicer
pursuant to clause (iii) of Section 8.28(a) all authority, power and rights of
the Master Servicer under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall terminate; provided that in no event shall the
termination of the Master Servicer be effective until a successor servicer shall
have succeeded the Master Servicer as successor servicer, notified the Master
Servicer of such designation, and such successor servicer shall have assumed the
Servicer's obligations and responsibilities, as set forth in an agreement
substantially in the form hereof, with respect to the Mortgage Loans. Except as
provided in the next sentence, the Trustee may not succeed the Master Servicer
as servicer until and unless it has satisfied the provisions that would apply to
a Person succeeding to the business of the Master Servicer pursuant to Section
8.22(b) hereof. Notwithstanding the foregoing sentence, in the event that the
Master Servicer is terminated as a result of an event described in Section
8.28(b)(v), 8.28(b)(vi) or 8.28(b)(vii), the Trustee shall act as successor
servicer immediately upon delivery of a notice of termination to the Master
Servicer and shall use its best efforts within 90 days of assuming the duties of
the Servicer, either to satisfy the conditions of Section 8.22(b) hereof or to
transfer the duties of the Master Servicer to a successor servicer who
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has satisfied such conditions. The Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents or otherwise. The Master
Servicer agrees to cooperate with the Trustee, the Paying Agent and the Fiscal
Agent in effecting the termination of the Master Servicer's responsibilities and
rights hereunder as Master Servicer including, without limitation, notifying
Mortgagors of the assignment of the servicing function and providing the Trustee
all documents and records in electronic or other form reasonably requested by it
to enable the successor servicer designated by the Trustee to assume the Master
Servicer's functions hereunder and to effect the transfer to such successor for
administration by it of all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Certificate Account and any other
account or fund maintained or thereafter received with respect to the Mortgage
Loans.
ARTICLE IX
ADMINISTRATION AND SERVICING OF
SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) For and on behalf of the Certificateholders and the Trustee, the
Special Servicer shall service the Specially Serviced Mortgage Loans and manage
the related REO Properties in accordance with the provisions of this Agreement
and the Servicing Standard.
(b) The Special Servicer shall cooperate with the Master Servicer
and provide the Master Servicer with the information reasonably requested by the
Master Servicer, in writing, to the extent required to allow the Master Servicer
to perform its servicing obligations with respect to the Specially Serviced
Mortgage Loans hereunder; provided, however, that (i) the Special Servicer shall
not be required to produce any ad hoc reports or incur any unusual expense or
effort in connection therewith and (ii) if the Special Servicer elects to
provide such ad hoc reports, the Special Servicer may require the Master
Servicer to pay a reasonable fee to cover the costs of the preparation thereof.
The Special Servicer's obligations with respect to the servicing of any
Specially Serviced Mortgage Loan and any related REO Properties shall terminate
when such Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage
Loan, unless and until another Servicing Transfer Event with respect to such
Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the Master
Servicer and the Paying Agent within two Business Days (or sooner, if required
by the Servicing Standard) after becoming aware that a Mortgage Loan has become
a Rehabilitated Mortgage Loan, which notice shall identify the applicable
Mortgage Loan. Upon the receipt of such notice by the Master Servicer and the
Paying Agent, such Mortgage Loan shall become a Rehabilitated Mortgage Loan and
will be serviced by the Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect
to a Mortgage Loan and upon the reasonable request of the Special Servicer, the
Master Servicer
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shall xxxx its records for such Mortgage Loan to cause any monthly statements
for amounts due on such Mortgage Loan to be sent thereafter to the Special
Servicer rather than the related Mortgagor. Upon receipt of any such monthly
statement, the Special Servicer shall, within two Business Days, advise the
Master Servicer of any changes to be made, and return the monthly statement to
the Master Servicer. The Master Servicer shall thereafter promptly send the
corrected monthly statement to the Mortgagor. If a Mortgage Loan becomes a
Rehabilitated Mortgage Loan, the Master Servicer shall send the monthly
statement to the Mortgagor as it did before such Mortgage Loan became a
Specially Serviced Mortgage Loan.
(e) All amounts collected by the Master Servicer with respect to a
Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an
REO Property) shall be deposited in the Certificate Account. The Master Servicer
shall within three Business Days after receipt of any such payment, notify the
Special Servicer of the receipt of such payment and the amount thereof. The
Special Servicer shall, within one Business Day thereafter, instruct the Master
Servicer in writing how to apply such payment.
(f) The Special Servicer covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by the
Special Servicer and used by the Special Servicer in the course of operation or
management of, or the compiling, reporting or generation of date required by
this Agreement will not contain any deficiency (x) in the ability of such
software or hardware to identify correctly or perform calculations or other
processing with respect to dates after December 31, 1999 or (y) that would cause
such software to be fit no longer for the purpose for which it was intended by
reason of the changing of the date from 1999 to 2000.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
OF SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain in
effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance
Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity
Bond shall be issued by a Qualified Insurer (unless the Special Servicer self
insures as provided below) and be in form and amount consistent with the
Servicing Standard. In the event that any such Servicer Errors and Omissions
Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the Special
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long-term rating of the Special Servicer is not less
than two rating categories (ignoring pluses or minuses) lower than the highest
rating of the Certificates, but in any event not less than "Baa2" as rated by
Xxxxx'x and "BBB" as rated by DCR, the Special Servicer may self-insure for the
Servicer Fidelity Bond and the Servicer Error and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the right
to use a Sub-Servicer on the same terms and conditions as those set forth in
Section 8.4 for a Sub-Servicer of the Master Servicer. The Special Servicer
shall notify the Master Servicer and Trustee of the appointment of any
Sub-Servicer of the Special Servicer.
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SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this Agreement, the
Special Servicer is hereby authorized and empowered when the Special Servicer
believes it appropriate in accordance with the Servicing Standard, to take any
and all the actions with respect to Specially Serviced Mortgage Loans which the
Master Servicer may perform as set forth in Section 8.3(a), including (i) to
execute and deliver, on behalf of itself or the Trust, any and all instruments
of satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to the Specially Serviced
Mortgage Loans and with respect to the related REO Properties and (ii) to
effectuate foreclosure or other conversion of the ownership of any REO Property
securing a Mortgage Loan. The Trustee shall execute on the Closing Date a Power
of Attorney in the form of Exhibit S-2 hereto and shall furnish the Special
Servicer from time to time, upon request, with any additional powers of attorney
of the Trust, empowering the Special Servicer to take such actions as it
determines to be reasonably necessary to comply with its servicing,
administrative and management duties hereunder, and the Trustee shall execute
and deliver or cause to be executed and delivered such other documents as a
Special Servicing Officer may request, that are necessary or appropriate to
enable the Special Servicer to service, administer and manage the Specially
Serviced Mortgage Loans and carry out its duties hereunder, in each case as the
Special Servicer determines is in accordance with the Servicing Standard and the
terms of this Agreement; provided, that, prior to initiating any proceedings in
any court of law or equity (but not defending any proceedings in any court of
law or equity) or instituting any proceeding to foreclose on any Mortgaged
Property in the name of the Trust in any state, the Special Servicer shall
notify the Trustee in writing and not institute or initiate any such proceedings
for a period of five Business Days from the date of its delivery of such notice
to the Trustee, unless the Special Servicer reasonably believes that such action
should be taken in less than five Business days to preserve the property of the
Trust for the benefit of Certificateholders, and the Trustee may within five
Business Days of its receipt of such notice advise the Special Servicer that it
has received an Opinion of Counsel (the cost of which shall be an expense of the
Trust) from an attorney duly licensed to practice law in the state where the
related Mortgaged Property or REO Property is located, that it is likely that
the laws of the state in which said action is to be taken either prohibit such
action if taken in the name of the Trust or that the Trust would be adversely
affected under the "doing business" or tax laws of such state if such action is
taken in its name; provided, further, that the Special Servicer shall not be
liable to the extent that it relies on the advice provided in such Opinion of
Counsel. Upon receipt of any such advice from the Trustee, the Special Servicer
shall take such action in the name of such Person or Persons, in trust for the
Trust, as shall be consistent with the Opinion of Counsel obtained by the
Trustee. Such Person or Persons shall acknowledge in writing that such action is
being taken by the Special Servicer in the name of the Trust. In the performance
of its duties hereunder, the Special Servicer shall be an independent contractor
and shall not, except in those instances where it is, after notice to the
Trustee as provided above, taking action in the name of the Trust, be deemed to
be the agent of the Trust. The Special Servicer shall indemnify the Trustee for
any loss, liability or reasonable expense (including attorneys' fees) incurred
by the Trustee or any director, officer, employee, agent or Controlling Person
of it or its affiliates in connection with any negligent or intentional misuse
of the foregoing powers of attorney furnished to the Special Servicer by the
Trustee. Such indemnification shall survive the resignation or termination of
the Special Servicer hereunder, the resignation or termination of the Trustee
and the termination of this Agreement. The Special Servicer shall not have any
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responsibility or liability for any act or omission of the Trustee, the Master
Servicer or the Depositor that is not attributable to the failure of the Special
Servicer to perform its obligations hereunder. The Special Servicer may
conclusively rely on any advice of counsel rendered in a Nondisqualification
Opinion.
(b) In servicing and administering the Specially Serviced Mortgage
Loans and managing any related REO Properties, the Special Servicer shall employ
procedures consistent with the Servicing Standard. The Special Servicer shall
conduct, or cause to be conducted, inspections, at its own expense, of the
Mortgaged Properties relating to Specially Serviced Mortgage Loans at such times
and in such manner as shall be consistent with the Servicing Standard; provided,
that the Special Servicer shall conduct, or cause to be conducted, inspections
of the Mortgaged Properties relating to Specially Serviced Mortgage Loans at
least once during each twelve-month period that ends on June 30 of any calendar
year (commencing with the twelve-month period ending June 30, 2000). The Special
Servicer shall provide to the Master Servicer and the Operating Adviser copies
of the Inspection Reports relating to such inspections as soon as practicable
after the completion of any inspection.
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS.
Subject to the limitations of Section 12.3, the Special Servicer
shall have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a provision in
the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan shall
(or may at the Mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property, or
(ii) provides that such Specially Serviced Mortgage Loan may
not be assumed without the consent of the related mortgagee in connection with
any such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with the Operating Adviser and in accordance with the REMIC Provisions, take
such actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any due-on-sale
clause contained in the related Mortgage Note or Mortgage; provided, however,
that if the Principal Balance of such Mortgage Loan at such time equals or
exceeds 2% of the Aggregate Certificate Balance, but in any case, at least $2.5
million (the "Review Threshold"), then prior to waiving the effect of such
provision, the Special Servicer shall obtain Rating Agency Confirmation
regarding such waiver. In connection with the request for such consent, the
Special Servicer shall prepare and deliver to DCR and Xxxxx'x a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. The Special
Servicer shall also prepare and provide DCR and Xxxxx'x with such memorandum and
documentation for all transfer, assumption and encumbrance consents granted for
Mortgage Loans below the Review Threshold, but for which
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the Special Servicer's decision will be sufficient and a Rating Agency
Confirmation is not required. The Rating Agencies shall respond to such request
in a reasonable period of time. As to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan and contains a provision in the nature of a "due-on-sale"
clause, the Special Servicer shall have the rights and duties set forth in
Section 8.7(b).
After notice to the Operating Adviser, the Special Servicer is also
authorized to take or enter into an assignment and assumption agreement from or
with the Person to whom such property has been or is about to be conveyed,
and/or to release the original Mortgagor from liability upon the Specially
Serviced Mortgage Loan and substitute the new Mortgagor as obligor thereon;
provided, that except as otherwise permitted by Section 9.5(c), any such
assignment and assumption or substitution agreement shall contain no terms that
could result in an Adverse REMIC Event. To the extent permitted by law, the
Special Servicer shall enter into an assumption or substitution agreement only
if the credit status of the prospective new mortgagor and the underwriting of
the new mortgagor is in compliance with the Special Servicer's regular
commercial mortgage origination or servicing standards and criteria. The Special
Servicer shall notify the Master Servicer of any such assignment and assumption
or substitution agreement and the Special Servicer shall forward to the Trustee
the original of such agreement, which original shall be added by the Trustee to
the related Mortgage File and shall, for all purposes, be considered a part of
such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
(b) In connection with any assignment and assumption of a Specially
Serviced Mortgage Loan, in no event shall the Special Servicer consent to the
creation of any lien on a Mortgaged Property that is senior to, or on a parity
with, the lien of the related Mortgage. Nothing in this Section 9.5 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assignment and assumption of a Specially Serviced Mortgage
Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(c) Subject to the Servicing Standard and Section 9.34, and the
rights and duties of the Master Servicer under Section 8.18, the Special
Servicer may enter into any modification, waiver or amendment (including,
without limitation, the substitution or release of collateral or the pledge of
additional collateral) of the terms of any Specially Serviced Mortgage Loan,
including any modification, waiver or amendment to (i) reduce the amounts owing
under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium, (ii) reduce the amount of the Scheduled
Payment on any Specially Serviced Mortgage Loan, including by way of a reduction
in the related Mortgage Rate, (iii) forebear in the enforcement of any right
granted under any Mortgage Note or Mortgage relating to a Specially Serviced
Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage
Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage
Loan during any period during which voluntary Principal Prepayments are
prohibited, provided, in the case of any such modification, waiver or amendment,
that (A) the related Mortgagor is in default with respect to the Specially
Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer,
such default is reasonably foreseeable, (B) in the reasonable judgment of the
Special Servicer, such modification, waiver or amendment would increase the
recovery on the Specially Serviced Mortgage Loan to Certificateholders on a net
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present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at related Mortgage Rate),
(C) such modification, waiver or amendment would not cause an Adverse REMIC
Event to occur, and (D) if notice to the Operating Adviser of such modification,
waiver or amendment is required pursuant to Section 9.39, the Special Servicer
has made such notice.
In no event, however, shall the Special Servicer (i) extend the
Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is two
years prior to the Final Rated Distribution Date, (ii) extend the Maturity Date
of a Specially Serviced Mortgage Loan at an interest rate below the then
prevailing interest rate for comparable loans, as determined by the Special
Servicer (such limitation of extensions made at a below market rate shall not
limit the ability of the Special Servicer to extend the Maturity Date of any
Specially Serviced Mortgage Loan at an interest rate at or in excess of the
prevailing rate for comparable loans at the time of such modification), (iii) if
the Specially Serviced Mortgage Loan is secured by a ground lease, extend the
Maturity Date of such Specially Serviced Mortgage Loan beyond a date which is
ten (10) years prior to the expiration of the term of such ground lease, (iv)
reduce the Mortgage Rate of a Specially Serviced Mortgage Loan to a rate below
the prevailing interest rate for comparable loans, as determined by the Special
Servicer, or (v) defer interest due on any Specially Serviced Mortgage Loan in
excess of 10% of the Scheduled Principal Balance of such Specially Serviced
Mortgage Loan or defer the collection of interest on any Specially Serviced
Mortgage Loan without accruing interest on such deferred interest at a rate at
least equal to the Mortgage Rate of such Specially Serviced Mortgage Loan.
Notwithstanding the foregoing, if a Mortgage Loan is a Balloon
Mortgage Loan that has failed to make the Balloon Payment at its original
Maturity Date, and such Balloon Loan is not a Specially Serviced Mortgage Loan
(other than by reason of the failure to make its Balloon Payment) and has not
been delinquent in the preceding twelve months (other than with respect to the
Balloon Payment), then in addition to the other alternatives specified above,
the Special Servicer may make up to three one-year extensions at the existing
Mortgage Rate for such Mortgage Loan. The preceding sentence does not modify the
limitations of clause (i) or (iii) of the preceding paragraph.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph, and clause (ii) of the second paragraph,
of this Section 9.5(c) shall be evidenced by an Officer's Certificate setting
forth the information required under subsection (c).
(d) In the event the Special Servicer intends to permit a Mortgagor
to substitute collateral for all or any portion of a Mortgaged Property pursuant
to Section 9.5(c) or pledge additional collateral for the Mortgage Loan pursuant
to Section 9.5(c), if the security interest of the Trust in such collateral
would be perfected by possession, or if such collateral requires special care or
protection, then prior to agreeing to such substitution or addition of
collateral, the Special Servicer shall make arrangements for such possession,
care or protection, and prior to agreeing to such substitution or addition of
collateral (or such arrangement for possession, care or protection) shall obtain
the prior written consent of the Trustee with respect thereto (which consent
shall not be unreasonably withheld, delayed or conditioned); provided, however,
that the Trustee shall not be required (but has the option) to consent to any
substitution
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or addition of collateral or to hold any such collateral which will require the
Trustee to undertake any additional duties or obligations or incur any
additional expense.
(e) The Special Servicer will promptly deliver to the Master
Servicer, the Operating Adviser, the Trustee, the Paying Agent and the Rating
Agencies a notice, specifying any such assignments and assumptions,
modifications, waivers or amendments, such notice identifying the affected
Specially Serviced Mortgage Loan. Such notice shall be delivered to the Trustee
and the Paying Agent and shall set forth the reasons for such waiver,
modification, or amendment (including, but not limited to, information such as
related income and expense statements, rent rolls, occupancy status, property
inspections, and an internal or external appraisal performed in accordance with
MAI standards and methodologies (and, if done externally, the cost of such
appraisal shall be recoverable as a Servicing Advance subject to the provisions
of Section 4.4 hereof)). The Special Servicer shall also deliver to the Trustee
(or the Custodian), for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment
promptly following the execution thereof.
(f) No fee described in this Section shall be collected by the
Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in
conjunction with any consent or any modification, waiver or amendment of the
Mortgage Loan if the collection of such fee would cause such consent,
modification, waiver or amendment to be a "significant modification" of the
Mortgage Note within the meaning of Treasury Regulation Section 1.860G-2(b).
Subject to the foregoing, the Special Servicer shall use its reasonable efforts,
in accordance with the Servicing Standard, to collect any modification fees and
other expenses connected with a permitted modification of a Mortgage Loan from
the Mortgagor. The inability of the Mortgagor to pay any costs and expenses of a
proposed modification shall not impair the right of the Special Servicer, the
Master Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
(g) The Special Servicer shall cooperate with the Master Servicer
(as provided in Section 8.7) in connection with assignments and assumptions of
Mortgage Loans that are not Specially Serviced Mortgage Loans, and shall be
entitled to receive 50% of any assumption fee paid by the related Mortgagor in
connection with an assignment and assumption executed pursuant to Section 8.7(a)
and 100% of any assumption fee paid by the related Mortgagor in connection with
an assignment and assumption executed pursuant to Section 8.7(b).
(h) Notwithstanding anything herein to the contrary, the Special
Servicer shall not be permitted to take or refrain from taking any action
pursuant to instructions from the Operating Adviser that would cause it to
violate any term or provision of this Agreement, including the REMIC Provisions
and the Servicing Standard.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Specially
Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
the Special Servicer will immediately notify the Master Servicer. The Special
Servicer shall determine, in accordance with the Servicing Standard, whether an
instrument of satisfaction shall be delivered and, if the Special
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Servicer determines that such instrument should be delivered, the Special
Servicer shall deliver written approval of such delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the Master Servicer shall notify, in writing, the
Mortgagor under each Specially Serviced Mortgage Loan transferred to the Special
Servicer, of such transfer.
(c) The Special Servicer shall send notification in writing, to the
Master Servicer to request any documents and instruments in the possession of
the Master Servicer related to any Specially Serviced Mortgage Loan.
(d) The Special Servicer shall, with respect to any Rehabilitated
Mortgage Loan, release to the Master Servicer all documents and instruments in
the possession of the Special Servicer related to such Rehabilitated Mortgage
Loan. Prior to the transfer of servicing with respect to any Rehabilitated
Mortgage Loan to the Master Servicer in accordance with the Servicing Standard,
the Special Servicer shall notify, in writing, each Mortgagor under each
Rehabilitated Mortgage Loan of such transfer.
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SPECIAL
SERVICER TO BE HELD FOR THE TRUSTEE.
(a) The Special Servicer shall transmit to the Trustee or Custodian
such documents and instruments coming into the possession of the Special
Servicer as from time to time are required by the terms hereof to be delivered
to the Trustee. Any funds received by the Special Servicer in respect of any
Specially Serviced Mortgage Loan or any REO Property or which otherwise are
collected by the Special Servicer as Liquidation Proceeds, Condemnation Proceeds
or Insurance Proceeds in respect of any Specially Serviced Mortgage Loan or any
REO Property shall be transmitted to the Master Servicer within one Business Day
of receipt to the Certificate Account, except that if such amounts relate to REO
Income, they shall be deposited in the REO Account. The Special Servicer shall
provide access to information and documentation regarding the Specially Serviced
Mortgage Loans to the Trustee, the Master Servicer, the Fiscal Agent, the Paying
Agent, the Operating Adviser and their respective agents and accountants at any
time upon reasonable written request and during normal business hours, provided
that the Special Servicer shall not be required to take any action or provide
any information that the Special Servicer determines will result in any material
cost or expense to which it is not entitled to reimbursement hereunder or will
result in any material liability for which it is not indemnified hereunder;
provided further that the Trustee and the Paying Agent shall be entitled to
receive from the Special Servicer all such information as the Trustee and the
Paying Agent shall reasonably require to perform their respective duties
hereunder. In fulfilling such a request, the
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Special Servicer shall not be responsible for determining whether such
information is sufficient for the Trustee's, the Master Servicer's, the Fiscal
Agent's, the Paying Agent's or the Operating Adviser's purposes.
(b) The Special Servicer hereby acknowledges that the Trust owns the
Specially Serviced Mortgage Loans and all Mortgage Files representing such
Specially Serviced Mortgage Loans and all funds now or hereafter held by, or
under the control of, the Special Servicer that are collected by the Special
Servicer in connection with the Specially Serviced Mortgage Loans (but excluding
any Special Servicer Compensation and all other amounts to which the Special
Servicer is entitled hereunder); and the Special Servicer agrees that all
documents or instruments constituting part of the Mortgage Files, and such funds
relating to the Specially Serviced Mortgage Loans which come into the possession
or custody of, or which are subject to the control of, the Special Servicer,
shall be held by the Special Servicer for and on behalf of the Trust.
(c) The Special Servicer also agrees that it shall not create, incur
or subject any Specially Serviced Mortgage Loans, or any funds that are required
to be deposited in any REO Account to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, nor assert by legal
action or otherwise any claim or right of setoff against any Specially Serviced
Mortgage Loan or any funds, collected on, or in connection with, a Specially
Serviced Mortgage Loan.
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SPECIAL
SERVICER.
(a) Special Servicer hereby represents, warrants to and covenants
with the Trustee (in its capacity as Trustee of the Trust) that as of the date
hereof:
(i) the Special Servicer is duly organized, validly existing
and in good standing as a corporation under the laws of the state of its
incorporation and shall be and thereafter remain, in compliance with the laws of
each state in which any Mortgaged Property (including any REO Property) which
is, or is related to, a Specially Serviced Mortgage Loan is located to the
extent necessary to perform its obligations under this Agreement, except where
the failure to so qualify or comply would not adversely affect the Special
Servicer's ability to perform its obligations hereunder in accordance with the
terms of this Agreement;
(ii) the Special Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Special Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement;
and this Agreement, assuming the due authorization, execution and delivery
thereof by the Depositor, the Trustee, the Paying Agent, the Master Servicer and
the Fiscal Agent, evidences the valid and binding obligation of the Special
Servicer, enforceable against the Special Servicer in accordance with its terms
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, receivership, moratorium and other similar laws
affecting creditors' rights generally as from time to time in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
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(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement.
(iv) no litigation is pending or, to the Special Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by it, or compliance by it with, this Agreement, or the consummation
of the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, it has obtained the same or will obtain the
same prior to the time necessary to perform its obligations under this
Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by the Special Servicer
contemplated by this Agreement are in the ordinary course of business of the
Special Servicer.
(b) It is understood that the representations and warranties set
forth in this Section 9.8 shall survive the execution and delivery of this
Agreement.
(c) Any cause of action against the Special Servicer arising out of
the breach of any representations and warranties made in this Section shall
accrue upon discovery of such breach by any of the Trustee, the Master Servicer,
the Paying Agent, the Fiscal Agent, or the Special Servicer. The Special
Servicer shall give prompt notice to the Trustee, the Paying Agent, the Fiscal
Agent, the Depositor, the Operating Adviser and the Master Servicer of the
occurrence, or the failure to occur, of any event that, with notice, or the
passage of time or both, would cause any representation or warranty in this
Section to be untrue or inaccurate in any respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICIES.
(a) For all REO Property, to the extent consistent with the
Servicing Standard, the Special Servicer shall use efforts, consistent with the
Servicing Standard, to maintain with a Qualified Insurer a Standard Hazard
Insurance Policy which does not provide for reduction due to depreciation in an
amount which is not less than the full replacement cost of the improvements of
such REO Property or in an amount not less than the unpaid principal balance
plus all unpaid
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interest and the cumulative amount of Servicing Advances (plus Advance Interest)
made with respect to such Mortgage Loan of such Mortgage Loan, whichever is
less, but, in any event, in an amount sufficient to avoid the application of any
co-insurance clause. If the Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), the Special
Servicer shall maintain a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration in an amount
representing coverage equal to the lesser of the then outstanding Principal
Balance of the Specially Serviced Mortgage Loan and unpaid Advances (plus
Advance Interest) and the maximum insurance coverage required under such current
guidelines. It is understood and agreed that the Special Servicer has no
obligation to obtain earthquake or other additional insurance on REO Property,
except as required by law and, nevertheless, at its sole option and at the
Trust's expense, it (if required at origination and is available at commercially
reasonable rates) may obtain such earthquake insurance. The Special Servicer
shall use its reasonable efforts, consistent with the Servicing Standard, to
obtain a comprehensive general liability insurance policy for all REO
Properties. The Special Servicer shall, to the extent available at commercially
reasonable rates (as determined by the Special Servicer in accordance with the
Servicing Standard) and to the extent consistent with the Servicing Standard,
use its reasonable efforts to maintain a Rent Loss Policy covering revenues for
a period of at least twelve months and a comprehensive general liability policy
with coverage comparable to prudent lending requirements in an amount not less
than $1 million per occurrence. All applicable policies required to be
maintained by the Special Servicer pursuant to this Section 9.9(a) shall name
the Trustee as loss payee and be endorsed with a standard mortgagee clause. The
costs of such insurance shall be a Servicing Advance, subject to the provisions
of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under any
insurance policies maintained pursuant to this Section 9.9 (other than amounts
to be applied to the restoration or repair of the REO Property) shall be
deposited into the applicable REO Account. Any cost incurred in maintaining the
insurance required hereby for any REO Property shall be a Servicing Advance,
subject to the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, (i) the Special Servicer shall have
no obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements and (ii) the Special Servicer
shall not be required in any event to maintain or obtain insurance coverage
beyond what is reasonably available at a cost customarily acceptable and
consistent with the Servicing Standard. The Special Servicer shall notify the
Trustee of any such determination.
The Special Servicer shall conclusively be deemed to have satisfied
its obligations as set forth in this Section 9.9 either (i) if the Special
Servicer shall have obtained and maintained a master force placed or blanket
insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans serviced by it, it being understood and agreed that such policy
may contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by comparable servicers consistent with
the Servicing Standard, and provided that such policy is issued by a Qualified
Insurer with a minimum claims paying ability rating of at least "A2" by Xxxxx'x
and "A" by DCR or otherwise approved by the Rating Agencies or (ii) if the
Special Servicer, provided that the rating of such Person's long-term debt
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is not less than "A2" by Xxxxx'x and "A" by DCR self-insures for its obligations
as set forth in the first paragraph of this Section 9.9. In the event that the
Special Servicer shall cause any Mortgage Loan to be covered by such a master
force placed or blanket insurance policy, the incremental cost of such insurance
allocable to such Mortgage Loan (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgage Loan is then covered
thereby), if not borne by the related Mortgagor, shall be paid by the Special
Servicer as a Servicing Advance, subject to the provisions of Section 4.4
hereof. If such policy contains a deductible clause, the Special Servicer shall,
if there shall not have been maintained on the related Mortgaged Property a
policy complying with this Section 9.9 and there shall have been a loss that
would have been covered by such policy, deposit in the Certificate Account the
amount not otherwise payable under such master force placed or blanket insurance
policy because of such deductible clause to the extent that such deductible
exceeds (i) the deductible under the related Mortgage Loan or (ii) if there is
no deductible limitation required under the Mortgage Loan, the deductible amount
with respect to insurance policies generally available on properties similar to
the related Mortgaged Property which is consistent with the Servicing Standard,
and deliver to the Trustee an Officer's Certificate describing the calculation
of such amount. In connection with its activities as administrator and servicer
of the Mortgage Loans, the Special Servicer agrees to present, on its behalf and
on behalf of the Trustee, claims under any such master force placed or blanket
insurance policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The
Special Servicer will prepare and present or cause to be prepared and presented
on behalf of the Trustee all claims under the Insurance Policies with respect to
REO Property, and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
recover under such policies. Any proceeds disbursed to the Special Servicer in
respect of such policies shall be promptly remitted to the Certificate Account,
upon receipt, except for any amounts realized that are to be applied to the
repair or restoration of the applicable REO Property in accordance with the
Servicing Standard. Any extraordinary expenses (but not ordinary and routine or
anticipated expenses) incurred by the Special Servicer in fulfilling its
obligations under this Section 9.10 shall be paid by the Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special
Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the
Liquidation Fee and (iii) the Work-Out Fee. Such amounts, if any, collected by
the Special Servicer from the related Mortgagor shall be transferred by the
Special Servicer to the Master Servicer within one Business Day of receipt
thereof, and deposited by the Master Servicer in the Certificate Account. The
Special Servicer shall be entitled to receive a Liquidation Fee from the
Liquidation Proceeds received in connection with a Final Disposition of a
Specially Serviced Mortgage Loan or REO Property. Notwithstanding any other
provision herein, the Special Servicing Fee for each monthly period relating to
each Determination Date shall be reduced by an amount equal to the Compensating
Interest, if any, relating to Specially Serviced Mortgage Loans which have
received voluntary Principal Prepayments not from Liquidation Proceeds or from
modifications of Specially Serviced Mortgage Loans for such Determination Date.
The Special Servicer shall also be entitled to additional servicing compensation
of an amount equal to the excess, if any, of the aggregate Prepayment Interest
Excess relating to Mortgage Loans which are Specially Serviced
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Mortgage Loans which have received voluntary Principal Prepayments not from
Liquidation Proceeds or from modifications of Specially Serviced Mortgage Loans
for each Distribution Date over the aggregate Prepayment Interest Shortfalls for
such Mortgage Loans for such Distribution Date.
(b) The Special Servicer shall be entitled to cause the Master
Servicer to withdraw from the Certificate Account the Special Servicer
Compensation in respect of each such Mortgage Loan in the time and manner set
forth in Section 5.2 of this Agreement. The Special Servicer shall be required
to pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
(c) Additional Special Servicer compensation in the form of net
interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees (net of Advance
Interest) or other usual and customary charges and fees actually received from
the Mortgagor in connection with any Specially Serviced Mortgage Loan shall be
retained by the Special Servicer, to the extent not required to be deposited in
the Certificate Account pursuant to the terms of this Agreement. The Special
Servicer shall also be permitted to receive 50% of all assumption fees collected
with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans as
provided in Section 8.7(a) and 100% of all assumption fees collected with
respect to Mortgage Loans that are not Specially Serviced Mortgage Loans as
provided in Section 8.7(b). To the extent any component of Special Servicer
Compensation is in respect of amounts usually and customarily paid by
Mortgagors, the Special Servicer shall use reasonable good faith efforts to
collect such amounts from the related Mortgagor, and to the extent so collected,
in full or in part, the Special Servicer shall not be entitled to compensation
for the portion so collected therefor hereunder out of the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing Standard
and subject to Section 9.4(a), shall use its reasonable efforts to foreclose
upon, repossess or otherwise comparably convert the ownership of Mortgaged
Properties securing such of the Specially Serviced Mortgage Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments of such Mortgage Loan, the sale such
Mortgage Loan in accordance with this Agreement or the modification of such
Mortgage Loan in accordance with this Agreement. In connection with such
foreclosure or other conversion of ownership, the Special Servicer shall follow
the Servicing Standard. The foregoing is subject to the proviso that the Special
Servicer shall not request that the Master Servicer make a Servicing Advance for
Liquidation Expenses unless the Special Servicer shall in its sole discretion
determine, consistent with the Servicing Standard, (i) that such foreclosure or
restoration will increase on a net present value basis the Liquidation Proceeds
of the Specially Serviced Mortgage Loan to the Trust and (ii) that such
Liquidation Expenses will be recoverable from Liquidation Proceeds, and any such
Servicing Advance by the Master Servicer or the Trustee or the Fiscal Agent
shall be subject to the determination(s) of recoverability contemplated by
Section 4.4.
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(b) The Special Servicer shall not acquire any personal property
relating to any Specially Serviced Mortgage Loan pursuant hereto unless either:
(i) such personal property is incidental 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 received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust)
to the effect that the holding of such personal property by any REMIC will not
cause the imposition of a tax on any REMIC Pool under the Code or cause any
REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, and shall not
otherwise acquire possession of, or take any other action with respect to, any
Mortgaged Property, if, as a result of any such action the Trust 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 applicable comparable federal, state or local law, or a "discharger" or
"responsible party" thereunder, unless the Special Servicer has also previously
determined in accordance with the Servicing Standard, based on a Phase I
Environmental Report prepared by a Person (who may be an employee or affiliate
of the Master Servicer or the Special Servicer) who regularly conducts
environmental site assessments in accordance with the standards of FNMA in the
case of multi-family mortgage loans and customary servicing practices in the
case of commercial loans for environmental assessments, which report shall be
delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental expert
that taking such actions as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a greater recovery on a net
present value basis than not taking such actions; and
(ii) there are no circumstances or conditions present or
threatened at such Mortgaged Property relating to the use, management, disposal
or release of any hazardous substances, hazardous materials, hazardous wastes,
or petroleum-based materials for which investigation, testing, monitoring,
removal, clean-up or remediation could be required under any federal, state or
local law or regulation, or that, if any such materials are present for which
such action could be required, after consultation with an environmental expert
taking such actions with respect to the affected Mortgaged Property is
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions;
provided, however, that such compliance pursuant to clause (i) above or the
taking of such action pursuant to this clause (ii) shall only be required to the
extent that the cost thereof is a Servicing Advance of the Master Servicer
pursuant to this Agreement, subject to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made
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with respect to such Specially Serviced Mortgage Loan, the Master Servicer shall
treat such cost as a Servicing Advance subject to the provisions of Section 4.4
hereof; provided that, in the latter event, the Special Servicer shall use its
good faith reasonable business efforts to recover such cost from the Mortgagor
in connection with the curing of the default under the Specially Serviced
Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section 9.12(c),
that taking such actions as are necessary to bring any Mortgaged Property into
compliance with applicable Environmental Laws, or taking such actions with
respect to the containment, removal, clean-up or remediation of hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based materials
affecting any such Mortgaged Property, is not reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions, then
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust, including, without limitation, releasing the
lien of the related Mortgage. If the Special Servicer determines that a material
possibility exists that Liquidation Expenses with respect to Mortgaged Property
(taking into account the cost of bringing it into compliance with applicable
Environmental Laws) would exceed the principal balance of the related Mortgage
Loan, the Special Servicer shall not attempt to bring such Mortgaged Property
into compliance and shall not acquire title to such Mortgaged Property unless it
has received the written consent of the Trustee to such action.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains,
through foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine when an
Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust,
shall sell the REO Property expeditiously, but in any event within the time
period, and subject to the conditions, set forth in Section 9.15. Subject to
Section 9.15, the Special Servicer shall manage, conserve, protect and operate
the REO Property for the holders of beneficial interests in the Trust solely for
the purpose of its prompt disposition and sale.
SECTION 9.14 OPERATION OF REO PROPERTY.
(a) The Special Servicer shall segregate and hold all funds
collected and received in connection with the operation of each REO Property
separate and apart from its own funds and general assets and shall establish and
maintain with respect to each REO Property an account held in trust for the
benefit of the Certificateholders in the name of "LaSalle National Bank, as
Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage
Pass-
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Through Certificates Series 1999-WF1 [name of Property Account]" (each, an "REO
Account"), which shall be an Eligible Account. Amounts in any REO Account shall
be invested in Eligible Investments. The Special Servicer shall deposit all
funds received with respect to an REO Property in the applicable REO Account
within two days of receipt. The Special Servicer shall account separately for
funds received or expended with respect to each REO Property. All funds in each
REO Account may be invested only in Eligible Investments. The Special Servicer
shall notify the Trustee and the Master Servicer in writing of the location and
account number of each REO Account and shall notify the Trustee prior to any
subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the Special
Servicer shall withdraw from each REO Account and deposit in the Certificate
Account, the REO Income received or collected during the Collection Period
immediately preceding such Special Servicer Remittance Date on or with respect
to the related REO Properties and reinvestment income thereon; provided,
however, that the Special Servicer may retain in such REO Account such portion
of such proceeds and collections as may be necessary to maintain in the REO
Account sufficient funds for the proper operation, management and maintenance of
the related REO Property, including, without limitation, the creation of
reasonable reserves for repairs, replacements, and necessary capital
improvements and other related expenses. The Special Servicer shall notify the
Master Servicer of all such deposits (and the REO Properties to which the
deposits relate) made into the Certificate Account.
(c) If the Trust acquires the Mortgaged Property, the Special
Servicer shall have full power and authority, in consultation with the Operating
Adviser, and subject to the specific requirements and prohibitions of this
Agreement, to do any and all things in connection therewith as are consistent
with the Servicing Standard, subject to the REMIC Provisions, and in such manner
as the Special Servicer deems to be in the best interest of the Trust, and,
consistent therewith, may advance from its own funds to pay for the following
items (which amounts shall be reimbursed by the Trust), to the extent such
amounts cannot be paid from REO Income:
(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 could result or have resulted in the imposition of a lien
thereon; and
(iii) all costs and expenses necessary to maintain, operate,
lease and sell such REO Property (other than capital expenditures);
(iv) Notwithstanding the above, the Special Servicer shall pay
for such items if, but only if, in the Special Servicer's good faith reasonable
business judgment, such amounts will be recoverable from (i) proceeds received
in respect of such REO Property prior to the final liquidation of such REO
Property or (ii) Liquidation Proceeds, subject to the provisions of Section 4.4
hereof.
(d) The Special Servicer may, and to the extent necessary to (i)
preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC
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Provisions, shall use its best efforts to contract with any Independent
Contractor for the operation and management of the REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) the terms of such contract shall be consistent with the
provisions of Section 856 of the Code and Treasury Regulations Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, 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 Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust in
accordance with the contract between the Trust and the Independent Contractor in
an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating to
any such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations to the Trustee with respect to the operation and management of any
such REO Property;
(v) if the Independent Contractor is an Affiliate of the
Special Servicer, the consent of the Operating Adviser and a Nondisqualification
Opinion must be obtained; and
(vi) 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 the Trust pursuant to
this subsection (d) for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. All fees of the Independent Contractor (other
than fees paid for performing services within the ordinary duties of a Special
Servicer which shall be paid by the Special Servicer) shall be paid from the
income derived from the REO Property. To the extent that the income from the REO
Property is insufficient, such fees shall be advanced as a Servicing Advance,
subject to the provisions of Section 4.4 hereof.
(e) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not rent, lease, or otherwise earn income on behalf of
the Trust or the beneficial owners thereof with respect to REO Property which
might cause the REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code (without giving effect to the
final sentence thereof) or result in the receipt by any REMIC of any "income
from nonpermitted assets" within the meaning of Section 860F(a)(2) of the Code
or any "net income from foreclosure property" which is subject to tax under the
REMIC Provisions unless (i) the Trustee and the Special Servicer have received
an Opinion of Counsel (at the Trust's sole expense) to the effect that, under
the REMIC Provisions and any relevant proposed legislation, any income generated
for REMIC I by the REO Property would not result in the imposition of a
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tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special
Servicer determines the income or earnings with respect to such REO Property
will offset any tax under the REMIC Provisions relating to such income or
earnings and will maximize the net recovery from the REO Property to the
Certificateholders. The Special Servicer shall notify the Trustee, the Paying
Agent and the Master Servicer of any election by it to incur such tax, and the
Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal
to the tax payable thereby from revenues collected from the related REO
Property, (ii) provide the Paying Agent with all information for the Paying
Agent to file the necessary tax returns in connection therewith and (iii) upon
request by the Paying Agent, pay from such account to the Paying Agent the
amount of the applicable tax. The Paying Agent shall file the applicable tax
returns based on the information supplied by the Special Servicer and pay the
applicable tax from the amounts collected by the Special Servicer.
(i) Subject to, and without limiting the generality of the
foregoing, the Special Servicer, on behalf of the Trust, shall not:
(ii) permit the Trust to enter into, renew or extend any New
Lease with respect to the REO Property, if the New Lease by its terms will give
rise to any income that does not constitute Rents from Real Property;
(iii) permit any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real Property;
(iv) authorize or permit any construction on the REO Property,
other than the completion of a building or other improvement thereon, and then
only if more than thirty percent of the construction of such building or other
improvement was completed before default on the Mortgage Loan became imminent,
all within the meaning of Section 856(e)(4)(B) of the Code; or
(v) operate, other than through an Independent Contractor, or
allow any other Person to operate, other than through an Independent Contractor,
the REO Property on any date more than 90 days after the Acquisition Date;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel at the Trust's sole expense 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 (without giving effect to
the final sentence thereof) at any time that it is held by the applicable REMIC
Pool, in which case the Special Servicer may take such actions as are specified
in such Opinion of Counsel.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by the
Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, shall use
its reasonable best efforts to sell any REO Property in accordance with the
Servicing Standard, but prior to the end of the third calendar year following
the end of the year of its acquisition, but in any event prior to the Final
Rated Distribution Date, unless (i) the Trustee, on behalf of the applicable
REMIC Pool, has been granted an extension of time (an
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"Extension") (which extension shall be applied for at least 60 days prior to the
expiration of the period specified above) by the Internal Revenue Service to
sell such REO Property, in which case the Special Servicer shall continue to
attempt to sell the REO Property for its fair market value for such period
longer than the period specified above as such Extension permits or (ii) the
Special Servicer seeks and subsequently receives, at the expense of the Trust, a
Nondisqualification Opinion, addressed to the Trustee and the Special Servicer,
to the effect that the holding by the Trust of such REO Property subsequent to
the period specified above after its acquisition will not result in the
imposition of taxes on "prohibited transactions" of a REMIC, as defined in
Section 860F(a)(2) of the Code, or cause any REMIC to fail to qualify as a REMIC
at any time that any Certificates are outstanding. If the Trustee has not
received an Extension or such Opinion of Counsel and the Special Servicer is not
able to sell such REO Property within the period specified above, or if an
Extension has been granted and the Special Servicer is unable to sell such REO
Property within the extended time period, the Special Servicer shall, after
consultation with the Operating Adviser, before the end of such period or
extended period, as the case may be, auction the REO Property to the highest
bidder (which may be the Special Servicer) in accordance with the Servicing
Standard; provided, however, that no Interested Person shall be permitted to
purchase the REO Property at a price less than the Purchase Price except as
provided in Section 9.36; and provided, further that if the Special Servicer
intends to bid on any REO Property, (i) the Special Servicer shall notify the
Trustee of such intent, (ii) the Trustee shall promptly obtain, at the expense
of the Trust an Appraisal of such REO Property and (iii) the Special Servicer
shall not bid less than the fair market value set forth in such Appraisal.
Neither any Seller nor the Depositor may purchase REO Property at a price in
excess of the fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the Special
Servicer shall provide to the Trustee, the Paying Agent and the Master Servicer
a statement of accounting for such REO Property, including without limitation,
(i) the Acquisition Date for the REO Property, (ii) the date of disposition of
the REO Property, (iii) the sale price and related selling and other expenses,
(iv) accrued interest (including interest deemed to have accrued) on the
Specially Serviced Mortgage Loan to which the REO Property related, calculated
from the Acquisition Date to the disposition date, (v) final property operating
statements, and (vi) such other information as the Trustee or the Paying Agent
may reasonably request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in the Certificate Account within one Business Day
of receipt.
(d) The Special Servicer shall provide the necessary information to
the Master Servicer and the Paying Agent to allow the Master Servicer to
prepare, deliver and file reports of foreclosure and abandonment in accordance
with Section 6050J and Section 6050P, if required, of the Code with respect to
such REO Property and shall deliver such information with respect thereto as the
Master Servicer, the Paying Agent or the Trustee may request in writing.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection with
the enforcement of the rights of the Trust to any property securing any
Specially Serviced Mortgage Loan other than the related Mortgaged Property, the
Special Servicer shall consult with counsel to determine how best to enforce
such rights in a manner consistent with the REMIC Provisions and shall not,
based on a Nondisqualification Opinion addressed to the Special Servicer and the
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Trustee (the cost of which shall be an expense of the Trust) take any action
that could result in the failure of any REMIC Pool to qualify as a REMIC while
any Certificates are outstanding, unless such action has been approved by a vote
of 100% of each Class of Certificateholders (including the Class R-I, Class R-II
and Class R-III Certificateholders).
SECTION 9.17 SALE OF DEFAULTED MORTGAGE LOANS. In lieu of exercising
remedies pursuant to the terms of any Mortgage Loan and Mortgage, the Special
Servicer may sell a Specially Serviced Mortgage Loan that is a Defaulted
Mortgage Loan for cash in accordance with Section 9.36 hereof.
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. The
Special Servicer shall deliver to the Depositor, the Paying Agent, the Master
Servicer and the Trustee on or before the Report Date occurring in March of each
year, commencing in March 2000, an Officer's Certificate stating, as to the
signer thereof, that (A) a review of the activities of the Special Servicer
during the preceding calendar year or portion thereof and of the performance of
the Special Servicer under this Agreement has been made under such officer's
supervision and (B) to the best of such officer's knowledge, based on such
review, the Special Servicer has fulfilled all its obligations under this
Agreement in all material respects throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof. The Special Servicer
shall forward a copy of each such statement to the Rating Agencies.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. On or
before the Report Date occurring in April of each year, commencing in April
2000, the Special Servicer, at its expense, shall cause a firm of nationally
recognized independent public accountants that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Depositor, the Master Servicer, the Operating Adviser, the Paying Agent and the
Trustee to the effect that such firm has examined certain documents and records
relating to the servicing of the Mortgage Loans and that, on the basis of such
examination conducted substantially in compliance with the USAP or the FHLMC
Audit Program, such servicing for the preceding calendar year has been conducted
in compliance with such agreements except for such significant exceptions or
errors in records that, in the opinion of such firm, the USAP or FHLMC Audit
Program require it to report. The Special Servicer shall forward a copy of each
such report to the Rating Agencies.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which the
Special Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Special
Servicer shall be a party, or any Person succeeding to the business of the
Special Servicer, shall be the successor of the Special Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that each of the Rating Agencies
provides written acknowledgment that its rating of the Certificates in effect
immediately prior to such merger, consolidation, or succession will not be
qualified or reduced as a result of such merger, consolidation or succession. If
the conditions to the proviso in the foregoing sentence are not met, the Trustee
may terminate the Special Servicer's servicing of the Specially Serviced
Mortgage Loans pursuant hereto, such termination to be effected in the manner
set forth in Section 9.31.
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SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the Special
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Special Servicer's 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. Any such
determination permitting the resignation of the Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer, the Operating Adviser, and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Adviser
and the Trustee shall have (i) satisfied the requirements that would apply
pursuant to Section 9.20 hereof if a merger of the Special Servicer had
occurred, (ii) assumed the Special Servicer's responsibilities and obligations
under this Agreement and (iii) Rating Agency Confirmation shall have been
obtained. Notice of such resignation shall be given promptly by the Special
Servicer to the Master Servicer and the Trustee.
(b) The Special Servicer may resign from the obligations and duties
hereby imposed on it, upon reasonable notice to the Trustee, provided that (i) a
successor Special Servicer is (x) available, (y) reasonably acceptable to the
Operating Adviser, the Depositor, and the Trustee, and (z) willing to assume the
obligations, responsibilities and covenants to be performed hereunder by the
Special Servicer on substantially the same terms and conditions, and for not
more than equivalent compensation as that herein provided, (ii) the successor
Special Servicer has assets of at least $15,000,000 and (iii) Rating Agency
Confirmation is obtained with respect to such resignation, as evidenced by a
letter from each Rating Agency delivered to the Trustee. Any costs of such
resignation and of obtaining a replacement Special Servicer shall be borne by
the Special Servicer and shall not be an expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the Special Servicer hereunder in form and substance
reasonably satisfactory to the Trustee.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL SERVICER.
Except as expressly provided herein including Section 9.3, the Special Servicer
shall not 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 the Special Servicer hereunder; provided that the Special Servicer
shall have the right without the prior written consent of the Trustee to
delegate or assign to or subcontract with or authorize or appoint an Affiliate
of the Special Servicer to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Special Servicer hereunder.
In no case, however, shall any such delegation, subcontracting or assignment to
an Affiliate of the Special Servicer relieve the Special Servicer of any
responsibility, obligation or liability hereunder. Notice of such permitted
assignment shall be given promptly by the Special Servicer to the Master
Servicer and the Trustee, and any cost thereof shall be borne by the Special
Servicer.
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SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER AND
OTHERS.
(a) Neither the Special Servicer nor any of the directors, officers,
employees or agents of the Special Servicer shall be under any liability to the
Certificateholders or the Trustee for any action taken or for refraining from
the taking of any action in good faith and using reasonable business judgment;
provided that this provision shall not protect the Special Servicer or any such
person against any breach of a representation or warranty contained herein or
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in its performance of duties hereunder or by reason of
negligent disregard of obligations and duties hereunder. The Special Servicer
and any director, officer, employee or agent of the Special Servicer may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person (including, without limitation, the information and
reports delivered by or at the direction of the Master Servicer or any director,
officer, employee or agent of the Master Servicer) respecting any matters
arising hereunder. The Special Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Specially Serviced Mortgage Loans in accordance with this
Agreement; provided that the Special Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee in the
Specially Serviced Mortgage Loans, or shall undertake any such action if
instructed to do so by the Trustee. In such event, all legal expenses and costs
of such action (other than those that are connected with the routine performance
by the Special Servicer of its duties hereunder) shall be expenses and costs of
the Trust, and the Special Servicer shall be entitled to be reimbursed therefor
as provided by Section 5.2 hereof. Notwithstanding any term in this Agreement,
the Special Servicer shall not be relieved from liability to, or entitled to
indemnification from, the Trust for any action taken by it at the direction of
the Operating Adviser which is in conflict with the Servicing Standard.
(b) In addition, the Special Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Special Servicer and conforming to the requirements of
this Agreement. Neither the Special Servicer, nor any director, officer,
employee, agent or Affiliate, shall be personally liable for any error of
judgement made in good faith by any officer, unless it shall be proved that the
Special Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Special Servicer, nor any director, officer, employee, agent
or Affiliate, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The Special
Servicer shall be entitled to rely on reports and information supplied to it by
the Master Servicer and the related Mortgagors and shall have no duty to
investigate or confirm the accuracy of any such report or information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicer, the Fiscal Agent, the Paying Agent or Trustee in
this Agreement. The Trust shall indemnify and hold harmless the Special Servicer
from any and all claims, liabilities, costs, charges, fees or other expenses
which relate to or arise from any such breach of representation, warranty or
covenant to the extent such amounts are not recoverable from the party
committing such breach.
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(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, 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 believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Special Servicer shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers conferred upon it by
this Agreement; and
(iv) the Special Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed or in good faith
believed by it to be genuine and provided by any Mortgagor or manager of a
Mortgaged Property.
The Special Servicer and any director, officer, employee or agent of
the Special Servicer shall be indemnified by the Trustee, the Fiscal Agent and
the Paying Agent, as the case may be, and held harmless against any loss,
liability or expense including reasonable attorneys' fees incurred in connection
with any legal action relating to the Trustee's, the Fiscal Agent's or Paying
Agent's, as the case may be, respective willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or by reason of
negligent disregard by such Person of its respective duties hereunder, other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence in the performance of any of the Special Servicer's
duties hereunder or by reason of negligent disregard of the Special Servicer's
obligations and duties hereunder. The Special Servicer shall promptly notify the
Trustee, the Fiscal Agent and Paying Agent if a claim is made by a third party
entitling the Special Servicer to indemnification hereunder, whereupon the
Trustee or the Paying Agent, as applicable, shall assume the defense of any such
claim (with counsel reasonably satisfactory to the Special Servicer). Any
failure to so notify the Trustee or the Paying Agent, as applicable, shall not
affect any rights the Special Servicer may have to indemnification hereunder or
otherwise, unless the interest of the Trustee or the Paying Agent, as
applicable, is materially prejudiced thereby. The indemnification provided
herein shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Special
Servicer hereunder. Any payment hereunder made by the Trustee, the Fiscal Agent
or Paying Agent, as the case may be, pursuant to this paragraph to the Special
Servicer shall be paid from the Trustee's, Fiscal Agent's or Paying Agent's, as
the case may be, own funds, without reimbursement from the Trust therefor,
except achieved through subrogation as provided in this Agreement.
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SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer, employee or
agent of the Special Servicer shall be indemnified by the Trust, and held
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action relating to (i) this
Agreement, and (ii) any action taken by the Special Servicer in accordance with
the instruction delivered in writing to the Special Servicer by the Trustee or
the Master Servicer pursuant to any provision of this Agreement in each case and
the Special Servicer and each of its directors, officers, employees and agents
shall be entitled to indemnification from the Trust for any loss, liability or
expense (including attorney's fees) incurred in connection with the provision by
the Special Servicer of any information included by the Special Servicer in the
report required to be provided by the Special Servicer pursuant to this
Agreement, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer shall promptly notify the Trustee and the Paying
Agent if a claim is made by a third party with respect hereto or the Specially
Serviced Mortgage Loans entitling the Special Servicer to indemnification
hereunder, whereupon the Trustee shall assume the defense of any such claim
(with counsel reasonably satisfactory to the Special Servicer) and the Trust
shall pay, from amounts on deposit in the Certificate Account pursuant to
Section 5.2, all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Trustee or the Paying Agent shall not affect any rights the Special Servicer may
have to indemnification hereunder or otherwise, unless the interest of the Trust
is materially prejudiced thereby. The indemnification provided herein shall
survive the termination of this Agreement and the termination or resignation of
the Special Servicer. Any expenses incurred or indemnification payments made by
the Special Servicer shall be reimbursed by the party responsible, or if not
recovered by the Special Servicer from such Person, then by the Trust, if a
court of competent jurisdiction makes a final, non-appealable judgment that the
conduct of the Special Servicer was not culpable.
(b) The Special Servicer agrees to indemnify the Trust, and the
Trustee, the Fiscal Agent, the Paying Agent, the Depositor, the Master Servicer
and any director, officer, employee or agent or Controlling Person of the
Trustee, the Fiscal Agent, the Paying Agent, the Depositor and the Master
Servicer, and hold them harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that the Trust or the Trustee, the Fiscal
Agent, the Paying Agent, the Depositor or the Master Servicer may sustain
arising from or as a result of the willful misfeasance, bad faith or negligence
in the performance of duties hereunder or by reason of negligent disregard of
obligations and duties hereunder by the Special Servicer. The Trustee, the
Fiscal Agent, the Paying Agent, the Depositor or the Master Servicer shall
immediately notify the Special Servicer if a claim is made by a third party with
respect to this Agreement or the Specially Serviced Mortgage Loans entitling the
Trust or the Trustee, the Fiscal Agent, the Paying Agent, the Depositor or the
Master Servicer, as the case may be, to indemnification hereunder, whereupon the
Special Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Trustee, the Fiscal Agent, the Paying Agent, the
Depositor or the Master Servicer, as the case may be) and pay all expenses in
connection therewith,
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including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Special Servicer shall not affect any rights the Trust
or the Trustee, the Fiscal Agent, the Paying Agent, the Depositor or the Master
Servicer may have to indemnification under this Agreement or otherwise, unless
the Special Servicer's defense of such claim is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of this
Agreement and the termination or resignation of the Special Servicer or the
Trustee or Fiscal Agent. Any expenses incurred or indemnification payments made
by the Special Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final, non-appealable judgment that the conduct
of the Special Servicer was not culpable or found to have acted with willful
misfeasance, bad faith or negligence.
(c) The initial Special Servicer and the Depositor expressly agree
that the only information furnished by or on behalf of the Special Servicer for
inclusion in the Prospectus Supplement is the information set forth in the
paragraphs under the caption "SERVICING OF THE MORTGAGE LOANS -- The Special
Servicer" of the Preliminary Prospectus Supplement and Final Prospectus
Supplement.
SECTION 9.25 [RESERVED.]
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The Special
Servicer or any agent of the Special Servicer (if the Special Servicer is not
Xxxxx Fargo Bank, National Association unless Xxxxx Fargo Bank, National
Association acquires the Certificates at the then fair market value of such
Certificates) in its individual capacity or in any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if they
were not the Special Servicer or such agent. Any such interest of the Special
Servicer or such agent in the Certificates shall not be taken into account when
evaluating whether actions of the Special Servicer are consistent with its
obligations in accordance with the Servicing Standard regardless of whether such
actions may have the effect of benefiting the Class or Classes of Certificates
owned by the Special Servicer.
SECTION 9.27 TAX REPORTING. From and after the Closing Date, the
Special Servicer shall provide the necessary information to the Master Servicer
to allow the Master Servicer to comply with the Mortgagor tax reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code with respect
to any Specially Serviced Mortgage Loan. The Special Servicer shall provide to
the Master Servicer copies of any such reports. The Master Servicer shall
forward such reports to the Trustee and the Paying Agent.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated that
the Master Servicer will be collecting all payments with respect to the Mortgage
Loans (other than payments with respect to REO Income). If, however, the Special
Servicer should receive any payments with respect to any Mortgage Loan (other
than REO Income) it shall, within one Business Day of receipt from the Mortgagor
or otherwise of any amounts attributable to payments with respect to or the sale
of any Mortgage Loan or any Specially Serviced Mortgage Loan, if any, (but not
including REO Income, which shall be deposited in the applicable REO Account as
provided in Section 9.14 hereof), either, (i) forward such payment (endorsed, if
applicable, to the order of the Master Servicer), to the Master Servicer, or
(ii) deposit such amounts, or cause such amounts to
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be deposited, in the Certificate Account. The Special Servicer shall notify the
Master Servicer of each such amount received on or before the date required for
the making of such deposit or transfer, as the case may be, indicating the
Mortgage Loan or Specially Serviced Mortgage Loan to which the amount is to be
applied and the type of payment made by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS. The Special Servicer
shall act in accordance with this Agreement and the provisions of the Code
relating to REMICs in order to create or maintain the status of any REMIC Pool
as a REMIC under the Code or, as appropriate, adopt a plan of complete
liquidation. The Special Servicer shall not take any action or cause any REMIC
to take any action that would (i) endanger the status of any REMIC as a REMIC
under the Code or (ii) subject to Section 9.14(e), result in the imposition of a
tax upon any REMIC (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) or on prohibited
contributions pursuant to Section 860G(d)) unless the Master Servicer and the
Trustee have received a Nondisqualification Opinion (at the expense of the party
seeking to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such tax. The Special
Servicer shall comply with the provisions of Article XII hereof.
SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special Servicer
created hereby (other than the obligation of the Special Servicer to make
payments to the Master Servicer as set forth in Section 9.28 and the obligations
of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall
terminate on the date which is the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining outstanding or,
(B) the disposition of all REO Property in respect of any Specially Serviced
Mortgage Loan, (ii) 60 days following the date on which the Trustee or the
Operating Adviser has given written notice to the Special Servicer that this
Agreement is terminated pursuant to Section 9.30(b) or 9.30(c), respectively,
and (iii) the effective date of any resignation of the Special Servicer effected
pursuant to and in accordance with Section 9.21.
(b) The Trustee may terminate the Special Servicer in the event that
(i) the Special Servicer has failed to remit any amount required to be remitted
to the Trustee, the Master Servicer, the Fiscal Agent, the Paying Agent or the
Depositor under the terms of this Agreement, (ii) the Special Servicer has
breached any material obligation set forth in this Agreement and has failed to
cure such breach within thirty (30) days after written notice of such failure,
requiring the same to be remedied, shall have been given to the Special Servicer
by the Trustee or the Master Servicer, that materially and adversely affects the
interests of the Certificateholders, provided, however, that if the Special
Servicer certifies to the Trustee and the Depositor that the Special Servicer is
in good faith attempting to remedy such failure, such cure period will be
extended to the extent necessary to permit the Special Servicer to cure such
failure; provided, however, that such cure period may not exceed 90 days; (iii)
the Special Servicer has made one or more false or misleading representations or
warranties herein that materially and adversely affects the interest of the
Certificateholder, and has failed to cure such breach within thirty (30) days
after notice by the Trustee or the Master Servicer, provided, however, that if
the Special Servicer certifies to the Trustee and the Depositor that the Special
Servicer is in good faith
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attempting to remedy such failure, such cure period will be extended to the
extent necessary to permit the Special Servicer to cure such failure; provided,
however, that such cure period may not exceed 90 days; (iv) the Trustee shall
receive notice from any Rating Agency to the effect that the continuation of the
Special Servicer in such capacity would result in the downgrade, qualification
or withdrawal of any rating then assigned by such Rating Agency to any Class of
Certificates; (v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Special Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; (vi) the Special Servicer 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 relating to the Special Servicer or of or
relating to all or substantially all of its property; or (vii) the Special
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any corporate
action in furtherance of the foregoing. Such termination shall be effective on
the date after the date of any of the above events that the Trustee specifies in
a written notice to the Special Servicer specifying the reason for such
termination.
(c) The Operating Adviser shall have the right to direct the Trustee
to terminate the Special Servicer, provided that the Operating Adviser shall
appoint a successor Special Servicer who will (i) be reasonably satisfactory to
the Trustee and to the Depositor, and (ii) execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, whereby
the successor Special Servicer agrees to assume and perform punctually the
duties of the Special Servicer specified in this Agreement; and provided,
further, that the Trustee shall have received Rating Agency Confirmation from
each Rating Agency prior to the termination of the Special Servicer. The Special
Servicer shall not be terminated pursuant to this subsection (c) until a
successor Special Servicer shall have been appointed.
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Special Servicer to the Trustee
and the Paying Agent no later than the later of (i) five Business Days after the
final payment or other liquidation of the last Mortgage Loan or (ii) the sixth
day of the month in which the final Distribution Date will occur. Upon any such
termination, the duties of the Special Servicer (other than the obligations of
the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall terminate
and the Special Servicer shall transfer to the Master Servicer the amounts
remaining in each REO Account and shall thereafter terminate each REO Account
and any other account or fund maintained with respect to the Specially Serviced
Mortgage Loans.
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(b) On the date specified in a written notice of termination given
to the Special Servicer pursuant to clause (ii) of Section 9.30(a), all
authority, power and rights of the Special Servicer under this Agreement,
whether with respect to the Specially Serviced Mortgage Loans or otherwise,
shall terminate; provided, that in no event shall the termination of the Special
Servicer be effective until the Trustee or other successor Special Servicer
shall have succeeded the Special Servicer as successor Special Servicer,
notified the Special Servicer of such designation, and such successor Special
Servicer shall have assumed the Special Servicer's obligations and
responsibilities, as set forth in an agreement substantially in the form hereof,
with respect to the Specially Serviced Mortgage Loans. The Trustee or other
successor Special Servicer may not succeed the Special Servicer as Special
Servicer until and unless it has satisfied the provisions that would apply to a
Person succeeding to the business of the Special Servicer pursuant to Section
9.20 hereof. The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination. The Special Servicer agrees to cooperate with the Trustee and the
Fiscal Agent in effecting the termination of the Special Servicer's
responsibilities and rights hereunder as Special Servicer including, without
limitation, providing the Trustee all documents and records in electronic or
other form reasonably requested by it to enable the successor Special Servicer
designated by the Trustee to assume the Special Servicer's functions hereunder
and to effect the transfer to such successor for administration by it of all
amounts which shall at the time be or should have been deposited by the Special
Servicer in any REO Account and any other account or fund maintained or
thereafter received with respect to the Specially Serviced Mortgage Loans.
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced Mortgage Loan,
shall provide to the Master Servicer, the Paying Agent, and the Trustee on or
prior to the Determination Date for each month, a Special Servicer Monthly
Report substantially in the form of Exhibit O or in such electronic format as is
mutually acceptable to the Master Servicer and the Special Servicer. The Master
Servicer, the Paying Agent, and the Trustee may use such reports or information
contained therein to prepare its reports and the Master Servicer may, at its
option, forward such Special Servicer Monthly Reports directly to the Depositor
and the Rating Agencies. The Special Servicer Monthly Report shall be
substantially in the form of Exhibit O and shall contain a narrative description
for each Specially Serviced Mortgage Loan of the current status of such Loan
including the status of any workout or foreclosure, the change in such status
since the prior Special Servicer Monthly Report, and other information described
in Exhibit O.
(b) The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each Final Recovery Determination with respect to 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 Paying Agent and the Master Servicer no later than the ten Business
Day following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Master Servicer or the
Paying Agent at the reasonable request in writing of the Master Servicer or
Paying Agent, any
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information in its possession with respect to the Specially Serviced Mortgage
Loans which the Master Servicer or Paying Agent, as the case may be, shall
require in order for the Master Servicer or Paying Agent to comply with its
obligations under this Agreement; provided that the Special Servicer shall not
be required to take any action or provide any information that the Special
Servicer determines will result in any material cost or expense to which it is
not entitled to reimbursement hereunder or will result in any material liability
for which it is not indemnified hereunder. The Master Servicer will provide the
Special Servicer at the request of the Special Servicer any information in its
possession with respect to the Mortgage Loans which the Master Servicer shall
require in order for the Special Servicer to comply with its obligations under
this Agreement.
(d) Not later than 20 days after each Special Servicer Remittance
Date, the Special Servicer shall forward to the Master Servicer a statement
setting forth the status of each REO Account as of the close of business on such
Special Servicer Remittance Date, stating that all remittances required to be
made by it as required by this Agreement to be made by the Special Servicer have
been made (or, if any required distribution has not been made by the Special
Servicer, specifying the nature and status thereof) and showing, for the period
from the day following the preceding Special Servicer Remittance Date to such
Special Servicer Remittance Date, the aggregate of deposits into and withdrawals
from each REO Account for each category of deposit specified in Section 5.1 of
this Agreement and each category of withdrawal specified in Section 5.2 of this
Agreement.
(e) The Special Servicer shall use reasonable efforts to obtain and,
to the extent obtained, to deliver to the Master Servicer, the Paying Agent and
the Operating Adviser, on or before April 15 of each year, commencing with April
15, 2000, (i) copies of the prior year operating statements and quarterly
statements, if available, for each Mortgaged Property underlying a Specially
Serviced Mortgage Loan or REO Property as of its fiscal year end, provided that
either the related Mortgage Note or Mortgage requires the Mortgagor to provide
such information, or if the related Mortgage Loan has become an REO Property,
(ii) a copy of the most recent rent roll available for each Mortgaged Property,
and (iii) a table, setting forth the Debt Service Coverage Ratio and occupancy
with respect to each Mortgaged Property covered by the operating statements
delivered above.
(f) The Special Servicer shall deliver to the Master Servicer, the
Paying Agent, the Depositor and the Trustee all such other information with
respect to the Specially Serviced Mortgage Loans at such times and to such
extent as the Master Servicer, the Paying Agent, the Trustee or Depositor may
from time to time reasonably request; provided, however, that the Special
Servicer shall not be required to produce any ad hoc non-standard written
reports with respect to such Mortgage Loans except if any Person (other than
Paying Agent or the Trustee) requesting such report pays a reasonable fee to be
determined by the Special Servicer.
(g) The Special Servicer shall deliver a written Inspection Report
of each Specially Serviced Mortgage Loan in accordance with Section 9.4(b).
(h) The Special Servicer shall provide as soon as practicable after
a Mortgage Loan becomes a Specially Serviced Mortgage Loan, to the Master
Servicer its estimate of the net recoverable amount to the Certificateholders
and anticipated expenses in connection therewith
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(and a general description of the plan to achieve such recovery) of such
Specially Serviced Mortgage Loan and other information reasonably requested by
the Master Servicer. The Special Servicer shall update such information on a
quarterly basis.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER SERVICER
AND PAYING AGENT.
(a) The Special Servicer shall furnish on a timely basis such
reports, certifications, and information as are reasonably requested by the
Master Servicer or Paying Agent to enable it to perform its duties under this
Agreement; provided that no such request shall (i) require or cause the Special
Servicer to violate the Code, any provision of this Agreement, including the
Special Servicer's obligation to act in accordance with the servicing standards
set forth in this Agreement and to maintain the REMIC status of any REMIC Pool
or (ii) expose the Special Servicer, the Trust, the Fiscal Agent, the Paying
Agent, or the Trustee to liability or materially expand the scope of the Special
Servicer's responsibilities under this Agreement. In addition, the Special
Servicer shall notify the Master Servicer of all expenditures incurred by it
with respect to the Specially Serviced Mortgage Loans which are required to be
made by the Master Servicer as Servicing Advances as provided herein, subject to
the provisions of Section 4.4 hereof. The Special Servicer shall also remit all
invoices relating to Servicing Advances promptly upon receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters, the expense of which shall be charged to the Operating
Adviser, but in no event shall such costs be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property relating
to a Specially Serviced Mortgage Loan would be in the best economic interest of
the Trust;
(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the cost,
time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any "due-on-sale"
clause or "due-on-encumbrance" clause contained in a Mortgage Loan or a
Specially Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement
from or with a person to whom a Mortgaged Property securing a Specially Serviced
Mortgage Loan has been or is about to be conveyed, or to release the original
Mortgagor from liability upon a Specially Serviced Mortgage Loan and substitute
a new Mortgagor, and whether the credit status of the prospective new Mortgagor
is in compliance with the Special Servicer's regular commercial mortgage
origination or servicing standard;
(v) in connection with the foreclosure on a Specially Serviced
Mortgage Loan secured by a Mortgaged Property which is not in compliance with
CERCLA, or any comparable environmental law, whether it is in the best economic
interest of the Trust to bring the Mortgaged Property into compliance therewith
and an estimate of the cost to do so; and
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(vi) with respect to any proposed modification (which shall
include any proposed release, substitution or addition of collateral),
extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan,
prepare a summary of such proposed action and an analysis of whether or not such
action is reasonably likely to produce a greater recovery on a present value
basis than liquidation of such Mortgage Loan; such analysis shall specify the
basis on which the Special Servicer made such determination, including the
status of any existing material default or the grounds for concluding that a
payment default is imminent.
SECTION 9.34 CERTAIN REMIC LIMITATIONS ON MODIFICATION OF SPECIALLY
SERVICED MORTGAGE LOANS. Notwithstanding anything to the contrary in this
Agreement, the Special Servicer shall not permit any modification of any Money
Term of a Specially Serviced Mortgage Loan unless (i) the Special Servicer shall
have received a Nondisqualification Opinion or a ruling from the Internal
Revenue Service to the effect that such modification would not be treated as an
exchange pursuant to Section 1001 of the Code (or, if it would be so treated,
would not be treated as a "significant modification" for purposes of Treasury
Regulations Sec 1.860G-2(B) of the Code), the reasonable cost of which opinion
shall be an expense of the Trust or (ii) such modification meets the
requirements set forth in Section 9.5.
SECTION 9.35 [RESERVED.]
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS AND REO PROPERTIES.
(a) The Special Servicer may, after providing notice to the
Operating Adviser, subject to the limitations in paragraph (d) below, offer to
sell for cash to any Person, for an amount equal to the Purchase Price therefor,
any REO Property or Defaulted Mortgage Loan. In the case of REO Property, the
Special Servicer shall offer to sell such REO Property no later than the time
determined by the Special Servicer to be sufficient to result in the sale of
such REO Property on or prior to the date specified in Section 9.15 and in any
event prior to the Final Rated Distribution Date. The Special Servicer shall
give the Operating Adviser, the Master Servicer, the Paying Agent and the
Trustee not less than five days' prior written notice of its intention to sell
any such Defaulted Mortgage Loan or REO Property, and in respect of such sale,
the Special Servicer shall offer such Defaulted Mortgage Loan or REO Property
for sale in a fair auction or other manner as is consistent with the Servicing
Standard and shall accept the highest cash bid received in such auction or other
procedure from any Person for any Defaulted Mortgage Loan or REO Property in an
amount, except as otherwise provided in this Section at least equal to the
Purchase Price therefor.
In the absence of a bid in an amount at least equal to the Purchase
Price (after deducting allocable expenses), the Special Servicer shall accept
the highest bid received from any Person other than the Master Servicer, the
Special Servicer or the Operating Adviser, if any, that the Special Servicer
determines to be a fair price for the Defaulted Mortgage Loan or REO Property.
However, the Special Servicer may be the purchaser of a Defaulted Mortgage Loan
or a related REO Property only if the price at which the Special Servicer
purchases is at least equal to the highest bid and it has received at least
three bids from non-affiliated parties. Notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or any REO
Property. The Special Servicer shall not accept a bid from Xxxxx Fargo Bank,
National
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Association, either Seller or the Depositor unless such bid is in the good faith
judgment of the Special Servicer, equal to (and not greater than) the then
market value of such REO Property or the fair price of the Defaulted Mortgaged
Loan.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest cash bid if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such bid would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower bid (including a bid lower
than the Purchase Price) of a Person other than an Interested Person or the
Operating Adviser, if any, if it determines, in accordance with the Servicing
Standard, that acceptance of such bid would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower bid
is more likely to perform its obligations, or the terms offered by the
prospective buyer making the lower bid are more favorable), provided, that if
any Defaulted Mortgage Loan or REO Property as to which an Appraisal Reduction
has occurred is to be sold by the Special Servicer, then the Special Servicer
shall not, without the approval of the Operating Adviser, if any, accept any bid
for such loan or property that is less than 90% of the appraised value of the
related Mortgaged Property (based on the appraisal used in determining the
related Appraisal Reduction). The Special Servicer, after notice to the
Operating Adviser, if any, shall determine no later than six months prior to the
end of the two-year period referred in Section 9.15 with respect to any REO
Property whether a sale of such REO Property pursuant to any bids being made
with respect thereto is in the best economic interests of the Certificateholders
as a whole. If the Special Servicer so determines in accordance with the
Servicing Standard after notice to the Operating Adviser, if any, that such a
sale would not be in the best interests of the Certificateholders, the Special
Servicer shall seek an extension of such period in the manner described in
Section 9.15.
In determining whether any bid received from an Interested Person or
whether the price to be paid by the Special Servicer or any Affiliate thereof
represents a fair price or market value for any Defaulted Mortgage Loan or any
REO Property, the Special Servicer may rely conclusively on the opinion of the
value of such REO Property by an independent MAI-designated appraiser selected
by the Trustee at the expense of the Trust. In determining whether any bid
constitutes a fair price or market value for any Defaulted Mortgage Loan or any
REO Property, the Special Servicer shall take into account, among other factors,
the period and amount of any delinquency on the affected Defaulted Mortgage
Loan, the physical condition of the related Mortgaged Property or such REO
Property, the state of the local economy and the Trust's obligation to dispose
of any REO Property within the two-year period specified in Section 9.15.
(b) Subject to the REMIC Provisions, the Special Servicer shall act
on behalf of the Trust in negotiating and taking any other action necessary or
appropriate in connection with the sale of any Defaulted Mortgage Loan or REO
Property, including the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Mortgage Loan or REO Property shall be
without recourse to, or representation or warranty by, the Trustee, the Paying
Agent, the Fiscal Agent, the Depositor, the Special Servicer, the Master
Servicer, or the Trust. Notwithstanding the foregoing, nothing herein shall
limit the liability of the Master Servicer, the Special Servicer or the Trustee
to the Trust and the Certificateholders for failure to perform its duties in
accordance herewith. None of the Special Servicer, the Master Servicer, the
Depositor,
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the Paying Agent, the Fiscal Agent or the Trustee shall have any liability to
the Trust or any Certificateholder with respect to the price at which a
Defaulted Mortgage Loan is sold if the sale is consummated in accordance with
the terms of this Agreement.
(c) The proceeds of any sale after deduction of the expenses of such
sale incurred in connection therewith shall be deposited within one Business Day
in the Certificate Account.
(d) Notwithstanding anything herein to the contrary, the Special
Servicer shall not be required to take or refrain from taking any action
pursuant to instructions from the Operating Adviser that would cause it to
violate any term or provision of this Agreement, including the REMIC Provisions
and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the operating adviser (the "Operating
Adviser"). The Operating Adviser shall be elected for the purpose of receiving
reports and information from the Special Servicer in respect of the Specially
Serviced Mortgage Loans.
(b) An election of an Operating Adviser also shall be held upon the
resignation or removal of the Person acting as Operating Adviser. Notice of the
meeting of the Holders of the Controlling Class shall be mailed or delivered to
each Holder by the Paying Agent, at the direction of the Trustee not less than
10 nor more than 60 days prior to the meeting. The notice shall state the place
and the time of the meeting, which may be held by telephone. A majority of
Certificate Balance of the Certificates of the then Controlling Class, present
in person or represented by proxy, shall constitute a quorum for the nomination
of an Operating Adviser. At the meeting, each Holder shall be entitled to
nominate one Person to act as Operating Adviser. The Trustee shall cause the
election of the Operating Adviser to be held as soon thereafter as is reasonably
practicable.
(c) Each Holder of the Certificates of the Controlling Class shall
be entitled to vote in each election of the Operating Adviser. The voting in
each election of the Operating Adviser shall be in writing mailed, telecopied,
delivered or sent by courier and actually received by the Paying Agent on or
prior to the date of such election. Immediately upon receipt by the Paying Agent
of votes (which have not been rescinded) from the Holders of Certificates
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class which are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Operating Adviser. The Paying Agent shall
promptly notify the Trustee of the identity of the Operating Advisor. Until an
Operating Advisor is elected or in the event that an Operating Adviser shall
have resigned or been removed and a successor Operating Adviser shall not have
been elected, there shall be no Operating Adviser.
(d) The Operating Adviser may be removed at any time by the written
vote, copies of which must be delivered to the Paying Agent or Trustee, of more
than 50% of the Certificate Balance of the Holders of the Certificates of the
then Controlling Class.
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(e) The Trustee shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Trustee
shall be conclusive. Notwithstanding any other provisions of this Section 9.37,
the Trustee may make such reasonable regulations as it may deem advisable for
any election.
(f) Notwithstanding any provision of this Section 9.37 or any other
provision of this Agreement to the contrary, at any time that the Special
Servicer has been elected as Operating Adviser or no Operating Adviser has been
elected, (i) the Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than the Special Servicer is otherwise
required hereunder to provide notices or information to, or obtain the consent
or approval of, the Operating Adviser, such Person shall be required to provide
such notices or information to, or obtain the consent or approval of, the
Special Servicer.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust or the Certificateholders
for any action taken, or for refraining from the taking of any action, in good
faith and using reasonable business judgment pursuant to this Agreement, or
using reasonable business judgment. By its acceptance of a Certificate, each
Certificateholder (and Certificate Owner) confirms its understanding that the
Operating Adviser may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that the
Operating Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates and each
Certificateholder (and Certificate Owner) agrees to take no action against the
Operating Adviser based upon such special relationship or conflict.
Notwithstanding any term in this Agreement, the Special Servicer shall not be
entitled to indemnification from the Trust for any action taken by it at the
direction of the Operating Adviser which is in conflict with the Servicing
Standard.
SECTION 9.39 DUTIES OF OPERATING ADVISER. The Operating Adviser may
advise, and receive notice from, the Special Servicer, but is not required to do
so on any of the following actions:
(i) any foreclosure upon or comparable conversion (which may
include acquisition of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification of a Money Term of a Mortgage Loan other
than a modification consisting of the extension of the original Maturity Date of
a Mortgage Loan for two years or less;
(iii) any proposed sale of a Defaulted Mortgage Loan (other
than upon termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into
compliance with Environmental Laws; and
(v) any acceptance of substitute or additional collateral for
a Mortgage Loan.
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In addition, the Operating Adviser may direct the Trustee to
remove the Special Servicer at any time upon the appointment and acceptance of
such appointment by a successor to the Special Servicer appointed by the
Operating Adviser; provided that, prior to the effectiveness of any such
appointment, the Trustee shall have received (A) Rating Agency Confirmation from
each Rating Agency and (B) a Nondisqualification Opinion (which shall not be an
expense of the Trustee or the Trust).
ARTICLE X
PURCHASE AND
TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR
LIQUIDATION OF ALL MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee and
Paying Agent created hereby (other than the obligation of the Paying Agent, to
make payments to the Class R-I Certificateholders, the Class R-II
Certificateholders and REMIC III Certificateholders as set forth in Section 10.2
and other than the obligations in the nature of information or tax reporting)
shall terminate on the earliest of (i) the later of (A) the final payment or
other liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) or (iii) the termination of the Trust
pursuant to Section 10.1(c) below; provided 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.
(b) The Master Servicer shall give the Trustee and Paying
Agent notice of the date when the Aggregate Certificate Balance of the
Certificates, after giving effect to distributions of principal made on the next
Distribution Date, is less than or equal to one percent (1%) of the initial
Aggregate Certificate Balance of the Certificates as of the Cut-Off Date. The
Trustee shall promptly forward such notice to the Depositor, the Master
Servicer, the Special Servicer and the Holders of the Class R-I Certificates,
who in such priority (and in the case of the Class R-I Certificateholders, a
majority of the Class R-I Certificateholders), may purchase, in whole only, the
Mortgage Loans and any other property, if any, remaining in the Trust. If any
party desires to exercise such option, it will notify the Trustee who will
notify any party with a prior right to exercise such option. If any party that
has been provided notice by the Trustee notifies the Trustee within ten Business
Days after receiving notice of the proposed purchase that it wishes to purchase
the assets of the Trust, then such party (or, in the event that more than one of
such parties notifies the Trustee that it wishes to purchase the assets of the
Trust, the party with the first right to purchase the assets of the Trust) may
purchase the assets of the Trust in accordance with this Agreement. Upon the
Paying Agent's receipt of the Termination Price set forth below, the Trustee
shall promptly release or cause to be released to the Master Servicer for the
benefit of the Depositor, the Holder of the majority of the Class R-I
Certificates, the Special Servicer or the Master Servicer, as the case may be,
the Mortgage Files pertaining to the Mortgage Loans. The "Termination Price"
shall equal 100% of the aggregate Principal Balances of the Mortgage Loans
(other than Mortgage Loans as to which a Final Recovery Determination
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has been made) on the day of such purchase plus accrued and unpaid interest
thereon at the applicable Mortgage Rates (or Mortgage Rates less the Servicing
Fee Rate, if the Master Servicer is the Purchaser), with respect to the Mortgage
Loans to the Due Date for each Mortgage Loan ending in the Collection Period
with respect to which such purchase occurs, plus unreimbursed Advances and
interest on such unreimbursed Advances at the Advance Rate, and the fair market
value of any other property remaining in REMIC I; provided, however, that if
Xxxxx Fargo is the purchaser, the Termination Price shall be the greater of the
foregoing amount and the fair market value of the Mortgage Loans and any other
property remaining in REMIC I. The Trustee shall consult with the Placement
Agents and the Underwriters or their respective successors, as advisers, in
order for the Trustee to determine whether the fair market value of the property
constituting the Trust has been offered; provided that, if either Placement
Agent or Underwriter or an Affiliate of the Placement Agents or Underwriters is
exercising its right to purchase the Trust assets, the Trustee shall consult
with the Operating Adviser in order for the Trustee to determine the fair market
value, provided that the Operating Adviser is not an Affiliate of the Depositor,
the Class R-I Holder, the Special Servicer or the Master Servicer, or a third
party chosen by the Depositor unless the Depositor is bidding for such property,
or the Trustee (the fees and expenses of which shall be paid for by buyer of the
property). As a condition to the purchase of the Trust pursuant to this Section
10.1(b), the Depositor, the Holder of the majority of the Class R-I
Certificates, the Special Servicer or the Master Servicer, as the case may be,
must deliver to the Trustee an Opinion of Counsel, which shall be at the expense
of the Depositor, such Holders, the Special Servicer or the Master Servicer, as
the case may be, stating that such termination will be a "qualified liquidation"
under section 860F(a)(4) of the Code. Such purchase shall be made in accordance
with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates
own 100% of the REMIC I Interests such Holders may terminate REMIC I (which will
in turn result in the termination of REMIC II and REMIC III) upon (i) the
delivery to the Trustee and the Depositor of an Opinion of Counsel (which
opinion shall be at the expense of such Holders) stating that such termination
will be a "qualified liquidation" of each REMIC under Section 860F of the Code,
and (ii) the payment of any and all costs associated with such termination. Such
termination shall be made in accordance with Section 10.3.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of
Section 10.1, specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Trustee by first class mail to the
Paying Agent, the Rating Agencies, the Class R-I and REMIC III
Certificateholders mailed no later than ten days prior to the date of such
termination. Such notice shall specify (A) the Distribution Date upon which
final distribution on the Class R-I, Class R-II and REMIC III Certificates will
be made, and upon presentation and surrender of the Class R-I, Class R-II and
REMIC III Certificates at the office or agency of the Certificate Registrar
therein specified, and (B) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distribution being made only upon
presentation and surrender of the Class R-I, Class R-II, and REMIC III
Certificates at the office or agency of the Certificate Registrar therein
specified. The Trustee shall give such notice to the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the Class
R-I, Class R-II and REMIC III Certificates. Upon any such termination, the
duties of the Certificate Registrar with
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respect to the Class R-I, Class R-II and REMIC III Certificates shall terminate
and the Trustee shall terminate, or request the Master Servicer and Paying Agent
to terminate, the Certificate Account and the Distribution Account and any other
account or fund maintained with respect to the Certificates, subject to the
Paying Agent's obligation hereunder to hold all amounts payable to the Class
R-I, Class R-II and REMIC III Certificateholders in trust without interest
pending such payment.
(b) In the event that all of the Holders do not surrender
their certificates evidencing the Class R-I, Class R-II and REMIC III
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Certificate Registrar shall give a
second written notice to the remaining Class R-I, Class R-II and REMIC III
Certificateholders to surrender their certificates evidencing the Class R-I,
Class R-II and REMIC III Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
any Class R-I, Class R-II and REMIC III Certificates shall not have been
surrendered for cancellation, the Certificate Registrar may take appropriate
steps to contact the remaining Class R-I, Class R-II and REMIC III
Certificateholders concerning surrender of such certificates, and the cost
thereof shall be paid out of the amounts distributable to such Holders. If
within two years after the second notice any such Class R-I, Class R-II and
REMIC III Certificates shall not have been surrendered for cancellation, the
Paying Agent shall, subject to applicable state law relating to escheatment,
hold all amounts distributable to such Holders for the benefit of such Holders.
No interest shall accrue on any amount held by the Trustee and not distributed
to a Class R-I, Class R-II and REMIC III Certificateholders due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section. Any money held by
the Paying Agent pending distribution under this Section 10.2 after 90 days
after the adoption of a plan of complete liquidation shall be deemed for tax
purposes to have been distributed from the REMICs and shall be beneficially
owned by the related Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC shall be terminated in accordance
with the following additional requirements, unless at the request of the Master
Servicer or the Class R-I Certificateholders, as the case may be, the Trustee
seeks, and the Trustee and the Paying Agent subsequently receive an Opinion of
Counsel (at the expense of the Master Servicer or the Class R-I
Certificateholders, as the case may be), addressed to the Depositor, the Trustee
and the Paying Agent to the effect that the failure of the Trust to comply with
the requirements of this Section 10.3 will not (i) result in the imposition of
taxes on "prohibited transactions" on any REMIC under the REMIC Provisions or
(ii) cause any REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) Within 89 days prior to the time of the making of
the final payment on the REMIC III Certificates the Master Servicer shall
prepare and the Trustee on behalf of the REMIC I Interests, REMIC II or REMIC
III shall adopt a plan of complete liquidation of the REMIC I Pool, meeting the
requirements of a qualified liquidation under the REMIC Provisions, which plan
shall be signed by the Trustee; provided that the Trustee shall have no
obligation to determine the accuracy or adequacy of such plan of liquidation
other than that such plan of liquidation meets the requirements outlined in
Sections 10.1, 10.2 and 10.3;
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(ii) At or after the time of adoption of such a plan
of complete liquidation and at or prior to the time of making of the final
payment on the REMIC III Certificates, the Trustee shall sell all of the assets
of the Trust for cash at the Termination Price; provided that if the Holders of
the Class R-I Certificates are purchasing the assets of the Trust, the amount to
be paid by such Holders may be paid net of the amount to be paid to such Holders
as final distributions on any Certificates held by such Holders;
(iii) At the time of the making of the final payment
on the Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, (A) to the Holders of the Class R-I Certificates all
assets of REMIC I remaining after such final payment of the REMIC Interests, (B)
to the Holders of the Class R-II Certificates all remaining assets of REMIC II
and (C) to the Holders of the Class R-III Certificates all remaining assets of
REMIC III (in each case other than cash retained to meet claims), and the Trust
shall terminate at that time; and
(iv) In no event may the final payment on the REMIC I
Regular Interests, REMIC II Regular Interests or REMIC Regular Certificates or
the final distribution or credit to the Holders of the Residual Certificates,
respectively, be made after the 89th day from the date on which the plan of
complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or Class
R-III Certificates, respectively, the Holders thereof hereby (i) authorize the
Trustee to take such action as may be necessary to adopt a plan of complete
liquidation of the REMIC Pool and (ii) agree to take such other action as may be
necessary to adopt a plan of complete liquidation of the Trust upon the written
request of the Depositor, which authorization shall be binding upon all
successor Class R-I, Class R-II and Class R-III Certificateholders,
respectively.
(c) On the final federal income tax return for each REMIC
Pool, the Paying Agent shall attach a statement specifying the date of the
adoption of the plan of liquidation.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
The provisions of this Article XI shall apply to each of the
REMIC I Regular Interests, REMIC II Regular Interests, REMIC Regular
Certificateholders and Residual Certificateholders to the extent appropriate.
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(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
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) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner
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otherwise control the Master Servicer or operation and management of the Trust,
or the obligations of the parties hereto, nor shall anything herein set forth,
or contained in the terms of the Certificates, be construed so as to constitute
the Certificateholders from time to time as partners or members of an
association, nor shall any Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing 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 unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding 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 cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty 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 and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee and
the Paying Agent, within fifteen days after receipt by the Certificate Registrar
of a request by the Trustee or Paying Agent, as the case may be, in writing, a
list, in such form as the Trustee or Paying Agent, as the case may be, may
reasonably require, of the names and addresses of the Certificateholders of each
Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special
Servicer, the Master Servicer, the Paying Agent, or three or more Holders
(hereinafter referred to as "applicants," with a single Person which (together
with its Affiliates) is the Holder of more than one Class of Certificates being
viewed as a single "applicant" for these purposes) apply in writing to the
Trustee, and such application states that the applicants desire to communicate
with other Holders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, send, at such Person's expense, the
written communication proffered by the applicants to all Certificateholders at
their addresses as they appear in the Certificate Register.
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(c) Every Holder, by receiving and holding a Certificate,
agrees with the Depositor, the Certificate Registrar, the Paying Agent, the
Master Servicer and the Trustee that neither the Depositor, the Certificate
Registrar, the Paying Agent, the Master Servicer 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.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor and
Paying Agent. Such instrument or instruments (as the action embodies therein and
evidenced thereby) are herein sometimes referred to as an "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agents shall be sufficient for
any purpose of this Agreement and conclusive in favor of the Trustee, the
Depositor and Paying Agent, if made in the manner provided in this Section. The
Trustee agrees to promptly notify the Depositor of any such instrument or
instruments received by it, and to promptly forward copies of the same.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other officer
the execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of such
officer's or member's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Trustee) shall be proved by the Certificate Register, and neither the Trustee
nor the Depositor nor the Paying Agent shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
Trustee, the Paying Agent or the Depositor in reliance thereon, whether or not
notation of such action is made upon such Certificate.
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ARTICLE XII
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC
Pool.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and the Distribution
Account, the Insurance Policies and any REO Properties as a REMIC under the
Code. Such election will be made on Form 1066 or other appropriate federal tax
or information return or any appropriate state return for the taxable year
ending on the last day of the calendar year in which the REMIC I Interests are
issued. For purposes of such election, the REMIC I Regular Interests shall each
be designated as a separate class of "regular interests" in the REMIC I and the
Class R-I Certificates shall be designated as the sole class of "residual
interests" in the REMIC I. Neither the Trustee nor the Paying Agent shall permit
the creation of any "interests" (within the meaning of Section 860G of the Code)
in any of the REMICs other than the REMIC I, REMIC II and REMIC III Regular
Interests and the Residual Certificates.
An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
under the Code. Such election will be made on Form 1066 or other appropriate
federal tax or information return or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the REMIC II
Interest is issued. For the purposes of such election, the REMIC II Regular
Interests shall be designated as the "regular interests" in REMIC II and the
Class R-II Certificates shall be designated as the sole class of the "residual
interests" in REMIC II.
An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC III Certificates are issued. For purposes of such election, the Class X-0,
Xxxxx X-0, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, and Class N Certificates, together with
the REMIC III Class O Regular Interest and the REMIC III Excess Interest, shall
be designated as the "regular interests" in REMIC III and the Class R-III
Certificates shall be designated as the sole class of "residual interests" in
REMIC III.
(b) The Closing Date is hereby designated as the "Startup Day"
of each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Paying Agent shall pay all routine tax related
expenses (not including any taxes, however denominated, including any additions
to tax, penalties and interest) of each REMIC Pool, excluding any professional
fees or extraordinary expenses related to audits or any administrative or
judicial proceedings with respect to each REMIC Pool that involve the Internal
Revenue Service or state tax authorities.
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(d) The Paying Agent shall cause to be prepared, signed, and
timely filed with the Internal Revenue Service, on behalf of each REMIC Pool, an
application for a taxpayer identification number for such REMIC Pool on Internal
Revenue Service Form SS-4. The Paying Agent, upon receipt from the Internal
Revenue Service of the Notice of Taxpayer Identification Number Assigned, shall
promptly forward a copy of such notice to the Depositor and the Master Servicer.
The Paying Agent shall prepare and file Form 8811 on behalf of each REMIC Pool
and shall designate an appropriate Person to respond to inquiries by or on
behalf of Certificateholders for original issue discount and related information
in accordance with applicable provisions of the Code.
(e) The Paying Agent shall prepare and file all of each REMIC
Pool's federal and state income or franchise tax and information returns as such
REMIC Pool direct representative; the expenses of preparing such returns shall
be borne by the Paying Agent and the cost of filing such returns shall be borne
by the applicable REMIC Pool, except that if additional state tax returns are
required to be filed in more than three states, the Paying Agent shall be
entitled, with respect to any such additional filings, to (i) be paid a
reasonable fee and (ii) receive its reasonable costs and expenses, both as
amounts reimbursable pursuant to Section 5.2(a)(vi) hereof. The Depositor, the
Master Servicer and the Special Servicer shall provide on a timely basis to the
Paying Agent or its designee such information with respect to the Trust or any
REMIC Pool as is in its possession, which the Depositor or the Master Servicer
and the Special Servicer has received or prepared by virtue of its role as
Depositor or Master Servicer and the Special Servicer hereunder and reasonably
requested by the Paying Agent to enable it to perform its obligations under this
subsection, and the Paying Agent shall be entitled to conclusively rely on such
information in the performance of its obligations hereunder. The Depositor shall
indemnify the Trust and the Paying Agent and the Trustee and Fiscal Agent for
any liability or assessment against any of them or cost or expense (including
attorneys' fees) incurred by them resulting from any error resulting from bad
faith, negligence, or willful malfeasance of the Depositor in providing any
information for which the Depositor is responsible for preparing. The Master
Servicer and the Special Servicer shall indemnify the Paying Agent, the Trustee,
the Fiscal Agent and the Depositor for any liability or assessment against the
Paying Agent, the Trustee, the Fiscal Agent, the Depositor or any REMIC Pool and
any expenses incurred in connection with such liability or assessment (including
attorney's fees) resulting from any error in any of such tax or information
returns resulting from errors in the information provided by the Master Servicer
or the Special Servicer, as the case may, be or caused by the negligence,
willful misconduct or bad faith of the Master Servicer or the Special Servicer,
as the case may be. The Paying Agent shall indemnify the Master Servicer, the
Trustee, the Fiscal Agent, the Depositor or any REMIC Pool for any expense
incurred by the Master Servicer, the Trustee, the Fiscal Agent, the Depositor
and any REMIC Pool resulting from any error in any of such tax or information
returns resulting from errors in the preparation of such returns caused by the
negligence, willful misconduct or bad faith of the Paying Agent. Each
indemnified party shall immediately notify the indemnifying party or parties of
the existence of a claim for indemnification under this Section 12.1(e), and
provide the indemnifying party or parties, at the expense of such indemnifying
party or parties, an opportunity to contest the tax or assessment or expense
giving rise to such claim, provided that the failure to give such notification
rights shall not affect the indemnification rights in favor of any REMIC Pool
under this Section 12.1(e). Any such indemnification shall survive the
resignation or termination of the Master Servicer, the
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Special Servicer, the Paying Agent, the Trustee, and the Fiscal Agent or the
termination of this Agreement.
(f) The Paying Agent shall perform on behalf of each REMIC all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, REMIC Provisions, or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, the Paying Agent shall provide (i) to the Internal Revenue
Service or other Persons (including, but not limited to, the transferor of a
Residual Certificate, to a Disqualified Organization or to an agent that has
acquired a Residual Certificate on behalf of a Disqualified Organization) such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Disqualified Organization and (ii) to
the Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
(g) The Paying Agent shall forward to the Depositor copies of
quarterly and annual REMIC tax returns and Form 1099 information returns and
such other information within the control of the Paying Agent as the Depositor
may reasonably request in writing. Moreover, the Paying Agent shall forward to
each Certificateholder such forms and furnish such information within its
control as are required by the Code to be furnished to them, shall prepare and
file with the appropriate state authorities as may to the actual knowledge of a
Responsible Officer of the Paying Agent be required by applicable law and shall
prepare and disseminate to Certificateholders Forms 1099 (or otherwise furnish
information within the control of the Paying Agent) to the extent required by
applicable law. The Paying Agent will make available to any Certificateholder
any tax related information required to be made available to Certificateholders
pursuant to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in
Class R-I, Class R-II and Class R-III Certificates, respectively (or of the
greatest percentage of such Class R-I, Class R-II and Class R-III Certificates
if no Holder holds more than 50% thereof), shall be the applicable REMIC's Tax
Matters Person. The duties of the Tax Matters Person for each of the REMIC Pools
are hereby delegated to the Paying Agent and each Residual Certificateholder, by
acceptance of its Residual Certificate, agrees, on behalf of itself and all
successor holders of such Residual Certificate, to such delegation to the Paying
Agent as their agent and attorney in fact. If the Code or applicable regulations
prohibits the Paying Agent from signing any applicable Internal Revenue Service,
court or other administrative documents or from acting as Tax Matters Person (as
an agent or otherwise), the Paying Agent shall take whatever action is necessary
for the signing of such documents and designation of a Tax Matters Person,
including the designation of such Residual Certificateholder. The Paying Agent
shall not be required to expend or risk its own funds or otherwise incur any
other financial liability in the performance of its duties hereunder or in the
exercise of any of its rights or powers (except to the extent of the ordinary
expenses of performing its duties under this Agreement), 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.
(i) The Trustee, the Paying Agent, the Holders of the Residual
Certificates, the Master Servicer and the Special Servicer shall each exercise
reasonable care, to the extent within its control, and with respect to each of
the Trustee, the Paying Agent, the Master Servicer
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and the Special Servicer, within the scope of its express duties, and shall each
act in accordance with this Agreement and the REMIC Provisions in order to
create and maintain the status of each REMIC Pool as a REMIC or, as appropriate,
adopt a plan of complete liquidation.
(j) The Trustee, the Paying Agent, the Master Servicer, the
Special Servicer, the Fiscal Agent and the Holders of Residual Certificates
shall not take any action or fail to take any action or cause any REMIC Pool to
take any action or fail to take any action if any of such persons knows or
could, upon the exercise of reasonable diligence, know, that, under the REMIC
Provisions such action or failure, as the case may be, could (i) endanger the
status of any REMIC Pool as a REMIC or (ii) result in the imposition of a tax
upon any REMIC Pool (including but not limited to the tax on prohibited
transactions as defined in Code Section 860F(a)(2)) unless the Trustee and the
Paying Agent have received an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such a tax. Any action
required under this section which would result in an unusual or unexpected
expense shall be undertaken at the expense of the party seeking the Trustee, the
Paying Agent or the Holders of the Residual Certificates to undertake such
action.
(k) In the event that any tax is imposed on REMIC I, REMIC II
or REMIC III, including, without limitation, "prohibited transactions" taxes as
defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to REMIC I, REMIC II or REMIC III after the Startup Day pursuant
to Section 860G(d) of the Code, and any other tax imposed by the Code or any
applicable provisions of state or local tax laws (other than any tax permitted
to be incurred by the Special Servicer pursuant to Section 9.14(e)), 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 Paying Agent, if such tax arises out of or results from a breach of any of
its obligations under this Agreement; (ii) the Special Servicer, if such tax
arises out of or results from a breach by the Special Servicer of any of its
obligations under this Agreement; (iii) the Master Servicer, if such tax arises
out or results from a breach by the Master Servicer of any of its obligations
under this Agreement; (iv) the Trustee, if such tax arises out of or results
from a breach of the obligations of the Trustee under this Agreement, or (v) the
Trust in all other instances. Any tax permitted to be incurred by the Special
Servicer pursuant to Section 9.14(e) shall be charged to and paid by the Trust
from the net income generated on the related REO Property. Any such amounts
payable by the Trust in respect of taxes shall be paid by the Paying Agent out
of amounts on deposit in the Distribution Account.
(l) The Paying Agent and, to the extent that records are
maintained by the Master Servicer or the Special Servicer in the normal course
of its business, the Master Servicer and the Special Servicer shall, for federal
income tax purposes, maintain books and records with respect to each REMIC Pool
on a calendar year and on an accrual basis. Notwithstanding anything to the
contrary contained herein, except to the extent provided otherwise in the
Mortgage Loans or in the Mortgages, all amounts collected on the Mortgage Loans
shall, for federal income tax purposes, be allocated first to interest due and
payable on the Mortgage Loans (including interest on overdue interest, other
than additional interest at a penalty rate payable following a default). The
books and records must be sufficient concerning the nature and
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amount of each REMIC Pool's investments to show that such REMIC Pool has
complied with the REMIC Provisions.
(m) Neither the Trustee, the Paying Agent, the Master Servicer
nor the Special Servicer shall enter into any arrangement by which any REMIC
Pool will receive a fee or other compensation for services.
(n) In order to enable the Paying Agent to perform its duties
as set forth herein, the Depositor shall provide, or cause to be provided, to
the Paying Agent within ten (10) days after the Closing Date all information or
data that the Paying Agent reasonably determines to be relevant for tax purposes
on the valuations and offering prices of the Certificates, including, without
limitation, the yield, prepayment assumption, issue prices and projected cash
flows of the Senior Certificates, Subordinate Certificates and Residual
Certificates, as applicable, and the projected cash flows of the Mortgage Loans.
Thereafter, the Depositor shall provide to the Paying Agent or its designee,
promptly upon request therefor, any such additional information or data within
the Depositor's possession or knowledge that the Paying Agent may, from time to
time, reasonably request in order to enable the Paying Agent to perform its
duties as set forth herein. The Paying Agent is hereby directed to use any and
all such information or data provided by the Depositor in the preparation of all
federal and state income or franchise tax and information returns and reports
for each REMIC Pool to Certificateholders as required herein. The Depositor
hereby indemnifies the Trustee, the Fiscal Agent, the Paying Agent and each
REMIC Pool for any losses, liabilities, damages, claims, expenses (including
attorneys' fees) or assessments against the Trustee, the Fiscal Agent, the
Paying Agent and each REMIC Pool arising from any errors or miscalculations of
the Paying Agent pursuant to this Section that result from any failure of the
Depositor to provide, or to cause to be provided, accurate information or data
to the Paying Agent (but not resulting from the methodology employed by the
Paying Agent) on a timely basis and such indemnification shall survive the
termination of this Agreement and the termination or resignation of the Paying
Agent, the Trustee and the Fiscal Agent.
The Paying Agent agrees that all such information or data so
obtained by it are to be regarded as confidential information and agrees that it
shall use its best reasonable efforts to retain in confidence, and shall ensure
that its officers, employees and representatives retain in confidence, and shall
not disclose, without the prior written consent of the Depositor, any or all of
such information or data, or make any use whatsoever (other than for the
purposes contemplated by this Agreement) of any such information or data without
the prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
professional advisers of the Paying Agent and its parent, or (ii) in connection
with its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Master
Servicer will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of REMIC
I as "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.
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(p) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of
the Treasury Regulations, the "latest possible maturity date" by which the
Certificate Balance of each Class of Certificates representing a regular
interest in the REMIC would be reduced to zero is the Final Rated Distribution
Date.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither
the Trustee nor the Paying Agent, the Master Servicer nor the Special Servicer
shall permit the sale, disposition or substitution of any of the Mortgage Loans
(except in a disposition pursuant to (i) the foreclosure or default of a
Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the
termination of any REMIC Pool in a "qualified liquidation" as defined in Section
860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II hereof),
nor acquire any assets for the Trust, except as provided in Article II hereof,
nor sell or dispose of any investments in the Certificate Account or
Distribution Account for gain, nor accept any contributions to any REMIC Pool
(other than a cash contribution during the 3-month period beginning on the
Startup Day), unless it has received an Opinion of Counsel (at the expense of
the Person requesting such action) to the effect that such disposition,
acquisition, substitution, or acceptance will not (A) affect adversely the
status of any REMIC Pool as a REMIC or of the REMIC Certificates, other than the
Residual Certificates, as the regular interests therein, (B) affect the
distribution of interest or principal on the Certificates, (C) result in the
encumbrance of the assets transferred or assigned to any REMIC Pool (except
pursuant to the provisions of this Agreement) or (D) cause any REMIC Pool to be
subject to a tax on "prohibited transactions" or "prohibited contributions" or
other tax pursuant to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding
anything to the contrary in this Agreement, neither the Trustee, the Paying
Agent, the Master Servicer nor the Special Servicer shall permit any
modification of any Money Term of a Mortgage Loan or a Specially Serviced
Mortgage Loan unless (i) the Trustee, the Paying Agent and the Master Servicer
have received a Nondisqualification Opinion or a ruling from the Internal
Revenue Service (at the expense of the party making the request that the Master
Servicer or the Special Servicer modify the Mortgage Loan or a Specially
Serviced Mortgage Loan) to the effect that such modification would not be
treated as an exchange pursuant to Section 1001 of the Code (or, if it would be
so treated, would not be treated as a "significant modification" for purposes of
Treas. Reg. Sec. 1.860G-2(B) of the Code) or (ii) such modification meets the
requirements set forth in Sections 8.18 or 9.5.
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS
OF REMIC STATUS. In the event that any REMIC Pool fails to qualify as a REMIC,
loses its status as a REMIC, or incurs state or local taxes, or tax as a result
of a prohibited transaction or prohibited contribution subject to taxation under
the REMIC Provisions due to the negligent performance by either the Trustee or
the Paying Agent of its respective duties and obligations set forth herein, the
Trustee or the Paying Agent, as the case may be, shall be liable to the REMIC
Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Paying Agent or the Trustee, as applicable, shall not be liable for any such
Losses attributable to the action or inaction of the Master Servicer, the
Special Servicer, the Fiscal Agent, the Trustee (with respect to the Paying
Agent), the Paying Agent (with respect to the Trustee), the Depositor or the
Holders of such Residual Certificates nor for any such Losses
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resulting from any actions or failure to act based upon reliance on an Opinion
of Counsel or from misinformation provided by the Master Servicer, the Special
Servicer, the Trustee (with respect to the Paying Agent), the Paying Agent (with
respect to the Trustee), the Fiscal Agent, the Depositor or such Holders of the
Residual Certificates on which the Trustee or the Paying Agent, as the case may
be, has relied. The foregoing shall not be deemed to limit or restrict the
rights and remedies of the Holders of the Residual Certificates now or hereafter
existing at law or in equity. The Trustee or the Paying Agent, as the case may
be, shall be entitled to intervene in any litigation in connection with the
foregoing and to maintain control over its defense.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral
or written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the
parties hereto, without notice to or the consent of any of the Holders, (i) to
cure any ambiguity, (ii) to cause the provisions herein to conform to or be
consistent with or in furtherance of the statements made with respect to the
Certificates, the Trust or this Agreement in the Private Placement Memorandum
and in the Preliminary Prospectus Supplement and Final Prospectus Supplement, or
to correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the status of each REMIC Pool as a REMIC for
the purposes of federal income tax law (or comparable provisions of state income
tax law), (iv) to make any other provisions with respect to matters or questions
arising under or with respect to this Agreement not inconsistent with the
provisions hereof, (v) to modify, add to or eliminate the provisions of Article
III relating to transfers of Residual Certificates or (vi) any other amendment
which does not adversely affect in any material respect the interests of any
Certificateholder (unless such Certificateholder consents). No such amendment
effected pursuant to clause (i), (ii) or (iv) of the preceding sentence shall
(A) adversely affect in any material respect the interests of any Holder not
consenting thereto, and no amendment shall adversely affect the status of any
REMIC Pool as a REMIC without the consent of 100% of the Certificateholders or
(B) adversely affect the status of any REMIC Pool as a REMIC. Prior to entering
into any amendment without the consent of Holders pursuant to this paragraph,
the Trustee may require an Opinion of Counsel and a Nondisqualification Opinion
(in the case of clauses (i), (ii) and (iii), at the expense of the Depositor,
and otherwise at the expense of the party requesting such amendment, except that
if
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the Trustee requests such amendment, such amendment shall be at the expense of
the Depositor, if the Depositor consents), to the effect that such amendment is
permitted under this paragraph. Any such amendment shall be deemed not to
adversely affect in any material economic respect any Holder if the Trustee
receives written confirmation from each Rating Agency that such amendment will
not cause such Rating Agency to reduce, qualify or withdraw the then current
rating assigned to any of the rated Certificates that were currently being rated
by the Rating Agencies (and any Opinion of Counsel requested by the Trustee in
connection with any such amendment may rely expressly on such confirmation as
the basis therefor). The placement of an "original issue discount" legend on, or
any change required to correct any such legend previously placed on, a
Certificate shall not be deemed an amendment to this Agreement.
(b) This Agreement may also be amended from time to time by
the agreement of the parties hereto (without the consent of the
Certificateholders) and with the written confirmation of the Rating Agencies
that such amendment would not cause the ratings on any Class of Certificates to
be qualified, withdrawn or downgraded; provided, however, that such amendment
may not effect any of the items set forth in clauses (i) through (iv) of the
proviso in paragraph (c) of this Section 13.3. The Trustee may request, at its
option, to receive a Nondisqualification Opinion and an Opinion of Counsel that
any amendment pursuant to this Section 13.3(b) is permitted by this Agreement at
the expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by
the parties with the consent of the Holders of not less than 51% of the
Aggregate Certificate Balance of the Certificates then outstanding, 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; provided that no such amendment may (i) reduce in any manner the
amount of, or delay the timing of the distributions required to be made on any
Certificate without the consent of the Holder of such Certificate, (ii) reduce
the aforesaid percentages of Aggregate Certificate Percentage or Certificate
Balance, the Holders of which are required to consent to any such amendment
without the consent of all the Holders of each Class of Certificates affected
thereby, (iii) no such amendment shall eliminate the Master Servicer's, the
Special Servicer's, the Trustee's or the Fiscal Agent's obligation to Advance or
alter the Servicing Standard except as may be necessary or desirable to comply
with the REMIC Provisions or (iv) adversely affect the status of any REMIC Pool
as a REMIC for federal income tax purposes (as evidenced by a
Nondisqualification Opinion) without the consent of 100% of the
Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders); provided that no such amendment may modify Section 8.18 of
this Agreement without the approval of the Rating Agencies. The Trustee may
request, at its option, to receive a Nondisqualification Opinion and an Opinion
of Counsel that any amendment pursuant to this Section 13.3(c) is permitted by
this Agreement at the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment
shall be borne by the Depositor in the case the Trustee is the party requesting
such amendment or if pursuant to clauses (i), (ii) and (iii) of Section 13.3(a).
In all other cases, the costs and expenses shall be borne by the party
requesting the amendment.
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(e) Promptly after the execution of any such amendment, the
Trustee shall furnish written notification of the substance of such amendment to
each Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under
this Section 13.3 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 Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
SECTION 13.5 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (A) in the case of the Depositor, Xxxxxx Xxxxxxx Capital I Inc.,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, with a copy
to: Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel; (B) in the case of the Trustee and the Fiscal Agent
at the Corporate Trust Office at LaSalle National Bank, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities
Trust Services-Xxxxxx Xxxxxxx Capital I Inc., Series 1999-WF1; (C) in the case
of the Master Servicer, Xxxxx Fargo Bank, National Association, 000 Xxxxxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Portfolio
Manager, with a copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, National
Association, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000; (D)
in the case of the Special Servicer, GMAC Commercial Mortgage Corporation, 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Bieber
(with a copy to General Counsel at such address) or (E) in the case of the
Paying Agent at Norwest Bank Minnesota, National Association, 00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Services
(CMBS)-Xxxxxx Xxxxxxx Capital I Inc., Series 1999-WF1; or as to each party such
other address as may hereafter be furnished by such party to the other parties
in writing. Any notice required or permitted to be mailed to a Holder shall be
given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.
SECTION 13.6 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.
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SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor
any delay on the part of a party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy, power
or privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The
headings contained in this Agreement are for convenience of reference only, and
shall not be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement
or in the Certificates, express or implied, shall give to any Person, other than
the parties to this Agreement and their successors hereunder and the Holders of
the Certificates, any benefit or any legal or equitable right, power, remedy or
claim under this Agreement.
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES
(a) The Depositor shall give prompt notice to the Rating
Agencies, Special Servicer and the Operating Adviser of the occurrence of any of
the following events of which it has notice:
(i) any amendment to this Agreement pursuant to
Section 13.3 hereof;
(ii) the Interim Certification and the Final
Certification required pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan
pursuant to Section 2.3(a) hereof;
(iv) any resignation of the Master Servicer, Special
Servicer, the Paying Agent or the Trustee pursuant to this Agreement;
(v) the appointment of any successor to the Master
Servicer, the Fiscal Agent, the Paying Agent, the Trustee or the Special
Servicer pursuant to Section 7.7 or 7.14 hereof;
(vi) waiver of a due-on-sale clause as provided in
Section 8.7;
(vii) waiver of a prohibition on subordinate liens on
the Mortgaged Properties;
(viii) the making of a final payment pursuant to
Section 10.3 hereof; and
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(ix) a Servicing Transfer Event.
(b) All notices to the Rating Agencies shall be in writing and
sent by first class mail, telecopy or overnight courier, as follows:
If to DCR, to:
Duff & Xxxxxx Credit Rating Co.
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Structured Finance -Commercial Real Estate
Monitoring
Fax: (000) 000-0000
If to Moody's, to:
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance
Fax: (000) 000-0000
If to any other Rating Agency, at such address as shall be
provided in writing to the Depositor by such Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the
successor trustee shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events:
(i) the resignation or removal of the Trustee
pursuant to Section 7.6; or
(ii) the appointment of a successor trustee pursuant
to Section 7.7; or
(iii) the appointment of a successor Operating
Adviser pursuant to Section 9.37.
(d) The Master Servicer shall deliver to the Rating Agencies,
the Depositor and the Special Servicer reports prepared pursuant to this
Agreement (including the reports described in Sections 8.12, 8.13 and 8.14 and
the Special Servicer Reports in its possession prepared pursuant to Section
9.32) and any other information as reasonably requested by the Rating Agencies
and the Depositor. The Paying Agent and the Special Servicer shall deliver to
the Rating Agencies and the Depositor any information as reasonably requested by
the Rating Agencies and Depositor, as the case may be.
(e) Any notice or other document required to be delivered or
mailed by the Depositor, Master Servicer, Paying Agent or Trustee shall be given
by such parties, respectively, on a best efforts basis and only as a matter of
courtesy and accommodation to the Rating Agencies, unless otherwise specifically
required herein, and such parties, respectively, shall have no liability for
failure to deliver any such notice or document to the Rating Agencies.
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SECTION 13.11 COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
SECTION 13.12 INTENTION OF PARTIES It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans and related rights
and property to the Trustee, for the benefit of the Certificateholders, by the
Depositor as provided in Section 2.1 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans or any related property is held to be
the property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans or any related
property, then this Agreement shall be deemed to be a security agreement; and
the conveyance provided for in Section 2.1 shall be deemed to be a grant by the
Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the Depositor's right, title, and interest, whether
now owned or hereafter acquired, in and to:
(i) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the property
described in clauses (1)-(4) below: (1) the Mortgage Loans, including
the related Mortgage Notes, Mortgages, security agreements, and title,
hazard and other insurance policies identified on the Mortgage Loan
Schedule, including all Qualified Substitute Mortgage Loans, all
distributions with respect thereto payable on and after the Cut-Off
Date, and the Mortgage Files; (2) the Distribution Account, all REO
Accounts, and the Certificate Account, including all property therein
and all income from the investment of funds therein (including any
accrued discount realized on liquidation of any investment purchased at
a discount); (3) the REMIC I Regular Interests and the REMIC II Regular
Interests; and (4) the Mortgage Loan Purchase Agreements;
(ii) All accounts, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property, and other rights arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable with
respect to, or claims against other Persons with respect to, all or any
part of the collateral described in clause (A) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
All cash and non-cash proceeds of the collateral described in
clauses (i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the
Mortgages and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a purchaser for
purposes of perfecting the security interest pursuant to the Uniform Commercial
199
209
Code (including, without limitation, Sections 9-115 and 9-305 thereof) as in
force in the relevant jurisdiction.
Notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for, the Trustee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Depositor and, at the Depositor's direction, the Master
Servicer and the Trustee, shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, 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 the Agreement. The Master Servicer shall file, at the
expense of the Trust as an Additional Trust Expense, 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 the Trustee's
security interest in such property, including without limitation (i)
continuation statements, and (ii) such other statements as may be occasioned by
any transfer of any interest of the Master Servicer or the Depositor in such
property. 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.
SECTION 13.13 RECORDATION OF AGREEMENT 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, if any,
shall be effected by the Master Servicer at the expense of the Trust as an
Additional Trust Expense, but only upon direction of the Depositor accompanied
by an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust.
SECTION 13.14 RATING AGENCY MONITORING FEES. The Master
Servicer shall promptly pay, when due, out of its own funds, all reasonable
monitoring fees of the Rating Agencies relating to the rating of the
Certificates.
200
210
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar, the
Authenticating Agent and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By:
-------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Special Servicer
By:
-------------------------------
Name:
Title:
LASALLE NATIONAL BANK, as Trustee
By:
-------------------------------------
Name:
Title:
ABN AMRO BANK N.V., as Fiscal Agent
By:
-------------------------------------
Name:
Title:
201
211
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Paying Agent,
Certificate Registrar and Authenticating
Agent
By:
-------------------------------------
Name:
Title:
000
000
XXXXX XX XXX XXXX
) ss.:
COUNTY OF NEW YORK
On this ___th day of _____________, 1999, before me, a notary
public in and for said State, personally appeared Xxxxxxx X. Xxxxxxx, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as Vice President on behalf of Xxxxxx
Xxxxxxx Capital I Inc., and acknowledged to me that such corporation executed
the within instrument pursuant to its by-laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF SAN FRANCISCO )
On this ___th day of _____________, 1999, before me, a notary
public in and for said State, personally appeared Xxxxxxx X. XxXxxxx, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as Vice President of Xxxxx Fargo Bank,
National Association, and acknowledged to me that such corporation executed the
within instrument pursuant to its by-laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
214
STATE OF )
) ss.:
COUNTY OF __________ )
On the ______ day of February, 1999, before me, a notary
public in and for said State, personally appeared ___________________ known to
me to be a of GMAC Commercial Mortgage Corporation, one of the entities that
executed the within instrument, 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.
-----------------------------------
Notary Public
[Notarial Seal]
000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of February, 1999, before me, a notary public
in and for said State, personally appeared __________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
who executed the within instrument as Vice President on behalf of LaSalle
National Bank, and acknowledged to me that such nationally chartered bank
executed the within instrument pursuant to its by-laws or a resolution of its
Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of February, 1999, before me, a notary public
in and for said State, personally appeared __________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
who executed the within instrument as Vice President on behalf of ABN AMRO Bank,
N.V., and acknowledged to me that such nationally chartered bank executed the
within instrument pursuant to its by-laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of February, 1999, before me, a notary public
in and for said State, personally appeared __________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
who executed the within instrument as Vice President on behalf of Norwest Bank
Minnesota, National Association and acknowledged to me that such nationally
chartered bank executed the within instrument pursuant to its by-laws or a
resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
218
XXXXXX XXXXXXX CAPITAL I INC.,
AS DEPOSITOR,
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS MASTER SERVICER,
AND
GMAC COMMERCIAL MORTGAGE CORPORATION,
AS SPECIAL SERVICER,
AND
LASALLE NATIONAL BANK, AS TRUSTEE
AND
ABN AMRO BANK N.V.,
AS FISCAL AGENT
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
AS PAYING AGENT
-------------------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF FEBRUARY 1, 1999
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
1999-WF1
219
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
220
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS A-1 CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1,
1999 MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
CLOSING DATE: FEBRUARY __, 1999
TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: MARCH 15, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1
CERTIFICATES AS OF THE CLOSING DATE: PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
$ ASSOCIATION
[CUSIP NO. _________________][CINS NO.
________________]
NO. _____
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class A-1 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and
A-1-2
221
representing an interest in the Class of Certificates specified on the face
hereof equal to the quotient expressed as a percentage obtained by dividing the
Certificate Balance of this Certificate specified on the face hereof by the
aggregate initial Certificate Balance of the Class A-1 Certificates. The
Certificates are designated as the Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-WF1 and are issued in 19 Classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-1-3
222
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-1-4
223
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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer, the Paying Agent and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying
Agent, the Certificate Registrar nor any such agents shall be affected by notice
to the contrary.
The obligations and responsibilities of the Trustee created
hereby (other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-1-5
224
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-------------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
A-1-6
225
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------- -------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed
by a commercial bank or trust
company or by a member firm of
the New York Stock Exchange or
another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-1-7
226
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-1-8
227
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-1-9
228
EXHIBIT A-2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-2 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR, OR ITS AGENT 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
HEREON 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.
229
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS A-2 CERTIFICATE AS
OF THE CLOSING DATE: $________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1,
1999 MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CLOSING DATE: FEBRUARY __, 1999 CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15, 1999 TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-2 CERTIFICATES FISCAL AGENT: ABN AMRO BANK N.V.
AS OF THE CLOSING DATE: $_______________
PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
[CUSIP NO. ][CINS NO. ]
NO. ___
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class A-2 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
A-2-2
230
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class A-2 Certificates. The Certificates are
designated as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1 and are issued in 19 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-2-3
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The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-2-4
232
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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer, the Paying Agent and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying
Agent, the Certificate Registrar nor any such agents shall be affected by notice
to the contrary.
The obligations and responsibilities of the Trustee created
hereby (other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-2-5
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-------------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
A-2-6
234
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------ -------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed
by a commercial bank or trust
company or by a member firm of
the New York Stock Exchange or
another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-2-7
235
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-2-8
236
EXHIBIT A-3
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED TO ANY
PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
237
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
A-3-2
238
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS
OF THE CLOSING DATE: $___________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1,
1999 MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CLOSING DATE: FEBRUARY __, 1999 CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15, 1999 TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE CLASS B CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $_______________
PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
[CUSIP NO. __________][CINS NO. ___________]
NO. ___
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class B Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
A-3-3
239
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class B Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-3-4
240
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-3-5
241
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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer, the Paying Agent and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying
Agent, the Certificate Registrar nor any such agents shall be affected by notice
to the contrary.
The obligations and responsibilities of the Trustee created
hereby (other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-3-6
242
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-------------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
A-3-7
243
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------ -------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed
by a commercial bank or trust
company or by a member firm of
the New York Stock Exchange or
another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-3-8
244
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-3-9
245
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-3-10
246
EXHIBIT A-4
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
247
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
A-4-2
248
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1
INITIAL PASS-THROUGH RATE:_____% CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF FEBRUARY 1, 1999 MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
CLOSING DATE: FEBRUARY __, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
CLASS C CERTIFICATES AS OF THE ASSOCIATION
CLOSING DATE: $_________________
[CUSIP NO._________________][CINS NO._________________]
NO. ____
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class C Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
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249
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class C Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-4-4
250
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-4-5
251
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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-4-6
252
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ___________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: ___________________________________
AUTHORIZED SIGNATORY
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253
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
[ ] PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
____________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
A-4-8
254
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-4-9
255
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-4-10
256
EXHIBIT A-5
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
257
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
A-5-2
258
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1
INITIAL PASS-THROUGH RATE:_____% CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS OF
THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF FEBRUARY 1, 1999 MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
CLOSING DATE: FEBRUARY __, 1999
TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: MARCH 15, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS D CERTIFICATES AS OF THE CLOSING PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
DATE: $_________________ ASSOCIATION
[CUSIP NO._________________][CINS NO._________________]
NO. _____
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class D Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
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259
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class D Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-5-4
260
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-5-5
261
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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-5-6
262
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: __________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: __________________________________
AUTHORIZED SIGNATORY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
[ ] PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
____________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
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264
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
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265
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-5-10
266
EXHIBIT A-6
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
267
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
A-6-2
268
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1
INITIAL PASS-THROUGH RATE:_____% CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS OF
THE CLOSING DATE: $________________
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF FEBRUARY 1, 1999 MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
CLOSING DATE: FEBRUARY __, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
THE CLASS E CERTIFICATES AS OF ASSOCIATION
THE CLOSING DATE: $________________
[CUSIP NO.________________][CINS NO.________________]
NO. _____
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class E Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
A-6-3
269
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class E Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-6-4
270
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-6-5
271
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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-6-6
272
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
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273
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
[ ]PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
____________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
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274
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-6-9
275
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-6-10
276
EXHIBIT A-7
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS F CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
277
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
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278
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS
OF THE CLOSING DATE: $________________
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF FEBRUARY 1, 1999 MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
CLOSING DATE: FEBRUARY __, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
THE CLASS F CERTIFICATES AS ASSOCIATION
OF THE CLOSING DATE: $________________
[CUSIP NO.________________][CINS NO.________________]
NO. _____
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class F Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
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279
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class A-1 Certificates. The Certificates are
designated as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1 and are issued in 19 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-7-4
280
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-7-5
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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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer, the Paying Agent and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying
Agent, the Certificate Registrar nor any such agents shall be affected by notice
to the contrary.
The obligations and responsibilities of the Trustee created
hereby (other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ___________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
--------------------------------------- ----------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
--------------------------- --------------------------------------------------------------
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of this Certificate in every
particular without alteration or enlargement or any change
whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
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285
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-7-10
286
EXHIBIT A-8
[FORM OF CLASS G CERTIFICATE]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
287
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS FEBRUARY __, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _______% PER
ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
A-8-2
288
OFFERING OF THE CERTIFICATES AND (B) FEBRUARY __, 1999, THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO BELOW.]
A-8-3
289
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1,
1999 MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CLOSING DATE: FEBRUARY __, 1999 CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15, 1999 TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE CLASS G CERTIFICATES FISCAL AGENT: ABN AMRO BANK N.V.
AS OF THE CLOSING DATE: $_____________
PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
[CUSIP NO. __________][CINS NO. ________]
NO. ___
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class G Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
A-8-4
290
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class G Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 1999-WF1 and are issued in 19 Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
A-8-5
291
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
A-8-6
292
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer, the Paying Agent and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying
Agent, the Certificate Registrar nor any such agents shall be affected by notice
to the contrary.
The obligations and responsibilities of the Trustee created
hereby (other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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293
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
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294
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
--------------------------------------- ------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
----------------------------------- --------------------------------------------------------------
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of this Certificate in every
particular without alteration or enlargement or any change
whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
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295
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-8-10
296
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-8-11
297
EXHIBIT A-9
[FORM OF CLASS H CERTIFICATE]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
298
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS FEBRUARY __, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_______ OF OID
PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS ________%
PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
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OFFERING OF THE CERTIFICATES AND (B) FEBRUARY __, 1999, THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO BELOW.]
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XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS OF
THE CLOSING DATE: $__________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1,
1999 MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
CLOSING DATE: FEBRUARY __, 1999
TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: MARCH 15, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $__________ PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
[CUSIP NO. __________][CINS NO. _________]
NO. ___
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class H Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
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quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class H Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
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The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
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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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer, the Paying Agent and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying
Agent, the Certificate Registrar nor any such agents shall be affected by notice
to the contrary.
The obligations and responsibilities of the Trustee created
hereby (other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate
Registrar
By: ________________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
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305
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act..............
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
--------------------------------------- -----------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------------------ --------------------------------------------------------------
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of this Certificate in every
particular without alteration or enlargement or any change
whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
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306
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
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307
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-9-11
308
EXHIBIT A-10
[FORM OF CLASS J CERTIFICATE]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
309
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS FEBRUARY __, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF
OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _______%
PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
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310
OFFERING OF THE CERTIFICATES AND (B) FEBRUARY __, 1999, THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO BELOW.]
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311
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS J CERTIFICATE AS OF
THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1,
1999 MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
CLOSING DATE: FEBRUARY __, 1999
TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: MARCH 15, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $______________ PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
[CUSIP NO. _______][CINS NO. _________]
NO. ___
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class J Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
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312
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class J Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
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The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
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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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer, the Paying Agent and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying
Agent, the Certificate Registrar nor any such agents shall be affected by notice
to the contrary.
The obligations and responsibilities of the Trustee created
hereby (other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_________________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:_________________________________________
AUTHORIZED SIGNATORY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act................
(State)
Additional abbreviations may also be used though not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
--------------------------------------- ------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------------- --------------------------------------------------------------
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of this Certificate in every
particular without alteration or enlargement or any change
whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
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318
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-10-11
319
EXHIBIT A-11
[FORM OF CLASS K CERTIFICATE]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
320
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS FEBRUARY __, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF
OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS
_________% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
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321
OFFERING OF THE CERTIFICATES AND (B) FEBRUARY __, 1999, THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO BELOW.]
A-11-3
322
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS K
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $___________
AS OF FEBRUARY 1, 1999
MASTER SERVICER: XXXXX FARGO BANK,
CUT-OFF DATE: FEBRUARY 1, 1999 NATIONAL ASSOCIATION
CLOSING DATE: FEBRUARY __, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15, 1999
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS K CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $___________
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
[CUSIP NO.________][CINS NO._______]
NO. ___
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class K Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
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323
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class K Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-11-5
324
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-11-6
325
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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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326
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:______________________________________
AUTHORIZED SIGNATORY
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327
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT_____________Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act_______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ___________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
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328
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-11-10
329
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-11-11
330
EXHIBIT A-12
[FORM OF CLASS L CERTIFICATE]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
331
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS FEBRUARY __, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF
OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS
_________% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
A-12-2
332
OFFERING OF THE CERTIFICATES AND (B) FEBRUARY __, 1999, THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO BELOW.]
A-12-3
333
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS L
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $___________
AS OF FEBRUARY 1, 1999
MASTER SERVICER: XXXXX FARGO BANK,
CUT-OFF DATE: FEBRUARY 1, 1999 NATIONAL ASSOCIATION
CLOSING DATE: FEBRUARY __, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15, 1999
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS L CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $___________
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
[CUSIP NO.________][CINS NO._______]
NO. ___
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class L Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
A-12-4
334
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class L Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-12-5
335
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-12-6
336
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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-12-7
337
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:______________________________________
AUTHORIZED SIGNATORY
A-12-8
338
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT_____________Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act_______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-12-9
339
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-12-10
340
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-12-11
341
EXHIBIT A-13
[FORM OF CLASS M CERTIFICATE]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
342
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS FEBRUARY __, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF
OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS
_________% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
A-13-2
343
OFFERING OF THE CERTIFICATES AND (B) FEBRUARY __, 1999, THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO BELOW.]
A-13-3
344
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS M
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $___________
AS OF FEBRUARY 1, 1999
MASTER SERVICER: XXXXX FARGO BANK,
CUT-OFF DATE: FEBRUARY 1, 1999 NATIONAL ASSOCIATION
CLOSING DATE: FEBRUARY __, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15, 1999
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS M CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $___________
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
[CUSIP NO.________][CINS NO._______]
NO. ___
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class M Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
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quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class M Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
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The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
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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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:______________________________________
AUTHORIZED SIGNATORY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
[ ] PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
____________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-13-11
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EXHIBIT A-14
[FORM OF CLASS N CERTIFICATE]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
353
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS FEBRUARY __, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF
OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS
_________% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
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OFFERING OF THE CERTIFICATES AND (B) FEBRUARY __, 1999, THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO BELOW.]
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XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS N
CERTIFICATE AS OF THE CLOSING DATE: $___________
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF FEBRUARY 1, 1999 MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
CLOSING DATE: FEBRUARY __, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
CLASS N CERTIFICATES AS OF ASSOCIATION
THE CLOSING DATE: $___________
[CUSIP NO.___________][CINS NO.___________]
NO. _____
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class N Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
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356
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class N Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
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The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
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358
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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ___________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: ___________________________________
AUTHORIZED SIGNATORY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
[ ] PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
____________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
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EXHIBIT A-15
[FORM OF CLASS O CERTIFICATE]
THIS CLASS O CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
364
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS O CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS FEBRUARY __, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF
OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS
_________% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
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OFFERING OF THE CERTIFICATES AND (B) FEBRUARY __, 1999, THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO BELOW.]
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XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS O CERTIFICATE AS OF
THE CLOSING DATE: $___________
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF FEBRUARY 1, 1999 MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: FEBRUARY 1, 1999
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
CLOSING DATE: FEBRUARY __, 1999
TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: MARCH 15, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF
THE CLASS O CERTIFICATES PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
AS OF THE CLOSING DATE: $___________ ASSOCIATION
[CUSIP NO. __________][CINS NO. ___________]
NO. _____
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class O Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
A-15-4
367
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class O Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-15-5
368
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
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369
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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
[ ] PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
____________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
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EXHIBIT A-16
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED TO ANY
PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE.
375
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN 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), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES WITHOUT THE
UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED
STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED
STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-I CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-16-2
376
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1
PERCENTAGE INTEREST OF THIS CLASS MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
R-I CERTIFICATE: ___%
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF FEBRUARY 1, 1999 TRUSTEE: LASALLE NATIONAL BANK
CUT-OFF DATE: FEBRUARY 1, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
CLOSING DATE: FEBRUARY __, 1999 PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: MARCH 15, 1999
CUSIP NO. __________
NO. ___
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class R-I Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the Percentage
Interest in the Class R-I Certificates specified on the face hereof. The
Certificates are designated as the Xxxxxx Xxxxxxx Capital I Inc. Commercial
Mortgage Pass-Through Certificates, Series 1999-WF1 and are issued in 19 Classes
as specifically set forth in
A-16-3
377
the Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such
A-16-4
378
Certificateholder. All distributions under the Pooling and Servicing Agreement
to Certificateholders will be made by wire transfer in immediately available
funds to the account specified by the Certificateholder, at a bank or other
entity having appropriate facilities therefor, if such Certificateholder will
have provided the Paying Agent with wiring instructions no more than five
business days after the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
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The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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380
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
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381
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
[ ] PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
____________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
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382
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-16-9
383
EXHIBIT A-17
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED TO ANY
PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE.
384
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN 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), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES WITHOUT THE
UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED
STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED
STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-II CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-17-2
385
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1
PERCENTAGE INTEREST OF THIS MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLASS R-II CERTIFICATE: ___%
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF FEBRUARY 1, 1999 TRUSTEE: LASALLE NATIONAL BANK
CUT-OFF DATE: FEBRUARY 1, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
CLOSING DATE: FEBRUARY __, 1999 PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: MARCH 15, 1999
CUSIP NO. __________
NO. 1
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class R-II Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 and are issued in 19 Classes as specifically set
forth in
A-17-3
386
the Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby after payment to the holders of all classes of
REMIC II Regular Interests of all amounts set forth in the Pooling and Servicing
Agreement. Distributions on this Certificate will be made out of the Available
Distribution Amount, to the extent and subject to the limitations set forth in
the Pooling and Servicing Agreement, on the 15th day of each month or, if such
15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such
A-17-4
387
Certificateholder. All distributions under the Pooling and Servicing Agreement
to Certificateholders will be made by wire transfer in immediately available
funds to the account specified by the Certificateholder, at a bank or other
entity having appropriate facilities therefor, if such Certificateholder will
have provided the Paying Agent with wiring instructions no more than five
business days after the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
A-17-5
388
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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389
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-17-7
390
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
[ ] PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
____________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-17-9
392
EXHIBIT A-18
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED TO ANY
PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE.
393
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND
BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET
FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY
STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY
OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF
ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD
OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN 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), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES WITHOUT THE
UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED
STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED
STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-III CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-18-2
394
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1
PERCENTAGE INTEREST OF THIS CLASS R-III CERTIFICATE: ___% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1,
1999 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
CUT-OFF DATE: FEBRUARY 1, 1999 TRUSTEE: LASALLE NATIONAL BANK
CLOSING DATE: FEBRUARY __, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: MARCH 15, 1999 PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
CUSIP NO. __________
NO. 1
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class R-III Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, Master Servicer and the Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the Percentage
Interest in the Class R-III Certificates specified on the face hereof. The
Certificates are designated as the Xxxxxx Xxxxxxx Capital I Inc. Commercial
Mortgage Pass-Through Certificates, Series 1999-WF1 and are issued in 19 Classes
as specifically set forth in
A-18-3
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the Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive
only certain amounts set forth in the Pooling and Servicing Agreement, including
a distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby after payment to the holders of all classes of
REMIC III Regular Interests of all amounts set forth in the Pooling and
Servicing Agreement. Distributions on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 15th day of each month or,
if such 15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such
A-18-4
396
Certificateholder. All distributions under the Pooling and Servicing Agreement
to Certificateholders will be made by wire transfer in immediately available
funds to the account specified by the Certificateholder, at a bank or other
entity having appropriate facilities therefor, if such Certificateholder will
have provided the Paying Agent with wiring instructions no more than five
business days after the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer, the Paying Agent and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying
Agent, the Certificate Registrar nor any such agents shall be affected by notice
to the contrary.
A-18-5
397
The obligations and responsibilities of the Trustee created
hereby (other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-18-6
398
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-------------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
A-18-7
399
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------ ------------------------------
NOTICE: The signature to this
assignment must correspond with
the name as written upon the
face of this Certificate in
every particular without
alteration or enlargement or
any change whatever.
------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-18-8
400
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________ account number ______________________ or, if
mailed by check, to ___________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
A-18-9
401
EXHIBIT A-19
[FORM OF CLASS X CERTIFICATE]
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE,
SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF
402
THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS FEBRUARY __, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_____ OF OID
PER $100,000 OF INITIAL NOTIONAL AMOUNT, THE YIELD TO MATURITY IS _____% PER
ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $_____ PER $100,000 OF INITIAL NOTIONAL AMOUNT, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NO PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) FEBRUARY __, 1999, THIS CERTIFICATE MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
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403
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1
INITIAL PASS-THROUGH RATE: ____% AGGREGATE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES
AS OF THE CLOSING DATE: $____________
INITIAL NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE:
$__________________ MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1,
1999 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
CUT-OFF DATE: FEBRUARY 1, 1999 TRUSTEE: LASALLE NATIONAL BANK
CLOSING DATE: FEBRUARY __, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: MARCH 15, 1999 PAYING AGENT: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
[CUSIP NO. __________][CINS NO. __________]
NO. ___
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class X Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor," which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
A-19-3
404
quotient expressed as a percentage obtained by dividing the Notional Amount of
this Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 1999-WF1 and are issued in 19 Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out
of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
A-19-4
405
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no more than five business days after the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Class X Certificates will be issued in denominations of $50,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-19-5
406
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.
Notwithstanding the foregoing, 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.
The Depositor, the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer, the Paying Agent and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the Paying
Agent, the Certificate Registrar nor any such agents shall be affected by notice
to the contrary.
The obligations and responsibilities of the Trustee created
hereby (other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust 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 parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-19-6
407
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-------------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
A-19-7
408
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------ ------------------------------
NOTICE: The signature to this
assignment must correspond with
the name as written upon the
face of this Certificate in
every particular without
alteration or enlargement or
any change whatever.
------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-19-8
409
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-19-9
410
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
February __, 1999
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
GMAC Commercial Mortgage Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1999-WF1
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the
Pooling and Servicing Agreement, the undersigned hereby certifies that, with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject
to the exceptions noted in the schedule of exceptions attached hereto, that: (a)
all documents specified in clause (i) of the definition of "Mortgage File" are
in its possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and each Mortgage Note has been
endorsed as provided in clause (i) of the definition of "Mortgage File" of the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any such
documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor
has granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular
Interests.
B-1-1
411
Capitalized words and phrases used herein and not otherwise
defined herein shall have the respective meanings assigned to them in the
Pooling and Servicing Agreement. This Certificate is subject in all respects to
the terms of said Pooling and Servicing Agreement.
LASALLE NATIONAL BANK, as Trustee
By:
-------------------------------------
Name:
Title:
B-1-2
412
SCHEDULE OF EXCEPTIONS
B-1-3
413
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
__________, 1999
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1999-WF1
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the
Pooling and Servicing Agreement, the undersigned hereby certifies that, with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject
to the exceptions noted in the schedule of exceptions attached hereto, that: (a)
all documents required to be included in the Mortgage File pursuant to clauses
(i), (ii), (iv), (v) and (viii) of the definition of "Mortgage File," and any
documents required to be included in the Mortgage File pursuant to all other
clauses of the definition of "Mortgage File," to the extent the Trustee has
received written notification by the Depositor or the Master Servicer that such
documents are required by the related Mortgage Loan, are in its possession, (b)
such documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (c) based on its examination and only as to the
Mortgage Note and the Mortgage, the loan number, the street address of the
Mortgaged Property and the name of the borrower set forth in the Mortgage Loan
Schedule accurately reflects the information contained in the documents in the
Mortgage File, and (d) each Mortgage Note has been endorsed and each Assignment
of Mortgage has been delivered as provided in the definition of "Mortgage File"
contained in the Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File or any of
the Trustee Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
The Trustee acknowledges receipt of notice that the Depositor
has granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right,
B-2-1
414
title and interest in and to the Mortgage Loans, the REMIC I Regular Interests,
and the REMIC II Regular Interests.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
This Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE NATIONAL BANK, as Trustee
By:
-------------------------------------
Name:
Title:
B-2-2
415
SCHEDULE OF EXCEPTIONS
B-2-3
416
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle National Bank, as Trustee
Corporate Trust Xxxxxx
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-WF1
Date:__________
In connection with the administration of the Mortgage Loans
held by you as Trustee under the Pooling and Servicing Agreement dated as of
February 1, 1999 by and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx
Fargo Bank, National Association, as Master Servicer, GMAC Commercial Mortgage
Corporation, as Special Servicer, LaSalle National Bank, as Trustee, ABN AMRO
Bank N.V., as Fiscal Agent and Norwest Bank Minnesota, National Association, as
Paying Agent (the "Pooling and Servicing Agreement"), the undersigned hereby
requests a release of the Trustee Mortgage File held by you as Trustee with
respect to the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies
that all amounts received in connection with the
Mortgage Loan have been or will be, following the
[Master] [Special] Servicer's release of the Trustee
Mortgage File, credited to the Certificate Account or
the Distribution Account pursuant to the Pooling and
Servicing Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies
that the Purchase Price has been credited to the
Distribution Account pursuant to the Pooling and
Servicing Agreement.)
C-1
417
_____ 3. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies
that a Qualifying Substitute Mortgage Loan has been
assigned and delivered to you along with the related
Trustee Mortgage File pursuant to the Pooling and
Servicing Agreement.)
_____ 4. The Mortgage Loan is being foreclosed.
_____ 5. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage
File will be held by the undersigned in accordance with the provisions of the
Pooling and Servicing Agreement and will be returned to you, except if the
Mortgage Loan has been paid in full, repurchased or substituted for by a
Qualifying Substitute Mortgage Loan (in which case the Trustee Mortgage File
will be retained by us permanently), when no longer required by us for such
purpose).
Capitalized terms used herein shall have the meanings ascribed
to them in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By:
-------------------------------------
Name:
Title:
C-2
418
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1, Class __ (the
"Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of [Class ___ Certificates having an initial principal balance as
of February __, 1999 (the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred Certificates"). The
Transferred Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of February 1, 1999,
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, National Association, as master servicer, GMAC Commercial Mortgage
Corporation, as special servicer, LaSalle National Bank, as trustee, ABN AMRO
Bank N.V., as fiscal agent and Norwest Bank Minnesota, National Association, as
paying agent. All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Certificate or any other
similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate,
any interest in any Transferred Certificate or any other similar
security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or
(e) taken any other action, which (in the case of any of the acts
described in clauses (a) through (e) hereof) would constitute a
distribution of any Transferred Certificate under the Securities Act of
1933, as amended (the "Securities Act"), or would render the
disposition of any Transferred Certificate a violation of Section 5 of
the Securities Act or any state securities laws, or
D-1-1
419
would require registration or qualification of any Transferred
Certificate pursuant to the Securities Act or any state securities
laws.
Very truly yours,
----------------------------------------
(Transferor)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
D-1-2
420
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of Class ______ Certificates [having an initial Certificate
Principal Balance as of February __, 1999 (the "Closing Date") of [$__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of February 1,
1999 (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, National Association, as
master servicer, GMAC Commercial Mortgage Corporation, as special servicer,
LaSalle National Bank, as trustee, ABN AMRO Bank N.V., as fiscal agent and
Norwest Bank Minnesota, National Association, as paying agent. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the sale to it of the Transferred Certificates is being
made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of a
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a Qualified Institutional Buyer that
purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Transferred Certificates and distributions thereon,
(b) the nature, performance and servicing of the Mortgage Loans, (c)
the Pooling and Servicing Agreement, and (d) any
D-2A-1
421
credit enhancement mechanism associated with the Transferred
Certificates, that it has requested.
Very truly yours,
----------------------------------------
(Transferee)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
D-2A-2
422
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the mortgage pass-through certificate
being transferred (the "Transferred Certificates") as described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
D-2A-3
423
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
-----------------------------------
D-2A-4
424
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _______________________ (the "Transferor") to
_______________________________ (the "Transferee") of Class ___ Certificates
[having an initial Certificate Principal Balance as of February __ 1999 (the
"Closing Date") of $__________][evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates"). The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, dated as of February 1, 1999 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, National Association, as master servicer, GMAC Commercial Mortgage
Corporation, as special servicer, LaSalle National Bank, as trustee, ABN AMRO
Bank N.V., as fiscal agent and Norwest Bank Minnesota, National Association, as
paying agent. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is acquiring the Transferred Certificates
for its own account for investment and not with a view to or for sale or
transfer in connection with any distribution thereof, in whole or in part, in
any manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificates belong has not been and will
not be registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant any
applicable state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration and qualification and the Certificate
Registrar has received either: (A) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
D-1 to the Pooling and Servicing Agreement and a certificate from such
Certificateholder's prospective transferee substantially in the form attached
either as Exhibit D-2A or as Exhibit D-2B to the Pooling and Servicing
Agreement; or (C) an
D-2B-1
425
opinion of counsel satisfactory to the Certificate Registrar with respect to the
availability of such exemption from registration under the Securities Act,
together with copies of the written certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate except in compliance with the
provisions of Section 3.3 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that each Transferred Certificate will
bear the following legends:
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 OR ANY INTEREST HEREIN
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN
A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE
OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROCEDURES DESCRIBED IN SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Certificate, any interest in any Transferred Certificate or any
other similar security by means of general advertising or in any other manner,
or (e) taken any other action with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security, which (in
the case of any of
D-2B-2
426
the acts described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act, would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities law or would require registration
or qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (d) the nature, performance and servicing of the Mortgage
Loans, and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
----------------------------------------
(Transferee)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
D-2B-3
427
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1, Class __ (the
"Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _____________________ (the "Transferor") to ______________________
(the "Transferee") of a Certificate (the "Transferred Certificate") having an
initial principal balance as of February __, 1999 (the "Closing Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of February 1, 1999,
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, National Association, as master servicer, GMAC Commercial Mortgage
Corporation, as special servicer, LaSalle National Bank, as trustee, ABN AMRO
Bank N.V., as fiscal agent and Norwest Bank Minnesota, National Association, as
paying agent. All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, and for the benefit of the Depositor,
the Certificate Registrar and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for
its own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee or the Certificate Registrar is obligated so to register or qualify
the Certificates and (c) no interest in the Certificates may be sold or
transferred unless (i) such Certificates are registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) such interest sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate Owner
desiring to effect such transfer has received either (A) a certification from
such Certificate Owner's prospective transferee (substantially in the form
attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel satisfactory to the
Certificate Registrar with respect to the availability of such exemption,
together with copies of the certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
D-3A-1
428
3. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred Certificate
except in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that the
Transferred Certificate will bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE 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 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
- AND -
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security to
any person in any manner, (b) solicited any offer to buy or accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) made any general solicitation by means of general advertising or in any
other manner, or (e) taken any other action, that (in the case of any of the
acts described in clauses (a) through (e) above) would constitute a distribution
of any Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement, and (d) all related matters,
that it has requested.
D-3A-2
429
6. The Transferee is an institutional "accredited investor" as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of an investment in the Certificates; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment.
Very truly yours,
----------------------------------------
(Transferee)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
D-3A-3
430
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1, Class __ (the
"Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _____________ ________ (the "Transferor") to ______________________
(the "Transferee") of a Certificate (the "Transferred Certificate") having an
initial principal balance as of February __, 1999 (the "Closing Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of February 1, 1999,
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, National Association, as master servicer, GMAC Commercial Mortgage
Corporation, as special servicer, LaSalle National Bank, as trustee, ABN AMRO
Bank N.V., as fiscal agent and Norwest Bank Minnesota, National Association, as
paying agent. All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, and for the benefit of the Depositor,
the Certificate Registrar and the Trustee, that:
1. The Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A ("Rule 144A") under the
Securities Act of 1933, as amended (the "Securities Act"), and has
completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to
it is being made in reliance on Rule 144A. The Transferee is acquiring
the Transferred Certificate for its own account or for the account of a
qualified institutional buyer, and understands that such Certificate or
any interest therein may be resold, pledged or transferred only (i) to
a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificate belongs have not been
and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to
register or qualify the Certificates and (c) no interest in the
Certificates may be sold or transferred unless (i) such Certificates
are registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) such
interest sold or
D-3B-1
431
transferred in transactions which are exempt from such registration and
qualification and the Certificate Owner desiring to effect such
transfer has received either (A) a certification from such Certificate
Owner's prospective transferee (substantially in the form attached to
the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel satisfactory to
the Certificate Registrar with respect to the availability of such
exemption, together with copies of the certification(s) from the
transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred Certificate
except in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that the
Transferred Certificate will bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE 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 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
- AND -
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
D-3B-2
432
4. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and Servicing
Agreement, and (d) any credit enhancement mechanism associated with the
Transferred Certificate, that it has requested.
Very truly yours,
(Transferee)
By:_________________________
Name:_______________________
Title:______________________
D-3B-3
433
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor"), and for the benefit of the Depositor, the
Trustee and the Certificate Registrar, with respect to the commercial mortgage
pass-through certificate being transferred (the "Transferred Certificate") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation
(other than a bank, savings and loan association or
similar institution), Massachusetts or similar
business trust, partnership, or any organization
described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a
banking institution organized under the laws of any
State, U.S. territory or the District of Columbia,
the business of which is substantially confined to
banking and is supervised by the State or territorial
banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a date not more than 16 months preceding the date of
sale of the Certificate in the case of a U.S. bank,
and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and
loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a
D-3B-4
434
date not more than 16 months preceding the date of
sale of the Certificate in the case of a U.S. savings
and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and
loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act
of 1934, as amended.
___ Insurance Company. The Transferee is an insurance
company whose primary and predominant business
activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the
insurance commissioner or a similar official or
agency of a State, U.S. territory or the District of
Columbia.
___ State or Local Plan. The Transferee is a plan
established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit
of its employees.
___ ERISA Plan. The Transferee is an employee benefit
plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act
of 1940, as amended.
___ Other. (Please supply a brief description of the
entity and a cross-reference to the paragraph and
subparagraph under subsection (a)(1) of Rule 144A
pursuant to which it qualifies. Note that registered
investment companies should complete Annex 2 rather
than this Annex 1.)
____________________________________________________
____________________________________________________
____________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial
D-3B-5
435
statements on the basis of their market value, and no current information with
respect to the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate amount,
the Transferee may have included securities owned by subsidiaries of the
Transferee, but only if such subsidiaries are consolidated with the Transferee
in its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Transferee's direction. However, such securities were not included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in reliance on
Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
-------------------------------------
Print Name of Transferee
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________
D-3B-6
436
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor"), and for the benefit of the Depositor, the
Certificate Registrar and the Trustee, with respect to the commercial mortgage
pass-through certificate being transferred (the "Transferred Certificate") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
the Transferee is part of a Family of Investment Companies (as defined below),
is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a
discretionary basis $___________________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Transferee is part of a Family of Investment
Companies which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
D-3B-7
437
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificate will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
________________________________________
Print Name of Transferee or Adviser
By:_____________________________________
Name:___________________________________
Title:__________________________________
IF AN ADVISER:
________________________________________
Print Name of Transferee
Date:___________________________________
D-3B-8
438
EXHIBIT E-1A
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says
that:
1. He/She is the ____________________ of ____________________
(the prospective transferee (the "Transferee") of Xxxxxx Xxxxxxx Capital I Inc.,
Mortgage Pass-Through Certificates, Series 1999-WF1, Class [R-I] [R-II] [R-III],
evidencing a ____% Percentage Interest in such Class (the "Residual
Certificates")), a ________________ duly organized and validly existing under
the laws of ____________________, on behalf of which he/she makes this
affidavit. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement
pursuant to which the Residual Certificates were issued (the "Pooling and
Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will
be, a "Permitted Transferee" and will endeavor to remain a "Permitted
Transferee" for so long as it holds the Residual Certificates, and (ii) is
acquiring the Residual Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Permitted Transferee" is any
Person other than a "disqualified organization" or a possession of the United
States. (For this purpose, a "disqualified organization" means the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.
3. The Transferee is aware (i) of the tax that would be
imposed on transfers of the Residual Certificates to "disqualified
organizations" under the Code that applies to all transfers of the Residual
Certificates; (ii) that such tax would be on the transferor or, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such Person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such Person does not have actual
knowledge that the affidavit is false; and (iv) that the Residual Certificates
may be a "noneconomic residual interest" within the meaning of Treasury
regulation Section 1.860E-1(c) and that the transferor of a "noneconomic
residual interest" will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
is to enable the transferor to impede the assessment or collection of tax.
E-1A-1
439
4. The Transferee is aware of the tax imposed on a
"pass-through entity" holding the Residual Certificates if at any time during
the taxable year of the pass-through entity a non-Permitted Transferee is the
record holder of an interest in such entity. (For this purpose, a "pass-through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will
not register any transfer of the Residual Certificates by the Transferee unless
the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number
is_________________.
8. The Transferee has reviewed the provisions of Section
3.3(e) of the Pooling and Servicing Agreement, a description of which provisions
is set forth in the Residual Certificates (in particular, clause (ii)(F) of
Section 3.3(e) which authorizes the Paying Agent or the Trustee to deliver
payments on the Residual Certificate to a Person other than the Transferee and
clause (ii)(G) of Section 3.3(e) which authorizes the Trustee to negotiate a
mandatory sale of the Residual Certificates, in either case, in the event that
the Transferee holds such Residual Certificates in violation of Section 3.3(e));
and the Transferee expressly agrees to be bound by and to comply with such
provisions.
9. No purpose of the Transferee relating to its purchase or
any sale of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of
the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Certificates as they become due, fully understanding that
it may incur tax liabilities in excess of any cash flows generated by the
Residual Certificates.
11. The Transferee will, in connection with any transfer that
it makes of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United
States, a corporation, a partnership or other entity created or organized in, or
under the laws of, the United States or
E-1A-2
440
any political subdivision thereof, or an estate or trust whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States.
E-1A-3
441
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to the authority of its Board of
Directors, by its ____________________ and its corporate seal to be hereunto
attached this day of ___________, ____.
[NAME OF TRANSFEREE]
By:______________________________
[Name of Officer]
[Title of Officer]
X-0X-0
000
XXX-XXXXXXX ACKNOWLEDGEMENT
)
)
)
On ___________________ before me, ___________________________________
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared ___________________________________________________________
Name(s) of Document Signer(s)
--------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
--------------------------------------------
Signature of Notary
(Affix seal in the above blank space)
E-1A-5
443
EXHIBIT E-1B
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 19__
Norwest Bank Minnesota, National Association,
as Certificate Registrar
0xx & Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1 (the
"Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of [Class R-I] [Class R-II] [Class R-III] Certificates evidencing
a ____% Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of February 1, 1999 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx
Fargo Bank, National Association, as Master Servicer, GMAC Commercial Mortgage
Corporation, as Special Servicer, LaSalle National Bank, as Trustee, ABN AMRO
Bank N.V., as Fiscal Agent and Norwest Bank Minnesota, National Association, as
Paying Agent. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement. The Transferor does not know or believe that
any representation contained therein is false.
cc: LaSalle National Bank, as Trustee
Corporate Trust Xxxxxx
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
E-1B-1
444
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
---------------------------------
(Transferor)
By:______________________________
Name:____________________________
Title:___________________________
E-1B-2
445
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1, CLASS (THE "CERTIFICATES")
TO: Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
or
CEDEL, S.A.
This is to certify that as of the date hereof, and except as set
forth below, the above-captioned Certificates held by you or on your behalf for
our account are beneficially owned by (a) non-U.S person(s) or (b) U.S.
person(s) who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Certificates held by you or on your behalf for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of
such beneficial interest in the above Certificates in respect of which we are
not able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
F-1
446
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, 199__
By: ________________________________
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
F-2
447
EXHIBIT G
RESERVED
G-1
448
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 199__
TO: The Depository Trust Company
CEDEL BANK, S. A. or
Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Xxxxx Fargo Bank, National Association, as Master Servicer
LaSalle National Bank, as Trustee
Norwest Bank Minnesota, National Association, as Certificate Registrar
Attn: Corporate Trust Services (CMBS)
This is to notify you as to the transfer of the beneficial interest
in $_______________ of Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1, Class __(the "Certificates").
The undersigned is the owner of a beneficial interest in the Class
__ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and
requests that on [INSERT DATE], (i) [Euroclear] [CEDEL] [DTC] debit account
#__________, with respect to $__________ principal denomination of the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and (ii)
[DTC] [Euroclear] [CEDEL] credit the beneficial interest of the below-named
purchaser, account #__________, in the Class __ [Rule 144A-IAI Global
Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being made
in accordance with an exemption from the provisions of Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the
H-1
449
1933 Act][an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and in accordance
with any applicable securities laws of any state of the United States and, if
the purchaser has purchased the Certificates for one or more accounts for which
it is acting as fiduciary or agent, each such account is a qualified
institutional buyer or an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act] and that the
purchaser is acquiring beneficial interests in the applicable Certificate(1) for
its own account or for one or more institutional accounts for which it is acting
as fiduciary or agent in a minimum amount equivalent to not less than U.S.
$100,000 and integral multiples of U.S. $1 in excess thereof for each such
account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:______________________________________
[Name], [Chief Financial
or other Executive Officer]
---------
(1) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON ANY
TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL FORM.]
H-2
450
EXHIBIT I
FORM OF EUROCLEAR OR CEDEL CERTIFICATE
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF1, CLASS __ (THE "CERTIFICATES")
TO: Norwest Bank Minnesota, National Association, as Certificate Registrar
Attn: Corporate Trust Services (CMBS)
LaSalle National Bank, as Trustee
Attn: Asset-Backed Securities
Trust Services Group
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of February 1, 1999 (the "Pooling and Servicing
Agreement") among you both, GMAC Commercial Mortgage Corporation, ABN AMRO Bank
N.V. and Xxxxx Fargo Bank, National Association, U.S. $__________ principal
amount of the above-captioned Certificates held by us or on our behalf are
beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased
the Certificates in transactions that did not require registration under the
United States Securities Act of 1933, as amended (the "Securities Act"). As used
in this paragraph, the term "U.S. person" has the meaning given to it by
Regulation S under the Securities Act.
We further certify that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class
__ Regulation S Temporary Global Certificate shall be exchanged for an interest
in the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
I-1
451
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated:
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office,
as operator of the Euroclear
System]
or
[CEDEL BANK, S.A.]
By:______________________________________
I-2
452
EXHIBIT J
FORM OF CERTIFICATE ACCOUNT WIRE TRANSFER AGREEMENT
This Certificate Account Wire Transfer Agreement dated as of February 1, 1999
(this "Agreement") is by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
master servicer (the "Master Servicer") and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as paying agent (the "Paying Agent"). The Master Servicer and the
Paying Agent are parties to a Pooling and Servicing Agreement dated as of
February 1, 1999 by and among Xxxxxx Xxxxxxx Capital I, Inc., the Master
Servicer, GMAC Commercial Mortgage Corporation (the "Special Servicer"), LaSalle
National Bank (the "Trustee"), ABN AMRO Bank N.V. (the "Fiscal Agent") and the
Paying Agent (the "Pooling and Servicing Agreement"). Any capitalized terms not
otherwise defined herein shall have the meaning set forth in the Pooling and
Servicing Agreement. The terms of the Pooling and Servicing Agreement require
that under the circumstances described therein the Master Servicer will send
fund transfers by wire from, the Certificate Account maintained by the Master
Servicer for the Trust.
The Certificate Account is identified as follows:
Certificate Account Name: Xxxxx Fargo Bank, National Association, as Master
Servicer for Norwest Bank Minnesota, National
Association, as Paying Agent for the Holders of Xxxxxx
Xxxxxxx Capital I Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1
The Master Servicer and the Paying Agent agree as follows:
1. By the Paying Agent's execution of this Agreement, the Paying Agent
certifies that the below listed wiring instructions are correct and
complete. If no instructions are shown, it means the Master Servicer
currently does not have wire instructions on file.
WIRE INSTRUCTIONS
Norwest Bank Minnesota, National Association
Minneapolis, MN
ABA #091 000 019
SAS Clearing Account #0000000000
For Further Credit: Xxxxxx Xxxxxxx Capital I Inc., Series 1999-WF1
Account #
DTC Fast Participant number: 2980
J-1
453
2. In order to modify or replace the above instructions, the Paying Agent
agrees to complete a new Agreement. The Master Servicer will implement the
modified or new wire instructions upon the later of receipt or the
effective date shown below.
3. The effective date of the instructions set forth in this Agreement is
February 25, 1999.
4. The following security procedures will be used to attempt to determine if
the transfers requested in this Agreement are not properly authorized, or
in the event the Master Servicer receives any cancellation or modification
of the instructions set forth in this Agreement:
(a) The Master Servicer will compare the signature(s) of the authorized
representatives of the Paying Agent who sign this Agreement with
the signatures set forth on Exhibit A hereto of the individuals
authorized to execute this Agreement and to cancel or modify the
wire instructions set forth herein ("Transfer Verifiers"); and
(b) The Master Servicer will call back one of the Transfer Verifiers
named on Exhibit A to this Agreement and attempt to obtain
verification of the transfers, cancellation or modification
requested under this Agreement from someone identifying themselves
as a Transfer Verifier on Exhibit A. As long as the wire
instructions set forth in this Agreement are not changed, the
Master Servicer will attempt to verify the authorization only of
the first transfer pursuant to such instructions, and not
subsequent transfers to the same account.
This Agreement or any cancellation or modification of the wire
instructions will not be accepted by the Master Servicer or any transfer
made out of the Certificate Account if the signatures under which the
Paying Agent signs this Agreement or any such cancellation or modification
does not, in our opinion, match one of the sample signatures at the end of
this Agreement, or if the requested transfers, cancellation or
modification are not verified by someone identifying themselves as a
Transfer Verifier named below. The Master Servicer is under no obligation
to confirm in any other way the identity of any purported Transfer
Verifier or the person signing this Agreement for the Paying Agent. If the
Master Servicer takes any actions in an attempt to find errors in the
Paying Agent's transfer request, or if the Master Servicer takes any
action in addition to the security procedures in an attempt to determine
if the transfer were authorized by the Paying Agent, such actions will not
become part of the security procedures, and the Master Servicer will not
be liable for not taking these actions or for not correctly performing
these actions.
5. These wire instructions will remain in full force and effect until such
time that the Master Servicer either receives a new Agreement or receives
the Paying Agent's originally signed copy of this Agreement with the
cancellation request found at the end of this agreement signed and dated
by persons having authority to sign on behalf of the Paying Agent or it is
determined by the Master Servicer that the wire instructions set forth
above are incorrect.
J-2
454
6. The Paying Agent and the Master Servicer shall have the limitations of
liability and rights to indemnification as provided in the Pooling and
Servicing Agreement.
7. In accordance with the above referenced Pooling and Servicing Agreement,
the Paying Agent is to be provided with remittance reports detailing the
funds wired to the Paying Agent. The Paying Agent agrees to notify the
Master Servicer promptly in writing as soon as any error is found. The
Paying Agent agrees to provide reasonable documentation to allow the
Master Servicer to verify the error. The Paying Agent further agrees to
return promptly any monies wired in error as soon as the Paying Agent
discovers an error or the Paying Agent is notified, in writing, by the
Master Servicer. The Master Servicer agrees to provide reasonable
documentation to allow the Paying Agent to verify any overpayment or any
payment made in error regardless of the amount.
8. This Agreement and the Pooling and Servicing Agreement form the entire
agreement between the Paying Agent and the Master Servicer concerning the
transfer of funds by wire from the Certificate Account to the Distribution
Account. If any provision(s) of this Agreement or the Pooling and
Servicing Agreement is/are not enforceable, the other provisions will
remain fully enforceable. This Wire Agreement is intended for the mutual
benefit of the Paying Agent and the Master Servicer.
9. The Master Servicer may, at its sole and independent discretion,
independently, in writing, by fax, and/or telephonically verify the
correctness of the above wiring instructions or have its outside
independent auditors of Xxxxx Fargo Bank N.A. perform such verification.
The Paying Agent agrees to fully cooperate with said verification.
10. The Paying Agent agrees that the Master Servicer can fully rely on this
agreement and the Pooling and Servicing Agreement in wiring funds to the
Paying Agent. The Master Servicer's only warranties and representations
concerning the above wire instructions are contained in this Agreement.
Any independent verifications are done solely by the Master Servicer or at
the Master Servicer direction. The Paying Agent confirms and agrees that
the Master Servicer is not obligated to perform any verification and if
the Master Servicer does perform verifications, said verifications will
not become a part of this Agreement.
11. In the event of any conflict between the terms of this Agreement and the
Pooling and Servicing Agreement, the Pooling and Servicing Agreement shall
control.
J-3
455
IN WITNESS THEREOF, the Paying Agent and the Master Servicer have caused
this Agreement to be duly executed as of the date first above written.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Paying Agent
___________________________
By:
Its:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
___________________________
By: Xxxxxxx X. XxXxxxx
Its: Vice President
CANCELLATION OF CERTIFICATE ACCOUNT WIRE TRANSFER AGREEMENT
The undersigned hereby notifies the Master Servicer that the Certificate Account
Wire Transfer Agreement contained above is canceled in its entirety as of
______________.
__________________________
By: _____________________
Its: ____________________
J-4
456
EXHIBIT A
List of Transfer Verifiers
J-5
457
EXHIBIT K
RESERVED
K-1
458
EXHIBIT L
FORM OF INSPECTION REPORT
L-1
459
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
M-1
460
EXHIBIT N
FORM OF ANNUAL REPORT
N-1
461
EXHIBIT O
FORM OF SPECIAL SERVICER MONTHLY REPORT
O-1
462
EXHIBIT P
RESERVED
P-1
463
EXHIBIT Q
FORM OF MORTGAGE LOAN INFORMATION
Substantially Similar to the Information
Repeated in Appendix II to the
Prospectus Supplement
Q-1
464
EXHIBIT R-1
REPRESENTATIONS AND WARRANTIES OF XXXXX FARGO
IN RESPECT OF XXXXX FARGO LOANS
R-1-1
465
EXHIBIT R-2
REPRESENTATIONS AND WARRANTIES OF MSMC
IN RESPECT OF MSMC LOANS
R-2-1
466
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR MASTER SERVICER
RECORDING REQUESTED BY:
XXXXX FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
XXXXX FARGO BANK, N.A.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:Commercial Mortgage Pass-
Through Series 1999-WF1
Space above this line for Recorder's use
_______________________________________________________________________________
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE NATIONAL BANK, as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 ("Trustee"), under that certain Pooling and
Servicing Agreement dated as of February 1, 1999 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as Master Servicer under the Pooling and Servicing
Agreement ("Xxxxx Fargo Bank"), as its true and lawful attorney-in-fact for it
and in its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable Xxxxx Fargo Bank to service and administer the Mortgage Loans (as defined
in the Pooling and Servicing Agreement) in connection with the performance by
Xxxxx Fargo Bank of its duties as Master Servicer under the Pooling and
Servicing Agreement, giving and granting unto Xxxxx Fargo Bank full power and
authority to do and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or confirming all
that Xxxxx Fargo Bank shall lawfully do or cause to be done by virtue hereof.
S-1-1
467
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of February, 1999.
LASALLE NATIONAL BANK, as trustee for Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1
By: ______________________________________
Name:_____________________________________
Title: ___________________________________
X-0-0
000
XXX-XXXXXXX ACKNOWLEDGEMENT
)
)
)
On __________________ before me, ___________________________
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared __________________________________________________
Name(s) of Document Signer(s)
_______________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
_________________________________
Signature of Notary
(Affix seal in the above blank space)
469
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
GMAC COMMERCIAL MORTGAGE CORPORATION
AND WHEN RECORDED MAIL TO:
GMAC COMMERCIAL MORTGAGE CORPORATION
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: ___________________
Space above this line for Recorder's use
_______________________________________________________________________________
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE NATIONAL BANK, as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF1 ("Trustee"), under that certain Pooling and
Servicing Agreement dated as of February 1, 1999 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint GMAC COMMERCIAL
MORTGAGE CORPORATION, as Special Servicer under the Pooling and Servicing
Agreement ("GMAC"), as its true and lawful attorney-in-fact for it and in its
name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable GMAC to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by GMAC of
its duties as Special Servicer under the Pooling and Servicing Agreement, giving
and granting unto GMAC full power and authority to do and perform any and every
act necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that GMAC shall lawfully do or cause to
be done by virtue hereof.
S-2-1
470
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of February, 1999.
LASALLE NATIONAL BANK, as trustee for Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF1
By: ______________________________________
Name:_____________________________________
Title: ___________________________________
X-0-0
000
XXX-XXXXXXX ACKNOWLEDGEMENT
)
)
)
On __________________ before me, ___________________________
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared __________________________________________________
Name(s) of Document Signer(s)
_______________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
_________________________________
Signature of Notary
(Affix seal in the above blank space)
472
EXHIBIT T
PROCEDURES FOR CALCULATING DEBT SERVICE COVERAGE RATIO
"Debt Service Coverage Ratios" generally means the ratio of "Underwritable
Cash Flow" estimated to be produced by the related Mortgaged Property to the
annualized amount of debt service payable under that Mortgage Loan.
"Underwritable Cash Flow" in each case is an estimate of stabilized cash flow
available for debt service. In general, it is the estimated stabilized revenue
derived from the use and operation of a Mortgaged Property (consisting primarily
of rental income) less the sum of (a) estimate stabilized operating expenses
(such as utilities, administrative expenses, repairs and maintenance, management
fees and advertising), (b) fixed expenses (such as insurance, real estate taxes
and, if applicable, ground lease payments) and (c) capital expenditures and
reserves for capital expenditures, including tenant improvement costs and
leasing commissions. Underwritable Cash Flow generally does not reflect interest
expenses and non-cash items such as depreciation and amortization. In
determining Underwritable Cash Flow for a Mortgaged Property, the Master
Servicer may rely on rent rolls and other generally unaudited financial
information provided by the respective borrowers and may estimate cash flow
taking into account historical financial statements, material changes in the
operating position of the Mortgaged Property, and estimated capital
expenditures, leasing commission and tenant improvement reserves. The Master
Servicer may make certain changes to operating statements and operating
information obtained from the respective borrowers.
T-1
473
SCHEDULE I
MSMC LOAN SCHEDULE
S-I-I
474
SCHEDULE II
XXXXX FARGO LOAN SCHEDULE
S-II-I
475
EXHIBITS
EXHIBIT A-1 [FORM OF CLASS A-1 CERTIFICATE]...............................A-1-1
EXHIBIT A-2 [FORM OF CLASS A-2 CERTIFICATE]...............................A-2-1
EXHIBIT A-3 [FORM OF CLASS B CERTIFICATE].................................A-3-1
EXHIBIT A-4 [FORM OF CLASS C CERTIFICATE].................................A-4-1
EXHIBIT A-5 [FORM OF CLASS D CERTIFICATE].................................A-5-1
EXHIBIT A-6 [FORM OF CLASS E CERTIFICATE].................................A-6-1
EXHIBIT A-7 [FORM OF CLASS F CERTIFICATE].................................A-7-1
EXHIBIT A-8 [FORM OF CLASS G CERTIFICATE].................................A-8-1
EXHIBIT A-9 [FORM OF CLASS H CERTIFICATE].................................A-9-1
EXHIBIT A-10 [FORM OF CLASS J CERTIFICATE]...............................A-10-1
EXHIBIT A-11 [FORM OF CLASS K CERTIFICATE]...............................A-11-1
EXHIBIT A-12 [FORM OF CLASS L CERTIFICATE]...............................A-12-1
EXHIBIT A-13 [FORM OF CLASS M CERTIFICATE]...............................A-13-1
EXHIBIT A-14 [FORM OF CLASS N CERTIFICATE]...............................A-14-1
EXHIBIT A-15 [FORM OF CLASS O CERTIFICATE]...............................A-15-1
EXHIBIT A-16 [FORM OF CLASS R-I CERTIFICATE].............................A-16-1
EXHIBIT A-17 [FORM OF CLASS R-II CERTIFICATE]............................A-17-1
EXHIBIT A-18 [FORM OF CLASS R-III CERTIFICATE]...........................A-18-1
EXHIBIT A-19 [FORM OF CLASS X CERTIFICATE]...............................A-19-1
EXHIBIT B-1 FORM OF INITIAL CERTIFICATION OF TRUSTEE.....................B-1-1
EXHIBIT B-2 FORM OF FINAL CERTIFICATION OF TRUSTEE.......................B-2-1
EXHIBIT C FORM OF REQUEST FOR RELEASE....................................C-1
EXHIBIT D-1 FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES...............................D-1-1
EXHIBIT D-2A FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
DEFINITIVE PRIVATELY OFFERED CERTIFICATES..................D-2A-1
EXHIBIT D-2B FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
DEFINITIVE PRIVATELY OFFERED CERTIFICATES..................D-2B-1
EXHIBIT D-3A FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF INTERESTS
IN BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES................D-3A-1
EXHIBIT D-3B FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF INTERESTS
IN BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES................D-3B-1
-i-
476
EXHIBITS (Cont'd.)
EXHIBIT E-1A FORM OF TRANSFER AFFIDAVIT AND AGREEMENT FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES.................................E-1A-1
EXHIBIT E-1B FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF REMIC
RESIDUAL CERTIFICATES.......................................E-1B-1
EXHIBIT F FORM OF REGULATION S CERTIFICATE...............................F-1
EXHIBIT G RESERVED.......................................................G-1
EXHIBIT H FORM OF EXCHANGE CERTIFICATION.................................H-1
EXHIBIT I FORM OF EUROCLEAR OR CEDEL CERTIFICATE.........................I-1
EXHIBIT J FORM OF CERTIFICATE ACCOUNT WIRE TRANSFER AGREEMENT............J-1
EXHIBIT K FORM OF PROOF OF CERTIFICATEHOLDER STATUS LETTER...............K-1
EXHIBIT L FORM OF INSPECTION REPORT......................................L-1
EXHIBIT M FORM OF MONTHLY CERTIFICATEHOLDER REPORT.......................M-1
EXHIBIT N FORM OF ANNUAL REPORT..........................................N-1
EXHIBIT O FORM OF SPECIALLY SERVICED ASSET REPORT........................O-1
EXHIBIT P FORM OF SPECIAL SERVICER MONTHLY REPORT........................P-1
EXHIBIT Q FORM OF MORTGAGE LOAN INFORMATION..............................Q-1
EXHIBIT R-1 REPRESENTATIONS AND WARRANTIES OF XXXXX FARGO IN RESPECT OF
XXXXX FARGO LOANS............................................R-1-1
EXHIBIT R-2 REPRESENTATIONS AND WARRANTIES OF MSMC IN RESPECT OF MSMC
LOANS........................................................R-2-1
EXHIBIT S-1 FORM OF POWER OF ATTORNEY FOR MASTER SERVICER................S-1-1
EXHIBIT S-2 FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER...............S-2-1
EXHIBIT T PROCEDURES FOR CALCULATING DEBT SERVICE COVERAGE RATIO........T-1
SCHEDULE I MSMC LOAN SCHEDULE...........................................S-I-1
SCHEDULE II XXXXX FARGO LOAN SCHEDULE...................................S-II-1
-ii-
