XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.,
as Depositor,
CAPMARK SERVICES, L.P.,
as Master Servicer,
PPM FINANCE, INC.,
as Special Servicer,
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of January 1, 2001
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COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-PPM
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions.....................................................
Section 1.2 Calculations Respecting Mortgage Loans..........................
Section 1.3 Calculations Respecting Accrued Interest........................
Section 1.4 Interpretation..................................................
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans....................................
Section 2.2 Acceptance by Trustee...........................................
Section 2.3 Seller's Repurchase of Mortgage Loans for Document
Defects and Breaches of Representations and Warranties.........
Section 2.4 Representations and Warranties..................................
Section 2.5 Conveyance of Interests.........................................
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates................................................
Section 3.2 Registration....................................................
Section 3.3 Transfer and Exchange of Certificates...........................
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates...............
Section 3.5 Persons Deemed Owners...........................................
Section 3.6 Access to List of Certificateholders' Names and Addresses.......
Section 3.7 Definitive Certificates and Book-Entry Certificates.............
Section 3.8 Notices to Clearing Agency......................................
Section 3.9 Definitive Certificates.........................................
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer.................................
Section 4.2 Servicing Advances..............................................
Section 4.3 Advances by the Trustee.........................................
Section 4.4 Evidence of Nonrecoverability...................................
Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan................................
Section 4.6 Reimbursement of Advances and Advance Interest..................
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections.....................................................
Section 5.2 Application of Funds in the Certificate Account.................
Section 5.3 Distribution Account and Reserve Account........................
Section 5.4 Trustee Reports.................................................
Section 5.5 Trustee Tax Reports.............................................
Section 5.6 Actual/360 Account..............................................
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally.........................................
Section 6.2 REMIC I.........................................................
Section 6.3 REMIC II........................................................
Section 6.4 Reserved........................................................
Section 6.5 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability............................
Section 6.6 Net Aggregate Prepayment Interest Shortfalls....................
Section 6.7 Adjustment of Servicing Fees....................................
Section 6.8 Appraisal Reductions............................................
Section 6.9 Compliance with Withholding Requirements........................
Section 6.10 Prepayment Premiums.............................................
ARTICLE VII
THE TRUSTEE
Section 7.1 Duties of the Trustee...........................................
Section 7.2 Certain Matters Affecting the Trustee...........................
Section 7.3 The Trustee Not Liable for Certificates or Interests or
Mortgage Loans.................................................
Section 7.4 The Trustee May Own Certificates................................
Section 7.5 Eligibility Requirements for the Trustee........................
Section 7.6 Resignation and Removal of the Trustee..........................
Section 7.7 Successor Trustee...............................................
Section 7.8 Merger or Consolidation of Trustee..............................
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian......................................................
Section 7.10 Authenticating Agents...........................................
Section 7.11 Indemnification of Trustee......................................
Section 7.12 Fees and Expenses of Trustee....................................
Section 7.13 Collection of Moneys............................................
Section 7.14 Trustee to Act; Appointment of Successor........................
Section 7.15 Notification to Holders.........................................
Section 7.16 Representations and Warranties of the Trustee...................
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee......................................
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties............................
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicer..............................
Section 8.3 Master Servicer's General Power and Duties......................
Section 8.4 Sub-Servicing...................................................
Section 8.5 Master Servicer May Own Certificates............................
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes
and Other......................................................
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause..........................
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files.........
Section 8.9 Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee for the Benefit of
the Certificateholders.........................................
Section 8.10 Servicing Compensation..........................................
Section 8.11 Master Servicer Reports; Account Statements.....................
Section 8.12 Annual Statement as to Compliance...............................
Section 8.13 Annual Independent Public Accountants' Servicing Report.........
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties...........................................
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer................................................
Section 8.16 Rule 144A Information...........................................
Section 8.17 Inspections.....................................................
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents.......................................................
Section 8.19 Specially Serviced Mortgage Loans...............................
Section 8.20 Representations, Warranties and Covenants of the Master
Servicer.......................................................
Section 8.21 Merger or Consolidation.........................................
Section 8.22 Resignation of Master Servicer..................................
Section 8.23 Assignment or Delegation of Duties by Master Servicer...........
Section 8.24 Limitation on Liability of the Master Servicer and Others.......
Section 8.25 Indemnification; Third-Party Claims.............................
Section 8.26 Exchange Act Reporting..........................................
Section 8.27 Compliance with REMIC Provisions................................
Section 8.28 Termination.....................................................
Section 8.29 Procedure Upon Termination......................................
Section 8.30 Administration of the Non-30/360 Loans and the Actual/360
Account........................................................
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY
SERVICED MORTGAGE LOANS BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer......................................
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy
of Special Servicer............................................
Section 9.3 Sub-Servicers...................................................
Section 9.4 Special Servicer General Powers and Duties......................
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced Mortgage
Loans; Due-On-Encumbrance Clauses..............................
Section 9.6 Release of Mortgage Files.......................................
Section 9.7 Documents, Records and Funds in Possession of Special
Servicer To Be Held for the Trustee............................
Section 9.8 Representations, Warranties and Covenants of the Special
Servicer.......................................................
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies...................................
Section 9.10 Presentment of Claims and Collection of Proceeds................
Section 9.11 Compensation to the Special Servicer............................
Section 9.12 Realization Upon Defaulted Mortgage Loans.......................
Section 9.13 Foreclosure.....................................................
Section 9.14 Operation of REO Property.......................................
Section 9.15 Sale of REO Property............................................
Section 9.16 Realization on Collateral Security..............................
Section 9.17 Sale of Defaulted Mortgage Loans................................
Section 9.18 Annual Officer's Certificate as to Compliance...................
Section 9.19 Annual Independent Accountants' Servicing Report................
Section 9.20 Merger or Consolidation.........................................
Section 9.21 Resignation of Special Servicer.................................
Section 9.22 Assignment or Delegation of Duties by Special Servicer..........
Section 9.23 Limitation on Liability of the Special Servicer and
Others.........................................................
Section 9.24 Indemnification; Third-Party Claims.............................
Section 9.25 [Reserved]......................................................
Section 9.26 Special Servicer May Own Certificates...........................
Section 9.27 Tax Reporting...................................................
Section 9.28 Application of Funds Received...................................
Section 9.29 Compliance with REMIC Provisions................................
Section 9.30 Termination.....................................................
Section 9.31 Procedure Upon Termination......................................
Section 9.32 Certain Special Servicer Reports................................
Section 9.33 Special Servicer to Cooperate with the Master Servicer..........
Section 9.34 Certain REMIC Limitations on Modification of Specially
Serviced Mortgage Loans........................................
Section 9.35 [Reserved]......................................................
Section 9.36 Sale of Defaulted Mortgage Loans and REO Properties.............
Section 9.37 Operating Adviser; Elections....................................
Section 9.38 Limitation on Liability of Operating Adviser....................
Section 9.39 Duties of Operating Adviser.....................................
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans.............................................
Section 10.2 Procedure Upon Termination of Trust.............................
Section 10.3 Additional Trust Termination Requirements.......................
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders.................................
Section 11.2 Access to List of Holders.......................................
Section 11.3 Acts of Holders of Certificates.................................
ARTICLE XII
REMIC ADMINISTRATION
Section 12.1 REMIC Administration and Grantor Trust Administration...........
Section 12.2 Prohibited Transactions and Activities..........................
Section 12.3 Modifications of Mortgage Loans.................................
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC
Status.........................................................
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Binding Nature of Agreement.....................................
Section 13.2 Entire Agreement................................................
Section 13.3 Amendment.......................................................
Section 13.4 GOVERNING LAW...................................................
Section 13.5 Notices.........................................................
Section 13.6 Severability of Provisions......................................
Section 13.7 Indulgences; No Waivers.........................................
Section 13.8 Headings Not to Affect Interpretation...........................
Section 13.9 Benefits of Agreement...........................................
Section 13.10 Special Notices to the Rating Agencies..........................
Section 13.11 Counterparts....................................................
Section 13.12 Intention of Parties............................................
Section 13.13 Recordation of Agreement........................................
Section 13.14 Rating Agency Monitoring Fees...................................
Section 13.15 [Reserved]......................................................
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class B Certificate
EXHIBIT A-5 Form of Class C Certificate
EXHIBIT A-6 Form of Class D Certificate
EXHIBIT A-7 Form of Class E Certificate
EXHIBIT A-8 Form of Class F Certificate
EXHIBIT A-9 Form of Class G Certificate
EXHIBIT A-10 Form of Class H Certificate
EXHIBIT A-11 Form of Class J Certificate
EXHIBIT A-12 Form of Class K Certificate
EXHIBIT A-13 Form of Class L Certificate
EXHIBIT A-14 Form of Class M Certificate
EXHIBIT A-15 Form of Class N Certificate
EXHIBIT A-16 Form of Class O Certificate
EXHIBIT A-17 Form of Class R-I Certificate
EXHIBIT A-18 Form of Class R-II Certificate
EXHIBIT A-19 Form of Class X Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee
EXHIBIT B-2 Form of Final Certification of Trustee
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers of Definitive
Privately Offered Certificates
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates
EXHIBIT E-1 Form of Transfer Affidavit and Agreement for Transfers of
REMIC Residual Certificates
EXHIBIT E-2 Form of Transferor Certificate for Transfers of REMIC Residual
Certificates
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G-1 Investor Certificate
EXHIBIT G-2 Prospective Investor Certificate
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of EUROCLEAR or Clearstream Certificate
EXHIBIT J Reserved
EXHIBIT K Form of Mortgage Loan Purchase Agreement
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholder Report
EXHIBIT N Form of Operating Statement Analysis Report
EXHIBIT O Form of Special Servicer Monthly Report
EXHIBIT P Effective Amortization Schedules of Non-30/360 Loans
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney for Master Servicer
EXHIBIT S-2 Form of Power of Attorney for Special Servicer
EXHIBIT T Procedures for Calculating Debt Service Coverage Ratio
EXHIBIT U Form of Assignment and Assumption Submission to Special
Servicer
EXHIBIT V Reserved
EXHIBIT W CMSA Reports
SCHEDULE I Loan Schedule
THIS POOLING AND SERVICING AGREEMENT is dated as of January 1, 2001
(this "Agreement") among XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC. as depositor
(the "Depositor"), CAPMARK SERVICES, L.P., as master servicer (the "Master
Servicer"), PPM FINANCE, INC., as special servicer (the "Special Servicer"), and
XXXXX FARGO BANK MINNESOTA, N.A., as trustee of the Trust (the "Trustee").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from Xxxxxxx National Life Insurance Company, as seller ("Xxxxxxx National"),
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 and
(ii) the REMIC II Certificates as consideration for its transfer of the REMIC I
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 and (B) the REMIC II
Certificates representing in the aggregate the entire beneficial ownership of
REMIC II. 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 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 A and Class B Certificates have been offered for sale
pursuant to the prospectus dated January 11, 2001 (the "Prospectus"), as
supplemented by the preliminary prospectus supplement dated January 11, 2001
(together, with the Prospectus, the "Preliminary Prospectus Supplement") as
further supplemented by the final prospectus supplement dated January 24, 2001
(together with the Prospectus, the "Final Prospectus Supplement") and the Class
X, 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 have been offered for sale pursuant
to the private placement memorandum dated January 24, 2001 (the "Private
Placement Memorandum") and the Prospectus Supplement.
The following sets forth the Class designation, initial Pass-Through
Rate, initial Aggregate Certificate Balance (or initial Notional Amount), and
Final Scheduled Distribution Date and Final Rated Distribution Date for each
Class of REMIC I Regular Interests and the Class R-I Certificates comprising the
interests in REMIC I and each Class of REMIC II Certificates comprising the
interests in REMIC II created hereunder:
REMIC I
The REMIC I Regular Interests have the pass-through rates and
Certificate Balances set forth in the definition thereof. The Class R-I
Certificates 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
INITIAL
AGGREGATE
INITIAL CERTIFICATE FINAL SCHEDULED FINAL RATED
PASS-THROUGH PRINCIPAL OR DISTRIBUTION DISTRIBUTION
DESIGNATION RATE(A) NOTIONAL AMOUNT DATE(B) DATE(C)
----------- ------- --------------- ------- -------
Class A-1 5.98000% $ 127,296,000.00 9/15/2006 February 1, 2031
Class A-2 6.40000% $ 189,000,000.00 10/15/2011 February 1, 2031
Class A-3 6.54000% $ 215,300,000.00 10/15/2011 February 1, 2031
Class X 1.61990% $ 623,573,069.00 8/15/2025 February 1, 2031
Class B 6.87000% $ 15,589,000.00 12/15/2011 February 1, 2031
Class C 7.07000% $ 17,148,000.00 12/15/2012 February 1, 2031
Class D 7.21000% $ 5,456,000.00 5/15/2013 February 1, 2031
Class E 7.83544% $ 10,913,000.00 3/15/2014 February 1, 2031
Class F 8.08544% $ 4,677,000.00 8/15/2014 February 1, 2031
Class G 8.08544% $ 8,574,000.00 6/15/2015 February 1, 2031
Class H 6.50000% $ 9,353,000.00 8/15/2016 February 1, 2031
Class J 6.50000% $ 3,118,000.00 12/15/2016 February 1, 2031
Class K 6.50000% $ 3,118,000.00 7/15/2017 February 1, 2031
Class L 6.50000% $ 4,677,000.00 9/15/2018 February 1, 2031
Class M 6.50000% $ 1,559,000.00 3/15/2019 February 1, 2031
Class N 6.50000% $ 1,559,000.00 9/15/2019 February 1, 2031
Class O 6.50000% $ 6,236,069.00 8/15/2025 February 1, 2031
Class R-II(d) 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
February 1, 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 R-II Certificates will be entitled to receive the proceeds of any
remaining assets in REMIC II after the principal amounts of all Classes of
Certificates have been reduced to zero and any Realized Losses previously
allocated thereto (and any interest thereon) have been reimbursed.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $623,573,070.
As provided herein, with respect to the Trust, the Trustee on behalf
of the Trust 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 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 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 Class A-1, Class A-2, Class A-3, 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 designated as the "regular
interests" in REMIC II and the Class R-II Certificates (together with the REMIC
Regular Certificates, the "REMIC II Certificates") will be designated as the
sole class of "residual interests" in REMIC II for purposes of the REMIC
Provisions. The portion of the Trust consisting of the Seller Partial Prepayment
Premium Obligations and the proceeds thereof will be designated as a grantor
trust under Subpart E of Part 1 of Subchapter J of the Code, and the Class X
Certificates, on the one hand, and the Class or Classes of Principal Balance
Certificates entitled to a distribution of principal in respect of a prepayment
by the related borrower relating to a release of a Mortgaged Property under any
of Loan Numbers 35 and 36 (Mendota I & II Loans) or Loan Numbers 76, 77, 78 and
79 (Eckerd Drug Loans) (in the circumstances described in Section 2.3(d) of this
Agreement), on the other hand, represent undivided beneficial interests in the
Seller Partial Prepayment Premium Obligations.
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 Principal Balance Certificates,
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
REMIC I is deemed to have acquired a Mortgaged Property.
"ACTUAL/360 ACCOUNT" has the meaning set forth in Section 5.6(a) of
this Agreement.
"ACTUAL/360 AMOUNT" has the meaning set forth in Section 1 of the
Mortgage Loan Purchase Agreement.
"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 paid in accordance
with Section 4.6(c); (iii) amounts paid to indemnify the Master Servicer, the
Special Servicer and the Trustee (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, the Sub-Servicers, the Special Servicer or the Trustee, 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, for any Mortgage Loan, the amount
specified in the Mortgage Loan Schedule, which is equal to the sum of the Master
Servicing Fee Rate, the related Sub-Servicing Fee Rate and the Trustee Fee Rate
for any month (in each case, expressed as a per annum rate) for such Mortgage
Loan in such month.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Master Servicer or
the Trustee 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, if no longer so published, such other publication as determined by the
Trustee in its reasonable discretion.
"ADVANCE REPORT DATE" means the second 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 either REMIC Pool as a REMIC or (ii) subject to Section 9.14(e),
result in the imposition of a tax upon the income of either REMIC Pool 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.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the
Certificate Balances of the Principal Balance Certificates or the REMIC I
Regular Interests, as the case may be, at any date of determination. With
respect to a Class of Principal Balance Certificates, Aggregate Certificate
Balance shall mean the aggregate of the Certificate Balances of all Certificates
of that Class at any date of determination.
"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.
"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. ss. 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
Mortgagor has filed a bankruptcy petition or the related Mortgagor has become
the subject of involuntary bankruptcy proceedings or the related Mortgagor has
consented to the filing of a bankruptcy proceeding against it 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 from the original
due date of such Balloon Payment, 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 by the
Master Servicer or the Trustee, 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, and to the extent not previously advanced by the Master
Servicer or the Trustee, all currently due and unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents and other
amounts which were required to be deposited in any Escrow Account (but were not
deposited) 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 Mortgaged Property or REO Property as determined by such Appraisal or
internal valuation, as the case may be, plus the amount of any escrows and
reserves held by or on behalf of the Trustee as security for the Mortgage Loan
(less the estimated amount of the obligations anticipated to be payable in the
next twelve months to which such escrows and reserves relate). Notwithstanding
the forgoing, without limiting the obligation to order and obtain an Appraisal
or internal valuation, in the event that the Appraisal or internal valuation, as
applicable, has not been received by the date on which an Appraisal Event occurs
(or, in the case of an Appraisal Event described in clause (ii) of the
definition thereof, within 60 days after receipt of the notice described in such
clause (ii)), the amount of the Appraisal Reduction will be deemed to be an
amount equal to 25% of the current Principal Balance of the related Mortgage
Loan until the Appraisal or internal valuation is received at which point the
Appraisal Reduction shall be calculated. 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. The Appraisal Reduction
will also be reduced by the amount of any Realized Loss of principal on the
related Mortgage Loan incurred prior to the liquidation or disposition thereof.
"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 by the Special Servicer 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 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" has 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 Certificate Account as of the second Business Day preceding such
Distribution Date that represent payments and other collections on or in respect
of the Mortgage Loans and any REO Properties that were received or deemed
received by the Master Servicer or the Special Servicer through the end of the
related Collection Period (as to any Post Determination Date Mortgage Loans,
sums received on or after the related Master Servicer Remittance Date, shall be
applied by the Master Servicer to reimburse any P&I Advances made on such Master
Servicer Remittance Date by the Master Servicer with respect to such Post
Determination Date Mortgage Loan and shall not be part of the Available
Distribution Amount for the next Distribution Date) exclusive of (i) any such
amounts that were deposited in the Certificate Account in error, (ii) amounts
that are payable or reimbursable to any Person other than the Certificateholders
(including, among other things, amounts attributable to Expense Losses and
amounts payable to the Master Servicer in respect of unpaid Master Servicing
Fees, the related Sub-Servicers in respect of unpaid Sub-Servicing Fees, the
Special Servicer in respect of unpaid Special Servicer Compensation or the
Trustee in respect of unpaid Trustee Fees and to the Master Servicer, the
Special Servicer and the Trustee in reimbursement of outstanding Advances and
interest thereon) and (iii) amounts that constitute Prepayment Premiums or
Seller Partial Prepayment Premiums, (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 or the Trustee for such Distribution Date
pursuant to Section 4.1 and/or Section 4.3 and (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 (c) any
amount withdrawn from the Actual/360 Account pursuant to Section 8.30(b).
"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.
"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 either 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 or the
Trustee.
"BASE INTEREST FRACTION" means, with respect to any principal
prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium, or if the Seller is obligated to pay any Seller Partial Prepayment
Premium and with respect to any Class of Certificates, a fraction (A) whose
numerator is the greater of (x) zero and (y) the difference between (i) the
Pass-Through Rate on that Class of Certificates and (ii) the Discount Rate used
in calculating the Prepayment Premium or Seller Partial Prepayment Premium with
respect to the Principal Prepayment and (B) whose denominator is the difference
between (i) the Mortgage Rate on the related Mortgage Loan and (ii) the Discount
Rate used in calculating the Prepayment Premium or Seller Partial Prepayment
Premium with respect to that Principal Prepayment, provided, however, that under
no circumstances will Base Interest Fraction be greater than one. If the
Discount Rate is greater than the Mortgage Rate on the related Mortgage Loan,
then the Base Interest Fraction will equal zero.
"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."
"BREACH" has the meaning set forth in Section 2.3(a).
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday,
(ii) a legal holiday in New York, New York or the principal cities in which the
Special Servicer, the Trustee or the Master Servicer conducts servicing or
trust/custodial operations, or (iii) a day on which banking institutions or
savings associations in New York, New York or the principal cities in which the
Special Servicer (currently, Chicago, Illinois), the Trustee (currently,
Minneapolis, Minnesota and Columbia, Maryland) or the Master Servicer
(currently, Atlanta, Georgia) conducts servicing or trust/custodial operations
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.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 X.X.X.xx. 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 account shall be an
Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate or
Interest (other than the Class X Certificates and the Residual Certificates) 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 principal amount set forth on the face of such Certificate (in the
case of a Certificate), or as ascribed thereto in the Preliminary Statement
hereto (in the case of an Interest), minus (i) the amount of all principal
distributions previously made with respect to such Certificate pursuant to
Section 6.3(a) or deemed to have been made with respect to such Interest
pursuant to Section 6.2(a), (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.
"CERTIFICATE OWNER" means, 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 Trustee.
"CERTIFICATEHOLDERS" has the meaning provided in the definition of
"Holder."
"CERTIFICATES" means, collectively, the REMIC II Certificates and
the Class R-I Certificates.
"CLASS" means, with respect to the REMIC I Interests and REMIC II
Certificates, any Class of such Certificates or Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS A-3
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" and "CLASS R-II CERTIFICATES" mean the Certificates designated as
"Class A-1," "Class A-2," "Class A-3," "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" and "Class R-II," 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, Class A-2
Certificates and Class A-3 Certificates, collectively.
"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 Principal Balance 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 Principal Balance
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 and the Residual
Certificates), the excess, if any, of the Weighted Average Net Mortgage Rate for
such Distribution Date over the Pass-Through Rate for such Class of
Certificates.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"CLEARSTREAM" means Clearstream Banking, societe anonyme.
"CLOSING DATE" means January 30, 2001.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA REPORTS" means the following reports in CMSA format (as in
effect on the date hereof and as may be modified from time to time by the CMSA)
in, and containing substantially the information contemplated by, the forms
attached hereto as part of Exhibit W delivered to the Trustee by the Master
Servicer (combining reports in such forms prepared by the Master Servicer and
Special Servicer (with respect to Specially Serviced Mortgage Loans and REO
Properties)): (A)(i) a Comparative Financial Status Report; (ii) Delinquent Loan
Status Report; (iii) an NOI Adjustment Worksheet; (iv) without duplication with
Section 8.14, an Operating Statement Analysis Report, (v) subject to Section
8.11(h), a Servicer Watch List, (vi) a Property File, (vii) a Loan Set-Up File
(with respect to initial Distribution Date only), (viii) a Loan Periodic Update
File, (ix) Financial File; and (B) the following supplemental reports prepared
by the Special Servicer: (i) an Historical Loan Modification Report, (ii) and
Historical Liquidation Report and (iii) an REO Status Report.
"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
aggregate Master Servicing Fee for the related Collection Period calculated in
respect of all the Mortgage Loans (including REO Mortgage Loans) and (ii) with
respect to Compensating Interest to be paid by the Special Servicer hereunder,
not more than 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 or 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.
"CONTROLLING CLASS" means the most subordinate Class of REMIC
Regular Certificates outstanding at any time of determination; provided, that,
no Class may be the Controlling Class at any time that the then Certificate
Balance of such Class is less than 25% 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 principal corporate
trust office of the Certificate Registrar. The principal corporate trust office
of the Trustee is presently located for certificate transfer purposes at Xxxxx
Fargo Center, Sixth Street and Marquette Avenue MAC #N9303-121, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS)--Xxxxxx Xxxxxxx
Xxxx Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2001-PPM, and for all other purposes at 00000 Xxxxxx Xxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services (CMBS)--Xxxxxx
Xxxxxxx Xxxx Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-PPM, or at such other address as the Trustee may
designate from time to time by notice to the Certificateholders, the Depositor,
the Master Servicer and the Special Servicer.
"CORRESPONDING CERTIFICATES" means, with respect to each Class of
REMIC I Regular Interests, the Class of Certificates bearing the same letter
designation.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to each
Class of Certificates, the REMIC I Regular Interest having the same letter
designation.
"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 the 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 January 1, 2001.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage
Loan, as of any date of determination and for any period, the actual debt
service coverage ratio 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 and
based upon the amount of time such payment has been deferred) 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.
"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.
"DEPOSITOR" means Xxxxxx Xxxxxxx Xxxx Xxxxxx 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 dated
January 30, 2001 by and among the Depositor and the Depository.
"DETERMINATION DATE" means, with respect to any Distribution Date,
the earlier of (i) the 12th 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 3rd Business Day prior to the related Distribution Date.
"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, regardless of the
compounding used to calculate the actual prepayment penalty on the Mortgage
Loans. 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, in the
case of Mortgage Loans which require the related Mortgagor to pay a Prepayment
Premium or if the Seller is obligated to pay any Seller Partial Prepayment
Premium, calculated by reference to the Maturity Date of such Mortgage Loan, or
weighted average life, in the case of Mortgage Loans which require the related
Mortgagor to pay a Prepayment Premium calculated by reference to the weighted
average life of such Mortgage Loan, (one longer and one shorter) most nearly
approximating the Maturity Date or weighted average life, as applicable, 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 FOREIGN PERSON" means, with respect to a Class R-I or
Class R-II Certificate, any Foreign Person or agent thereof other than (i) a
Foreign Person that holds the Class R-I or Class R-II Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Certificate Registrar with an effective IRS
Form W-8ECI (or successor form) or (ii) a Foreign Person that has delivered to
both the transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class R-I or Class
R-II Certificate to it is in accordance with the requirements of the Code and
the regulations promulgated thereunder and that such transfer of the Class R-I
or Class R-II Certificate will not be disregarded for federal income tax
purposes.
"DISQUALIFIED ORGANIZATION" 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 Trustee based upon an Opinion of
Counsel that the holding of an ownership interest in a Residual Certificate by
such Person may cause either of the REMIC Pools, 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, 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 Trustee, 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 any such
15th day is not a Business Day, on the next succeeding Business Day.
"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 first due without the application of grace periods.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "F-1" by Fitch and "A-1" by S&P (if the deposits are
to be held in the account for 30 days or less), or (B) long-term unsecured debt
obligations are rated at least "A" by Fitch and "A" by S&P, if the deposits are
to be held in the account more than 30 days or (ii) a segregated trust account
or accounts maintained in the trust department of the Trustee or other financial
institution subject to regulations regarding fiduciary funds on deposit similar
to Title 12 of the Code of Federal Regulations Section 9.10(b), or (iii) an
account or accounts of a depository institution acceptable to each Rating
Agency, as evidenced by Rating Agency Confirmation with respect to the use of
any such account as the Certificate Account or the Distribution Account.
Notwithstanding anything in the foregoing to the contrary, an account shall not
fail to be an Eligible Account solely because it is maintained with Xxxxx Fargo
Bank Minnesota, N.A. or Xxxxx Fargo Bank Iowa, N.A., a wholly-owned subsidiary
of Xxxxx Fargo & Co. provided that Xxxxx Fargo Bank Iowa, N.A.'s or its parent's
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are at least "A-1" in the case of S&P, and "F-1" in the case of Fitch,
if the deposits are to be held in the account for 30 days or less, or (B)
long-term unsecured debt obligations are rated at least "A" in the case of S&P
and "A" in the case of Fitch, if the deposits are to be held in the account more
than 30 days.
"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 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 or time deposits in, unsecured certificates of deposit
of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the
Master Servicer, the Special Servicer, or any Affiliate of the Master
Servicer, the Special Servicer or the Trustee, 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 "A-1" by Fitch and "A-1+" by S&P or, in each case, if
not rated by a Rating Agency, then such Rating Agency has issued a Rating
Agency Confirmation;
(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 date
upon which, as described in this Agreement, such amounts are required to
be withdrawn from the Certificate Account and which meets the minimum
rating requirement for such entity described above (or for which Rating
Agency Confirmation is obtained with respect to such ratings);
(iv) debt obligations (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 are rated "AA-" or its equivalent by each Rating
Agency, 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
and held in the Certificate Account to exceed 5% of the sum of the
aggregate Certificate Principal Balance of the Principal Balance
Certificates and the aggregate principal amount of all Eligible
Investments in the Certificate Account;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
rated "A-1" by Fitch and "A-1+" by S&P (or for which Rating Agency
Confirmation is obtained with respect to such ratings);
(vi) units of investment funds (including money market funds) rated
in the highest long-term category by Fitch, or if not rated by Fitch then
otherwise approved by Fitch, and the highest long-term category by S&P, or
if not rated by S&P then S&P has issued a Rating Agency Confirmation;
(vii) guaranteed reinvestment agreements maturing within 365 days or
less issued by any bank or insurance company whose long-term unsecured
debt rating is not less than "AA-" (or its equivalent rating) by Fitch and
"AA-" by S&P (if rated by Fitch or, if not rated by Fitch, by S&P and
another nationally recognized statistical rating organization), or for
which Rating Agency Confirmation is obtained with respect to such ratings;
(viii) any money market funds that maintain a constant asset value
and that are rated "AAAm" or "AAAm-G" (or its equivalent rating) by Fitch
and S&P, and any other demand, money-market or time deposit, or any other
obligation, security or investment, with respect to which Rating Agency
Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a discount,
earning a return "in the nature of interest" within the meaning of
Treasury Regulations Section 1.860G-2(g)(i) (as evidenced by an Opinion of
Counsel delivered to the Trustee, which, if such investment is made by the
Master Servicer, shall be delivered by the Master Servicer at the Master
Servicer's expense), as are acceptable to the Rating Agencies (as
evidenced by Rating Agency Confirmation) and treated as "permitted
investments" that are "cash flow investments" under Code Section
860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) 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 (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Code Section 860G(a)(5); and provided, further,
that any such instrument shall have a maturity date no later than the date such
instrument is required to be used to satisfy the obligations under this
Agreement, and, in any event, shall not have a maturity in excess of one year;
any such instrument must have a predetermined fixed dollar of principal due at
maturity that cannot vary or change; if rated, the obligation must not have an
"r" highlighter affixed to its rating; 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 either REMIC Pool (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. No Eligible Investments shall be purchased at a price in excess of
par. 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.
"ERISA RESTRICTED CERTIFICATE" means any Class H, Class J, Class K,
Class L, Class M, Class N or Class O Certificate; provided, that any such
Certificate (a) will cease to be considered an ERISA Restricted Certificate and
(b) will cease to be subject to the transfer restrictions contained in Section
3.3(d) if, as of the date of a proposed transfer of such Certificate, either (i)
it is rated in one of the four highest generic ratings categories by a Rating
Agency or (ii) relevant provisions of ERISA would permit transfer of such
Certificate to a Plan.
"ESCROW ACCOUNT" means an account established by or on behalf of 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, repairs, tenant improvements, leasing commissions, rental
achievements, environmental matters and other reserves or comparable items.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(b).
"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.
"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" has 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
hereto.
"FINAL RECOVERY DETERMINATION" means a determination with respect to
any Mortgage Loan or Specially Serviced Mortgage Loan by the Special Servicer,
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 Special Servicer expects to
be finally recoverable on such Mortgage Loan, without regard to any obligation
of the Master Servicer or the Trustee, 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 Mortgage Loan
upon making such determination. The Master Servicer shall notify the Trustee of
such determination and the Trustee 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.
"FINANCIAL MARKET PUBLISHER" means each of Bloomberg Financial
Service, Xxxxx Financial and Intex Inc.
"FITCH" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"FOREIGN PERSON" means a Person other than a citizen or resident of
the United States, a corporation, partnership (except to the extent provided in
applicable Treasury regulations), or other entity created or organized in or
under the laws of the United States, any state or the District of Columbia
(including any entity treated as a corporation or partnership for federal income
tax purposes), an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more Persons who are not Foreign Persons have the authority to control
all substantial decisions of such trust.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"GRANTOR TRUST" means the grantor trust described in the Preliminary
Statement hereto.
"HOLDER" means, with respect to the REMIC I Regular Interests, the
Trustee, and with respect to any Certificate, the Person in whose name a
Certificate is registered on the Certificate Register.
"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-II Certificates), a
Percentage Interest of 35% or more in the Class R-II 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 Regulations
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.
"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" means 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.
"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.
"INTERESTED PERSON" means, as of any date of determination, the
Master Servicer, the Special Servicer, the Depositor, the holder of any related
Junior Indebtedness (with respect to any particular Mortgage Loan), 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.
"XXXXXXX NATIONAL" has the meaning assigned in the Preliminary
Statement hereto.
"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.
"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" means 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.
"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, appraisal fees, 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 (i)
paid out of income from the related REO Property, to the extent available or
(ii) advanced by the Master Servicer, subject to Section 4.4 and Section 4.6(e)
hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.00% 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 Servicing Advances and interest thereon (to the extent not otherwise
paid pursuant to Section 4.6(c)).
"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,
Late Collections and all other amounts recovered from the related Mortgagor and
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.
"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; provided, however, with respect to the calculation of the
original Loan-to-Value Ratio of a Deleted Mortgage Loan as described in clause
(iv) of the definition of "Qualifying Substitute Mortgage Loan", the parties
hereto acknowledge that an Appraisal satisfying the requirements of the
definition of such term may not have been obtained and the original
Loan-to-Value Ratio shall be based upon the valuation method used by the Seller
in calculating the loan-to-value ratio at the time of origination of the
applicable Deleted Mortgage Loan.
"LOCK-BOX ACCOUNT" has 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.
"MAI" means Member of the Appraisal Institute.
"MASTER SERVICER" means CapMark Services, L.P. 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 Trustee containing such information regarding the Mortgage Loans as will
permit the Trustee 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
Trustee and the Depositor may from time to time mutually agree.
"MASTER SERVICING FEE" means for each calendar month, as to each
Mortgage Loan (including REO Mortgage Loans), the Master 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).
"MASTER SERVICING FEE RATE" means 0.02% per annum.
"MATERIAL DOCUMENT DEFECT" has the meaning set forth in the Mortgage
Loan Purchase Agreement.
"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 waiver, amendment or
consent 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 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 CERTIFICATEHOLDERS REPORT" means a report provided pursuant
to Section 5.4 by the Trustee 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, separately stating any Seller Partial Prepayment
Premium; (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 Determination 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 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 deposited in 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 the Master Servicing Fees, Sub-Servicing Fees and the
Special Servicing Fees; (xi) the amount of Unpaid Interest, Realized Losses or
Expense Losses, if any, incurred with respect to the Mortgage Loans, including a
breakout by type of such Expense Losses; (xii) the aggregate amount of Servicing
Advances and P&I Advances outstanding separately stated that have been made by
the Master Servicer and the Trustee; 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.
"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 Xxxxx Fargo Bank Minnesota, N.A., as Trustee
for Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-PPM, without recourse,
representation or warranty" or if the original Mortgage Note is not
included therein, then a lost note affidavit 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 (if recording is customary in
the jurisdiction in which such power of attorney was executed) or
certified by a title insurance company or escrow company to be a true copy
thereof; provided that if such original Mortgage cannot be delivered with
evidence of recording thereon on or prior to the 45th day following 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 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 certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and
complete copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if
any, with evidence of recording thereon (which are reflected in the
Mortgage Loan Schedule), 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 on or prior
to the 45th day following the Closing Date with evidence of recordation
thereon or have been lost after recordation, true copies of such
modifications, consolidations and extensions certified by the Seller
together with (A) in the case of a delay caused by the public recording
office, an Officer's Certificate of the 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 certification by the
appropriate county recording office where such document is recorded that
such copy is a true and complete copy of the original recorded
modification, consolidation or extension agreement, and the originals of
all assumption agreements, if any;
(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 "Xxxxx Fargo Bank Minnesota, N.A., as Trustee for
Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-PPM";
(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 Seller, or in the case of an original blanket intervening
assignment of Mortgage retained by the Seller, a copy thereof certified by
the Seller or, if any original intervening assignment of Mortgage has not
yet been returned on or prior to the 45th day following the Closing Date
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 Seller stating
that such original intervening assignment of Mortgage has been sent to the
appropriate public recording official for recordation or (B) in the case
of an original intervening assignment of Mortgage that has been lost after
recordation, a certification by the appropriate county recording office
where such assignment is recorded that such copy is a true and complete
copy of the original recorded intervening assignment of Mortgage;
(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
on or prior to the 45th day following the Closing Date from the applicable
public recording office, a copy of such Assignment of Leases certified by
the 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 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 "Xxxxx Fargo
Bank Minnesota, N.A., as Trustee for Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2001-PPM,"
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) (A) UCC financing statements (together with all recorded
assignments thereof) and (B) UCC-2 or UCC-3 financing statements to the
Trustee, executed and delivered in connection with the Mortgage Loan;
(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease
and there is a lien in favor of the mortgagee in such lease;
(xi) copies of any lock-box agreements and intercreditor agreements,
if any, related to any Mortgage Loan;
(xii) the original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan, endorsed to the Trustee,
which shall be held by the Trustee or its designee on behalf of the
Trustee, and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan and this
Agreement; and
(xiii) the original environmental indemnity agreement, if any,
related to any Mortgage Loan.
"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. Certain of
the Mortgage Loans are actually portions of Mortgage Loans secured by separate
Mortgaged Properties but evidenced by the same Mortgage Loan Documents; such
Mortgage Loans are identified on the Mortgage Loan Schedule.
"MORTGAGE LOAN PURCHASE AGREEMENT" means that certain Mortgage Loan
Purchase Agreement between Xxxxxxx National and the Depositor dated as of
January 1, 2001, a form of which is attached hereto as Exhibit K.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means the schedule
attached hereto as Schedule I, which identifies each Mortgage Loan, as such
schedule 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.
"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 Master
Servicing Fee for the related Collection Period calculated in respect of all
such Mortgage Loans 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 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).
"NET MORTGAGE RATE" means, as to any Mortgage Loan, 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) minus the Administrative Cost Rate. In
addition, because the Certificates accrue interest on the basis of a 360 day
year consisting of twelve 30 day months, when calculating the Pass-Through Rate
for the REMIC I Regular Interests and the Class E, Class F, Class G and Class X
Certificates for each Distribution Date, the Net Mortgage Rate on a Non-30/360
Loan will be appropriately adjusted to reflect such difference.
"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.
"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 either REMIC Pool to
fail to qualify as a REMIC or the Grantor Trust to qualify as a grantor trust at
any time that any Certificates are outstanding nor cause a "prohibited
transaction," "prohibited contribution" or any other tax to be imposed on either
REMIC Pool or the Trust.
"NONECONOMIC RESIDUAL INTEREST" means a Residual Interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulations
Section 1.860E-1(c).
"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 or the Trustee that, in its respective sole
discretion, exercised in good faith and, with respect to the Master Servicer, in
accordance with the Servicing Standard, will not be or, in the case of a current
delinquency, would not be, ultimately recoverable, from Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, Purchase Proceeds or 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 the Trustee is delivering such
Officer's Certificate) and (in either case) to the Special Servicer and the
Trustee 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 or the Trustee, 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.
"NON-REGISTERED CERTIFICATE" means unless and until registered under
the Securities Act, any Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O or Class X Certificate or
Residual Certificate.
"NON-30/360 LOAN" means the Mortgage Loans identified on the
Mortgage Loan Schedule as Loan Numbers 109 (Interchange I, II and III) and 132
(Xxxxxxx Xxxxxxxxx Building), each of which is a Mortgage Loan that accrues
interest other than on the basis of a 360-day year consisting of twelve 30-day
months.
"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 (v) 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 persons
performing similar roles on behalf of the Depositor, or (w) 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, or persons performing similar roles on
behalf of the Master Servicer or the Special Servicer, as applicable, (x) in the
case of the Trustee, a certificate signed by a Responsible Officer and (y) in
the case of the Seller, 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, Secretary or General Counsel, or persons
performing similar roles on behalf of the Seller.
"OPERATING ADVISER" shall have the meaning specified in Section
9.37(a).
"OPERATING STATEMENT ANALYSIS REPORT" means a report which is one
element of the CMSA Reports and which is substantially in the form of Exhibit N.
"OPINION OF COUNSEL" means a written opinion of counsel addressed to
the Trustee, reasonably acceptable in form and substance to the Trustee, and who
is not in-house counsel to the party required to deliver such opinion.
"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.
"P&I 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 (without regard to grace periods)
during the related Collection Period was not received by the Master Servicer as
of the related Determination Date (or, in the case of Post Determination Date
Mortgage Loans, as of the Master Servicer Remittance 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 (or, in the case of Post Determination Date Mortgage
Loans, as of the Master Servicer Remittance 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 (or as to Post Determination Date Mortgage Loans, due
on the related Due Date during the month in which the related Collection Period
ends), 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 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.
"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.
"PARTICIPANT" 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.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect to
any Class of REMIC I Regular Interests or REMIC Regular Certificates, for the
first 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 shall equal the Weighted Average Net Mortgage Rate
for such Distribution Date, (ii) the Class E Certificates, the Weighted Average
Net Mortgage Rate for such Distribution Date less 0.25%, (iii) the Class F and
Class G Certificates, the Weighted Average 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 and (v) the Class A-1, Class A-2, Class
A-3, Class B, Class C, Class D, Class H, Class J, Class K, Class L, Class M,
Class N and Class O Certificates, the fixed rate corresponding to such Class set
forth in the Preliminary Statement hereto.
"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 or Disqualified Foreign Person.
"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.
"PHASE I ENVIRONMENTAL REPORT" means a report by an Independent
Person who regularly conducts environmental site assessments in accordance with
then current ASTM standards (and which will include radon and asbestos
assessments) imposed by institutional commercial mortgage lenders and who has a
reasonable amount of experience conducting such assessments.
"PLACEMENT AGENT" means Xxxxxx Xxxxxxx & Co. Incorporated.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor regulations
set forth in 29 X.X.X.xx. 2510.3-101.
"POST DETERMINATION DATE MORTGAGE LOANS" means, with respect to a
Distribution Date, the Mortgage Loans with grace periods that expire after the
related Determination Date.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means, in the case of a Mortgage Loan,
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 Master Servicing Fee, the related Sub-Servicing Fee
and the Trustee Fee), to the extent collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date and related Collection Period, 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 Master Servicing Fee, the related Sub-Servicing 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.
"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 payments made or due (without regard to grace periods) on or 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 and preceding Collection Periods.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, 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 to the extent received or advanced, as the case may be, in
respect of the Mortgage Loans and any REO Mortgage Loans with 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 received or advanced, in respect of the related Mortgage Loan
on a Due Date occurring during or prior to the related Collection Period,
exclusive, however, of any Principal Prepayments received during the related
Collection Period that the Master Servicer does not remit for inclusion in the
Available Distribution Amount for such Distribution Date; and (iii) any amount
withdrawn from the Actual/360 Account pursuant to Section 8.30(b).
"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.
"PRIVATE PLACEMENT MEMORANDUM" has the meaning set forth in the
Preliminary Statement hereto.
"PROSPECTUS" has the meaning set forth in the Preliminary Statement
hereto.
"PROSPECTUS SUPPLEMENT" means, collectively, the Preliminary
Prospectus Supplement and the Final Prospectus Supplement.
"PURCHASE PRICE" means, with respect to the repurchase of a Mortgage
Loan or REO Property pursuant to Article II of this Agreement or the purchase of
a Mortgage Loan pursuant to Section 9.36, 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
Servicing Fees and Liquidation Fees) that are reimbursable to the Master
Servicer, the Special Servicer or the Trustee, plus (D) if such Mortgage Loan is
being repurchased or substituted for by Seller pursuant to the Mortgage Loan
Purchase Agreement, all expenses reasonably incurred or to be incurred by the
Master Servicer, the Special Servicer, the Depositor or the Trustee in respect
of the Breach or Material Document Defect giving rise to the repurchase or
substitution obligation (and that are not otherwise included in (C) above).
"PURCHASE PROCEEDS" means any cash amounts received by the Master
Servicer in connection with: (i) the repurchase of a Mortgage Loan by 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).
"QUALIFIED BIDDER" means (A) as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person) and (B) as used in Section 9.31(c), any Person qualified
to act as successor Special Servicer hereunder pursuant to Section 9.21(b)
(including the requirement set forth in Section 9.21(b) that Rating Agency
Confirmation shall have been obtained from each Rating Agency with respect to
such Person).
"QUALIFIED INSURER" means, (i) with respect to any insurance
hereafter obtained 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 "A" by Fitch (or rated at least "A" by two other national
statistical rating organizations), or if not so rated, then Fitch has issued a
Rating Agency Confirmation, and "BBB" by S&P if rated by S&P or if not rated by
S&P, then S&P has issued a Rating Agency Confirmation, 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 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 "A" by Fitch if rated by Fitch, or if not so
rated, then rated at least "A" by two other national statistical rating
organizations or Fitch has issued a Rating Agency Confirmation, and "A" by S&P
if rated by S&P or if not rated by S&P, then S&P has issued a Rating Agency
Confirmation, or (iii) in either case, a company not satisfying clause (i) or
(ii) but with respect to which Rating Agency Confirmation is obtained.
"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 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 and has a Debt Service Coverage Ratio at least equal to the
current Debt Service Coverage 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)
has an engineering report relating to the related Mortgaged Property in its
Mortgage Files and such engineering 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; and
(viii) as to which the Trustee has received an Opinion of Counsel, at the
Seller's expense, that such Mortgage Loan is a "qualified replacement mortgage"
within the meaning of Section 860G(a)(4) of the Code; 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, and provided, further that no such Mortgage Loan shall be substituted
for a Deleted Mortgage Loan unless the Operating Adviser shall have approved of
such substitution (provided, however, that such approval of the Operating
Adviser must be delivered within 30 days from the date the relevant information
is delivered to the Operating Adviser and may not be unreasonably withheld;
provided, further, that with respect to any specific substitution of a Deleted
Mortgage Loan, the Operating Adviser will have the right to withhold its consent
to successive proposals for substitution of such Deleted Mortgage Loan for a
period of up to 60 days after its first notice of a proposed substitution
relating thereto and thereafter, the consent of the Operating Adviser will no
longer be required). 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 clause (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 deliver a
copy of such certification to the Master Servicer, the Special Servicer, the
Trustee and the Operating Adviser promptly.
"RATING AGENCIES" means Fitch and S&P.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) 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 then-current 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 and any Expense Losses set forth in the last sentence of the definition of
"Realized Principal Loss" or (iv) in the case of a Modification Loss, a
Modification Loss described in clause (iii) 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.
"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. Notwithstanding clause (iv) of the
preceding sentence, to the extent that Expense Losses (exclusive of Expense
Losses resulting from payment of the Special Servicing Fee) exceed amounts with
respect to the Mortgage Loans that were identified as allocable to principal,
such excess shall be 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.
"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.
"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 REGULAR INTEREST A" means the REMIC I Regular Interest A-1,
REMIC I Regular Interest A-2 and REMIC I Regular Interest A-3, collectively.
"REMIC I REGULAR INTEREST A-1" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST A-2" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having an initial Certificate 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST A-3" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having an initial Certificate Balance equal to the aggregate
Certificates Balance of the Class A-3 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST B" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST C" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST D" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST E" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST F" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST G" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST H" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST J" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST K" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST M" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST N" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTEREST O" means the uncertificated interest
designated as a "regular interest" in REMIC I, 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 Net Mortgage Rate.
"REMIC I REGULAR INTERESTS" means, collectively, the REMIC I Regular
Interest A-1, REMIC I Regular Interest A-2, REMIC I Regular Interest A-3, REMIC
I Regular Interest B, REMIC I Regular Interest C, REMIC I Regular Interest D,
REMIC I Regular Interest E, REMIC I Regular Interest F, REMIC I Regular Interest
G, REMIC I Regular Interest H, REMIC I Regular Interest J, REMIC I Regular
Interest K, REMIC I Regular Interest L, REMIC I Regular Interest M, REMIC I
Regular Interest N and REMIC I Regular Interest O.
"REMIC II" means the segregated pool of assets consisting of the
REMIC I Regular Interests for which a REMIC election has been made pursuant to
Section 12.1(a) hereof.
"REMIC II CERTIFICATES" has the meaning set forth in the final
paragraph of the Preliminary Statement hereto.
"REMIC POOL" means each of REMIC I and REMIC II.
"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 defined as "rents from real property" 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 second 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.
"RESERVE ACCOUNT" shall mean the Reserve Account maintained by the
Trustee 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 and, with respect to REMIC II, the Class R-II Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee, any officer assigned to the Corporate Trust Services (CMBS) Group, each
with specific responsibilities for the matters contemplated by this Agreement
and when used with respect to any successor Trustee, any Vice President,
Assistant Vice President, corporate trust officer or any assistant corporate
trust officer, or persons performing similar roles on behalf of the Trustee.
"REVERSE SEQUENTIAL ORDER" means, as to REMIC II, 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.
"REVIEW THRESHOLD LOAN" has the meaning set forth in Section 8.7(b).
"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.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc. or its successor in interest.
"SCHEDULED PAYMENT" means each scheduled payment of principal of,
and/or 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 Xxxxxxx National.
"SELLER PARTIAL PREPAYMENT PREMIUM" means the Prepayment Premium
payable by the Seller as its Seller Partial Prepayment Premium Obligation.
"SELLER PARTIAL PREPAYMENT PREMIUM OBLIGATION" means the obligation
of the Seller under the Mortgage Loan Purchase Agreement to pay a Prepayment
Premium in connection with the prepayment of any six (6) Mortgage Loans
(identified on the Mortgage Loan Schedule as Loan Numbers 35 and 36 (Mendota I
and II loans) and Loan Numbers 76, 77, 78 and 79 (Eckerd Drug loans)) in
connection with the release of a related Mortgaged Property during a lock-out
period if the Prepayment Premium under any such Mortgage Loan is not paid by the
related Mortgagor. The Seller Partial Prepayment Obligations shall not be an
asset of either REMIC Pool but shall be an asset of the Grantor Trust.
"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 Servicer, the Special Servicer or the Trustee, 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 or the Trustee, 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 or the Trustee'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 MORTGAGE FILE" means copies (either hard copy or computer
imaged format) of the mortgage documents listed in the definition of Mortgage
File relating to a Mortgage Loan and the other documents referenced in Section
2.1(d).
"SERVICING ADVANCE" means any cost or expense of the Master Servicer
or the Trustee, 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 Special Servicer (subject to Section 4.6(e)) or the Trustee, as
the case may be, to protect and preserve the security for such Mortgage Loan.
"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) 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 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 similar to the Mortgage Loans, giving due consideration to the maximization
of the net present value of the mortgage loans;
but without regard to: (I) any other relationship that the Master Servicer, the
Special Servicer, any Sub-Servicer, the Depositor or the Trustee, or any
Affiliate of any of them may have with the related Mortgagor or any Affiliate of
the Mortgagor, the Depositor or Seller; (II) the ownership of any Certificate by
the Master Servicer, any Sub-Servicer, the Special Servicer or any Affiliate of
any of them; (III) the Master Servicer's or the Trustee's obligation to make P&I
Advances and Servicing Advances as specified herein or to incur servicing
expenses; (IV) the Master Servicer's, the Sub-Servicer's or the Special
Servicer's right to receive compensation for its services hereunder or with
respect to any particular transaction; (V) the ownership or servicing or
management for others by the Master Servicer, the Sub-Servicer or the Special
Servicer of any other mortgage loans or property; (VI) to the extent of a merger
with the Seller, any obligation of the Special Servicer to pay any indemnity
with respect to any repurchase obligation; (VII) the ownership of any Junior
Indebtedness by the Master Servicer, the Sub-Servicer or Special Servicer or any
Affiliate with respect to the Mortgaged Property securing any Mortgage Loan; or
(VIII) any obligation of the Seller to repurchase any Mortgage Loans pursuant to
the Mortgage Loan Purchase Agreement.
"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 in accordance with the Servicing Standard, 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 Mortgagor
has consented to the appointment of a receiver or conservator in any insolvency
or similar proceeding of, or relating to, such Mortgagor or to all or
substantially all of its property, or the Mortgagor 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 30
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 Mortgagor 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 Mortgagor admits
in writing its inability to pay its debts generally as they become due, files a
petition to take advantage of any applicable insolvency or reorganization
statute, makes an assignment for the benefit of its creditors or voluntarily
suspends payment of its obligations; and (vi) any Mortgage Loan as to which, in
the good faith reasonable judgment of the Master Servicer, (a) a payment default
is imminent or is likely to occur within 60 days, or (b) any other default is
imminent or is likely to occur within 60 days and such default, in the judgment
of the Master Servicer, is reasonably likely to materially and adversely affect
the interests of the Certificateholders.
"SIMILAR LAW" has the meaning set forth in Section 3.3(d).
"SNDA" has the meaning set forth in Section 8.3(a)(J).
"SPECIAL SERVICER" means PPM Finance, Inc. 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 and any other amounts to be paid to the Special Servicer
pursuant to the terms of this Agreement.
"SPECIAL SERVICER MONTHLY REPORTS" mean the reports substantially in
the form of Exhibit O attached hereto.
"SPECIAL SERVICER REMITTANCE DATE" means the Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan which is a Specially Serviced Mortgage Loan (including REO
Mortgage Loans), 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 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 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 and
the Trustee, in 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 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" means an entity with whom either the Master Servicer
or the Special Servicer has entered a Sub-Servicing Agreement.
"SUB-SERVICING AGREEMENT" means a sub-servicing agreement between
the Master Servicer (or the Special Servicer) and a Sub-Servicer.
"SUB-SERVICING FEE" means the monthly amount, based on the
Sub-Servicing Fee Rate, to which the Sub-Servicer is entitled in compensation
for sub-servicing a Mortgage Loan.
"SUB-SERVICING FEE RATE" will equal, for any Mortgage Loan, the
excess of Administrative Cost Rate over the Master Servicing Fee Rate and the
Trustee Fee Rate.
"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.
"SUBORDINATE INTERESTS" means, collectively, REMIC I Regular
Interest B, REMIC I Regular Interest C, REMIC I Regular Interest D, REMIC I
Regular Interest E, REMIC I Regular Interest F, REMIC I Regular Interest G,
REMIC I Regular Interest H, REMIC I Regular Interest J, REMIC I Regular Interest
K, REMIC I Regular Interest L, REMIC I Regular Interest M, REMIC I Regular
Interest N and REMIC I Regular Interest O.
"SUCCESSFUL BIDDER" has the meaning set forth in Section 8.29(d) or
Section 9.31(d), as applicable.
"TAX MATTERS PERSON" means the person designated as the "tax matters
person" of each REMIC Pool created pursuant to Section 12.1 hereof and pursuant
to Treasury Regulations Section 1.860F-4(d) and temporary Treasury Regulations
Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" has 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), and REMIC II and the Grantor Trust.
"TRUSTEE" means Xxxxx Fargo Bank Minnesota, N.A., 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.
"TRUSTEE FEE" means for each calendar month, as to each Mortgage
Loan (including REO Mortgage 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.
"TRUSTEE FEE RATE" means 0.00325% per annum.
"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 and
Xxxxxx Brothers Inc., or each of their respective successors in interest.
"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 at the
applicable Pass-Through Rate other than unpaid interest relating to Net
Aggregate Prepayment Interest Shortfalls.
"U.S. 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.
"USAP" shall have the meaning set forth in Section 8.13.
"WEIGHTED AVERAGE NET MORTGAGE RATE" means, with respect to any
Distribution Date, the weighted average of the Net Mortgage Rates for the
Mortgage Loans, weighted on the basis of their respective Scheduled Principal
Balances as of the close of business on the preceding Distribution Date.
"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 principal received on
such Mortgage Loan for so long as it remains a Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS.
(a) Calculations required to be made by the Trustee 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 Trustee as supplied to the Trustee by the Master Servicer. The Trustee
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 Trustee has actual knowledge of an error in the calculations, the Trustee
shall inform the Master Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage Loan
documents, any amounts received in respect of a Mortgage Loan as to which a
default has occurred and is continuing shall be applied first to overdue
interest due with respect to such Mortgage Loan at the Mortgage Rate thereof,
next to current interest due with respect to such Mortgage Loan at the Mortgage
Rate thereof, next to the reduction of the principal balance of such Mortgage
Loan to zero if such Mortgage Loan has been accelerated and in respect of any
scheduled payments of principal then due to the extent that such Mortgage Loan
has not yet been accelerated, next to any default interest and other amounts due
on such Mortgage Loan and finally to Late Fees due with respect to such Mortgage
Loan.
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 Certificateholders 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, Monthly Certificateholders Report, Special Servicer
Remittance Date, Master Servicer Remittance Date or Determination Date, as
applicable, immediately preceding such Distribution Date.
(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.
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 establish the Trust, appoint the Trustee as trustee of the
Trust, assign in trust 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 the Mortgage Loan Purchase Agreement that are
permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii)
the Initial Deposit and (iv) all other assets included or to be included in
REMIC I for the benefit of REMIC II. 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 and after 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, Seller pursuant to the 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."
Seller is required, pursuant to the Mortgage Loan Purchase Agreement, to deliver
to the Trustee the remaining documents constituting the Mortgage File for each
Mortgage Loan within the time period set forth therein. None of the Trustee, any
Custodian, the Master Servicer or the Special Servicer shall be liable for any
failure by Seller or the Depositor to comply with the document delivery
requirements of the Mortgage Loan Purchase Agreement and this Section 2.1(b).
(c) The Trustee shall, on behalf of and at the expense of the
Seller, 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)(B) and (ix)(B) of the definition of "Mortgage
File". Each such assignment shall reflect that it should be returned by the
public recording office to the Trustee following recording or filing; provided
that in those instances where the public recording office retains the original
Assignment of Mortgage or assignment of Assignment of Leases, the Trustee shall
obtain therefrom at the expense of the Seller a certified copy of the recorded
original. The Trustee shall forward copies thereof to the Master Servicer. If
any such document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, the Trustee shall direct the
Seller pursuant to the applicable Mortgage Loan Purchase Agreement promptly to
prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall, at the expense of the Seller,
upon receipt thereof cause the same to be duly recorded or filed, as
appropriate.
(d) The Depositor shall deliver or cause the Seller to deliver to
the Master Servicer a copy of each Mortgage File to the extent that such copy
has not previously been delivered to the Master Servicer. The Depositor shall
deliver or cause the Seller to deliver such copy within a reasonable period
following any request by the Master Servicer. All relevant servicing documents
and records in the possession of the Depositor or the Seller 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
or its designee on or before the Closing Date and shall be held by the Master
Servicer or its designee on behalf of the Trustee in trust for the benefit of
the Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Trustee and the Master
Servicer on or before the Closing Date a copy of a fully executed counterpart of
the Mortgage Loan Purchase Agreement, as in full force and effect on the Closing
Date, which Mortgage Loan Purchase Agreement shall contain the representations
and warranties made by the Seller with respect to each Mortgage Loan as of the
Closing Date.
(f) Concurrently herewith, the Depositor has acquired the Mortgage
Loans from Seller. The Depositor (or the Seller on its behalf) will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
Mortgage Loans to the Trustee, endorsed as otherwise provided herein, 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, Seller is required under the Mortgage Loan
Purchase Agreement to deliver Assignments of Mortgages and assignments of
Assignments of Leases 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 Mortgage Loans shall be deemed to have been
transferred from Seller to the Depositor and the Mortgage Loans shall be deemed
to have been transferred from the Depositor to the Trustee on behalf of the
Certificateholders.
(g) The Master Servicer or the Sub-Servicer shall, as to each
Mortgage Loan that is secured by the interest of the related Mortgagor under a
ground lease, at its own expense, promptly (and in any event within the later of
45 days of (x) the Closing Date and (y) delivery to the Master Servicer or the
Sub-Servicer of a copy of the ground lease by the Seller) 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
or the Sub-Servicer.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold (i) the
documents constituting a part of the Mortgage Files delivered to it and (ii) the
REMIC I Regular Interests, in each case, in trust for the use and benefit of all
present and future Certificateholders.
Upon the 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
Seller, the Master Servicer, the Special Servicer and the Operating Adviser 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 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 (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), (vi), (viii), (ix)(A)
and (ix)(B) 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
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 as provided in clause (i) of the
definition of Mortgage File. 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. The Trustee shall deliver to the Master Servicer,
the Special Servicer and the Seller a copy of such Final Certification. Upon
request of any party hereto or the Rating Agencies, the Trustee shall provide a
current exception report.
Within 360 days after the Cut-Off Date, the Trustee shall provide a
confirmation of receipt of the assignments of Mortgage as described in the
definition of Mortgage File, with evidence of recording thereon, to the Master
Servicer, the Special Servicer and the 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.
The Trustee agrees, if requested by Seller, to use reasonable efforts to record
any unrecorded Assignments of Mortgage to the extent it has received such
documents (including effecting such recordation process through or cooperating
with the Seller), such recordation to be at the expense of the Seller. 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, 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 (i)(A) through (C) or (ii)(A) through (D) in the second
preceding paragraph, the Trustee shall promptly notify the Seller, the Master
Servicer, the Special Servicer, the Operating Adviser, and the Depositor in
writing and the Trustee shall request the 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 (i)(A) through (C) or (ii)(A) through (C) in the second 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 Trustee), or in any event in the case of a defect
under (D), the Trustee shall request the Seller to, and the Seller shall be
required promptly upon such request, either, at the Seller's election, (i)
substitute for the related Mortgage Loan, without recourse, a Qualifying
Substitute Mortgage Loan or Loans (which shall be approved by the Operating
Adviser), 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 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 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 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
the 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, including title to any property acquired in respect of such
Mortgage Loan or proceeds of any insurance policy with respect thereto.
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 SELLER'S 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 the Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgage
Properties as set forth in the Mortgage Loan Purchase Agreement, 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 (but in any event within three (3) Business Days) upon becoming
aware of any such Document Defect or Breach, the Trustee shall request that the
Seller, not later than 85 days from the 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 85-day period, and such Document Defect or Breach would not
cause the Mortgage Loan to be other than a "qualified mortgage" (as defined in
the Code), but the Seller is diligently attempting to effect such correction or
cure and the Seller reasonably believes that the cure can be effected within an
additional 85 day period, as certified by the Seller in an Officer's Certificate
delivered to the Trustee, then the cure period will be extended for 85 days.
If any such Document Defect or Breach cannot be corrected or cured
in all material respects within the above cure periods, the Seller will be
obligated, not later than the last day of such permitted cure period, to (i)
repurchase the affected Mortgage Loan from the Trust at the applicable Purchase
Price in accordance with the Mortgage Loan Purchase Agreement, or (ii) 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 Regulations Section 1.860G-2(f)), 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, the repurchase or substitution must occur within 85 days from the
earlier of the date the Seller discovered the Material Defect or Breach or the
date the Seller was notified of the Document Defect or Breach, and, in the case
of a substitution, in no event more than two years from the Closing Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the Trustee
shall cause the Seller to deliver to the Trustee for such Qualifying Substitute
Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related Assignment
of 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 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 Seller shall be entitled to
retain all amounts received in respect of such Deleted Mortgage Loan.
The Seller or the Depositor 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 Seller or the Depositor shall deliver or cause to be
delivered such amended Mortgage Loan Schedule to the Trustee, the Master
Servicer 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 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 transferred to the Trustee or the
Depositor) in the Seller or its designee to any Deleted Mortgage Loan (including
any property acquired in respect thereof or any insurance policy proceeds
relating thereto) substituted for pursuant to this Section 2.3.
In any month in which the 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 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 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 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 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.
(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 Seller, upon delivery to each
of them of a receipt executed by the 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 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, and
is also hereby authorized and empowered by the Trustee to, reconvey to the
Seller any deposits then held in an Escrow Account relating to the Mortgage Loan
being repurchased or substituted for. The Master Servicer shall indemnify the
Trustee for all costs, liabilities and expenses (including attorneys' 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 Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach.
(d) Upon the receipt of notice from either the borrower under any of
the Mortgage Loans identified on the Mortgage Loan Schedule as Loan Numbers 35
and 36 (Mendota I & II Loan) or as Loan Numbers 76, 77, 78 and 79 (Eckerd Drug
Loans) or the Depositor or the Master Servicer that any such borrower intends to
cause a release of a related Mortgaged Property and therefore a partial or
complete prepayment of the related Mortgage Loan, and that the related borrower
does not intend to pay the Prepayment Premium calculated in the related Mortgage
Note, the Seller is obligated under the Mortgage Loan Purchase Agreement to pay
the Seller Partial Prepayment Premium.
With respect to any Mortgage Loan that is "cross-defaulted" and
"cross-collateralized" with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed in the Mortgage Loan
Purchase Agreement while the Trustee continues to hold any other Mortgage Loan
that is "cross-collateralized" or "cross-defaulted" (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Trustee will cause
the Seller to take all action necessary to "uncross" such Repurchased Loan from
the other Cross-Collateralized Loans held by the Trustee. All other terms of the
Mortgage Loans shall remain in full force and effect, without any modification
thereof.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to the Master Servicer, the Special Servicer and the
Trustee (in its capacity as Trustee of the Trust) 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 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 the REMIC I
Regular Interests in exchange for the REMIC II Certificates.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES. 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.
(a) 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, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A and Class B 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 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 and Class R-II 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 each Certificate, 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 Trustee 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 Corporate Trust Office,
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 Record 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 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 deemed by the
acceptance or acquisition of such Certificate to have made the representations
set forth in Exhibit D-2A hereto. None of the Depositor, the Trustee, the Master
Servicer, the Special 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 Certificate. 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 Master Servicer,
the Special Servicer 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 an ERISA Restricted Certificate or Residual
Certificate or any interest therein shall be made (A) to any retirement plan or
other employee benefit plan or 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, Section 4975 of the Code or any applicable provision of federal, state or
local law ("Similar Law") materially similar to the foregoing provisions of
ERISA and 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 an ERISA Restricted 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 an ERISA Restricted
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,
Section 4975 of the Code or Similar Law or subject the Depositor, the Trustee,
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 ERISA Restricted Certificate 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 deemed by the acceptance
or acquisition of such Certificate to have made (and, with respect to any
transferee of such a Certificate that is a Definitive Certificate, shall be
required to deliver to the Certificate Registrar (or, in the case of an interest
in an ERISA Restricted 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) in
the case of an ERISA Restricted Certificate only, 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 95-60, or another
exemption from the prohibited transaction rules under ERISA by the U.S.
Department of Labor or applicable exemption under Similar Law.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (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 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 and that it has reviewed
the provisions of this Section 3.3(e) and agrees to be bound by
them. Furthermore, no transfer of any Ownership Interest in a
Noneconomic Residual Interest shall be made unless the Transferor
conducts, at the time of the transfer, a reasonable investigation of
the financial condition of the proposed Transferee and, as a result
of the investigation, the Transferor determines that the proposed
Transferee had historically paid its debts as they came due and
found no significant evidence that the proposed Transferee will not
continue to pay its debts as they come due in the future.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) 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.
(E) [Reserved]
(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, 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 Master Servicer, the Special
Servicer or the Certificate Registrar shall be under any liability
to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 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, 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 (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 (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 Trustee shall make available to the Internal Revenue Service and
those Persons specified by the REMIC Provisions, all information
necessary to compute any tax imposed as a result of the Transfer of
an Ownership Interest in a Residual Certificate to any Person who is
a Disqualified Organization, including the information described in
Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with
respect to the "excess inclusions" of such Residual Certificate. The
Master Servicer and the Special Servicer shall take all action to
cooperate with the Trustee in making such information available. The
Person holding such Ownership Interest shall be responsible for the
reasonable compensation of the Trustee for providing such
information.
The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Certificate Registrar, the Master Servicer, the Operating Adviser 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 either of REMIC I or REMIC II 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 Special Servicer, the Trustee
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 the Master Servicer, the
Special Servicer and the Depositor, upon written request, 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 Trustee, the Operating Adviser and any agent of the Master
Servicer, the Special Servicer, the Trustee 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 Trustee, the Operating Adviser
nor any agent of the Master Servicer, the Special Servicer, the Trustee 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 Trustee, the Operating Adviser 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 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 Trustee 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 DEFINITIVE CERTIFICATES AND BOOK-ENTRY CERTIFICATES.
(a) The Certificates (other than the Class R-I and R-II
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
and the Class R-I and R-II Certificates, upon original issuance, each shall be
issued in the form of Definitive Certificates. 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 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 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 Clearstream; 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 Clearstream (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 Clearstream 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 Clearstream, as applicable,
thereof). Euroclear or Clearstream, 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 Clearstream 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 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 Agent. 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 Trustee 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 Clearstream).
(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 Clearstream, 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 Clearstream, as applicable, in the form of an
Exchange Certification, 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 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 Trustee 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 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 or the Certificate Registrar shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, 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 and the Trustee
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 Trustee 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
except to the extent that the Master Servicer or the Trustee, 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 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. For purposes of the
notice described in the foregoing sentence, with respect to any Advance Report
Date, the "P&I Advance Amount" for each Mortgage Loan shall be determined
without regard to any collections that might be received after the related
Determination Date. Notwithstanding the foregoing, for the Post Determination
Date Mortgage Loans, the Master Servicer hereby agrees that, if the applicable
Scheduled Payment has not been received on or before the Master Servicer
Remittance Date (regardless of the Due Date or expiration of grace periods for
such Scheduled Payment), the Master Servicer shall make the applicable P&I
Advance in respect of such Scheduled Payment; provided, however, the Master
Servicer's right to earn interest on such P&I Advance is limited as provided in
Section 4.5 hereof. 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 and the Certificateholders. The Special Servicer shall not be
required to make P&I Advances under this Agreement. If the Master Servicer fails
to make a P&I Advance, it shall promptly notify the Trustee of such failure.
(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 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 (if the Trustee has knowledge that such
Advance is required to be made) shall make Servicing Advances to the extent
provided in this Agreement, except to the extent that the Master Servicer or the
Trustee, 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 and the
Certificateholders. The Special Servicer shall not be required to make Servicing
Advances under this Agreement. If the Master Servicer fails to make a Servicing
Advance, it shall promptly notify the Trustee in writing of such failure.
SECTION 4.3 ADVANCES BY THE TRUSTEE.
(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 not later than 10:00 a.m. (New York City time) on the
related Distribution Date unless the Trustee determines that such P&I Advance,
if made, would be a Nonrecoverable Advance.
(b) 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 in accordance with Section
4.2, but in any event, not later than five Business Days after notice thereof,
unless the Master Servicer has failed to make and the Trustee so makes a
determination that such Servicing Advance, if made, would be a Nonrecoverable
Advance.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY. If the Master Servicer
determines at any time, in its sole discretion, exercised in accordance with the
Servicing Standard, 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, the Special
Servicer, the Operating Adviser and the Rating Agencies by the Business Day
prior to the Distribution Date. Such Officer's Certificate 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 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 determines at any time that any portion of an Advance previously made or
a portion of a proposed Advance that the Trustee 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 delivered to the Depositor, the Master Servicer, the
Special Servicer and the Operating Adviser similar to the Officer's Certificate
of the Master Servicer described in the prior sentence. The Trustee 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 or the Trustee 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 accordance with the Servicing
Standard 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 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 or the Trustee's own funds shall accrue interest on a
daily basis, at a per annum rate equal to the Advance Rate, from and including
the date such Advance was made to but not including the date on which such
Advance has been reimbursed. Notwithstanding the foregoing, with respect to P&I
Advances made on the Post Determination Date Mortgage Loans with respect to
which the Scheduled Payment was not received by the Master Servicer Remittance
Date, interest on any P&I Advance shall accrue commencing on the day succeeding
the date of the expiration of a grace period with respect to the related
Mortgage Loan; provided, that if such Advance is not reimbursed from collections
received by the related Mortgagor by the end of the applicable grace period,
Advance Interest shall accrue from the date such Advance was made. 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
Section 4.6. The Master Servicer and the Special Servicer shall use efforts
consistent with the Servicing Standard to collect (but shall have no further
obligation to collect), with respect to the Mortgage Loans that are not
Specially Serviced Mortgage Loans and Specially Serviced Mortgage Loans,
respectively, Late Fees and default interest from the Mortgagor in an amount
sufficient to pay Advance Interest. The Master Servicer shall be entitled to
retain default interest and 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 such default interest or Late Fees) as additional
servicing compensation to the extent such default interest and Late Fees exceed
Advance Interest. The Special Servicer, with respect to any Specially Serviced
Mortgage Loan, shall (i) pay from any related default interest and Late Fees
outstanding and unpaid Advance Interest to the Master Servicer or the Trustee,
as applicable, and (ii) retain any remaining portion of such default interest
and 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 Section 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 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 (ii) the Master Servicer for any Advances outstanding to the
Master Servicer with respect to any of such Mortgage Loans, Specially Serviced
Mortgage Loans or REO Property, 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 or the Trustee 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 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
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) Advance Interest will be paid to the Trustee and/or the Master
Servicer (in accordance with the priorities specified in the preceding
paragraph) first from Late Fees and default interest collected with respect to
the Mortgage Loans as to which the related Advances were made, and then from
Excess Liquidation Proceeds.
(d) Amounts applied to reimburse Advances shall first be applied to
reduce Advance Interest thereon that was not paid from amounts specified in the
preceding paragraph (c) and then to reduce the outstanding amount of such
Advances.
(e) 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 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 determines that such Servicing Advance, if
made, would be a Nonrecoverable Advance and the Master Servicer does not make
such payment, the Special Servicer shall notify the Master Servicer and Trustee
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 and the Trustee shall have no obligation to verify
the amount payable to the Special Servicer pursuant to this Section 4.6(e) and
circumstances surrounding the notice delivered by the Special Servicer pursuant
to this Section 4.6(e).
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 "CapMark Services, L.P., as Master Servicer for Xxxxx Fargo Bank
Minnesota, N.A., as Trustee for the Holders of Xxxxxx Xxxxxxx Xxxx Xxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2001-PPM"
(the "Certificate Account").
(b) On or prior to the date the Master Servicer shall first deposit
funds in a Certificate Account the Master Servicer shall give to 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 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. Separate ledger entries shall be
maintained in respect of amounts received pursuant to the Seller Partial
Prepayment Premium Obligation, which shall be an asset of the Grantor Trust.
(c) The Master Servicer shall deposit, or cause to be deposited,
into the Certificate Account on the Business Day following receipt and
identification, 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 (I) may retain amounts otherwise payable to the Master Servicer as
provided in Section 5.2(a) rather than deposit them into the Certificate Account
and (II) shall, rather than deposit them in the Certificate Account, directly
remit to the Sub-Servicer the Sub-Servicing Fees payable as provided in the
related Sub-Servicer Agreement (unless already retained by the Sub-Servicer):
(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: 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);
(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
and Seller Partial Prepayment Premiums, required to be deposited in
the Certificate Account pursuant to this Agreement, including
Purchase Proceeds of any Mortgage Loans repurchased by Seller or
substitution shortfall amounts (as described in the fifth paragraph
of Section 2.3(a)) paid by Seller in connection with the
substitution of any Qualifying Substitute Mortgage Loans. Amounts
attributable to the Seller Partial Prepayment Premium Obligation
will be assets of the Grantor Trust.
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) Reserved.
(e) Funds in the Certificate 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 "CapMark Services, L.P., in
trust for Xxxxx Fargo Bank Minnesota, N.A., as Trustee for the Holders of the
Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 0000-XXX." Xxxx of the Depositor, the Mortgagors 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) in the
Certificate Account out of its own funds immediately as realized. If the Master
Servicer deposits in any Certificate Account, any amount not required to be
deposited therein, it may at any time withdraw such amount from the Certificate
Account any provision herein to the contrary notwithstanding.
(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 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 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, the terms of the
related Mortgage Loans and Section 8.3(e) hereof, and the Master Servicer will
be entitled to hold any Escrow Accounts relating to the Mortgage Loans that it
services in accordance with the requirements set forth in Section 8.3(e).
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT.
(a) The Master Servicer shall, from time to time, make withdrawals
from the Certificate Account and remit them by wire transfer prior to 2:00 p.m.,
New York City time, 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 Trustee from time to time of amounts payable to the
Trustee from the Certificate Account pursuant to clauses (ii), (iii), (v), (vi),
(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), (vii) and (ix) 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, assumption fees relating to Mortgage Loans which are not
Specially Servicing Mortgage Loans payable under Section 8.7(a), extension
fees payable under Section 8.10 or other fees payable to the Master
Servicer hereunder and (B) directly to the Special Servicer, Modification
Fees relating to Specially Serviced Mortgage Loans, and assumption fees
relating to Specially Serviced Mortgage Loans and Late Fees (in excess of
Advance Interest) and other fees collected on Specially Serviced Mortgage
Loans, in each case to the extent provided for herein from funds paid by
the applicable Mortgagor;
(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 Trustee and itself, in
that order, as provided in, and subject to, Article IV hereof, for any
Servicing Advances (and Advance Interest thereon not paid in accordance
with Section 4.6(c)) 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 was recovered from
the applicable Mortgage Loan or REO Property), to reimburse the Trustee
and itself, in that order, in accordance with Article IV hereof, for any
P&I Advances (and Advance Interest thereon not paid in accordance with
Section 4.6(c)) previously made by it with respect to the related Mortgage
Loan or REO Property and not previously reimbursed;
(iv) Servicing Fees and Special Servicer Compensation: to pay to
itself the Master Servicing Fee, to pay to the Special Servicer the
Special Servicing Fee, in each case, subject to reduction for any
Compensating Interest and to pay to the related Sub-Servicer the
Sub-Servicing Fees (subject to reduction for any payment made pursuant to
Section 5.1(d));
(v) Trustee Fee: to pay to the Distribution Account for
withdrawal by the Trustee, the Trustee 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 other than amounts 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
(subject to Section 4.6(c)); 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, Principal
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; provided, however,
as to Post Determination Date Mortgage Loans, sums received by the Master
Servicer with respect to any Due Date but on or after the related Master
Servicer Remittance Date, shall be applied by the Master Servicer to xxxxxxxxx
X&X Advances made by the Master Servicer with respect to such Post Determination
Date Mortgage Loans on such Master Servicer Remittance Date.
SECTION 5.3 DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT.
(a) The Trustee, shall establish (with respect to clause (i), on or
prior to the Closing Date, and with respect to clause (ii), on or prior to the
date the Trustee determines is necessary) and maintain in its name, (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: "Xxxxx
Fargo Bank Minnesota, N.A., as Trustee, in trust for the benefit of the Holders
of Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-PPM, 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: "Xxxxx Fargo Bank Minnesota, N.A., as Trustee, in trust for the benefit
of the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-PPM, 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 Trustee held under this Agreement.
(b) The Trustee 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 and the Trustee; provided, however, all Excess
Liquidation Proceeds identified to the Trustee by the Master Servicer shall be
deposited into the Reserve Account. 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. The Trustee 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
Sub-Servicer, the Special Servicer and the Trustee (including the
Trustee'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 6.3; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
SECTION 5.4 TRUSTEE REPORTS.
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Master Servicer and the Special
Servicer and delivered to the Trustee by the Master Servicer (no later than
2:00 p.m., New York time on the Report Date), the Trustee shall make available
to any interested party via its internet website initially located at
"xxx.xxxxxxx.xxx/xxxx" (the "Trustee's Website") (or such other medium as the
Depositor shall reasonably request, the incremental cost of which shall be paid
in advance by the recipient thereof), or by first class mail upon request, (i)
the Monthly Certificateholder's Report (substantially in the form of Exhibit M),
(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 which report may
be included as part of the Monthly Certificateholders Report, (iii) the Loan
Periodic Update File, Loan Setup File, Loan Financial File, Bond Level File and
the Collateral Summary File, (iv) the Unrestricted Servicer Reports, and (v) as
a convenience for interested parties (and not in furtherance of the distribution
thereof under the securities laws), the Prospectus Supplement, the Prospectus
and this Agreement.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicer and the
Special Servicer and delivered to the Trustee in accordance herewith, the
Trustee shall make available via the Trustee's Website, on a restricted basis,
(i) the Restricted Servicer Reports, and (ii) the Property File. The Trustee
shall provide access to such restricted reports, upon request, to each
Certificateholder, each of the parties to this Agreement, each of the Rating
Agencies, each of the Underwriters, the Operating Adviser, the Placement Agent
and any Certificate Owner upon receipt (which may be in electronic form) from
such person of an investor certification, the form of which is attached hereto
as Exhibit G, and any other person upon the direction of the Depositor, the
Placement Agent or either Underwriter. For assistance with the above-mentioned
Trustee services, Certificateholders or any party hereto may initially call
000-000-0000.
The Delinquent Loan Status Report, the Historical Loan Modification
Report, the Historical Liquidation Report and the REO Status Report are referred
to herein as the "Unrestricted Servicer Reports" and the Servicer Watch List,
the NOI Adjustment Worksheet, the Comparative Financial Status Report, and the
Operating Statement Analysis are referenced to herein as the "Restricted
Servicer Reports".
The Trustee makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on the Trustee's Website and assumes no responsibility therefor. The
Trustee shall be entitled to conclusively rely on any information provided to it
by the Master Servicer or the Special Servicer and shall have no obligation to
verify such information and the Trustee may disclaim responsibility for any
information distributed by the Trustee for which it is not the original source.
In connection with providing access to the Trustee's Website, the Trustee, may
require registration and the acceptance of a disclaimer. The Trustee shall not
be liable for the dissemination of information in accordance with this
Agreement; provided that this sentence shall not in any way limit the liability
the Trustee may otherwise have in the 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 Trustee 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 Trustee shall be entitled to be reimbursed by
such Certificateholder for the Trustee's actual expenses incurred in providing
such reports and access.
(c) Upon written request, the Trustee shall send to each Person who
at any time during the calendar year was a Certificateholder of record,
customary information as the Trustee xxxxx xxx be necessary or desirable for
such Holders to prepare their federal income tax returns, to the extent that
such information has not previously been furnished as required by the provisions
of the Code from time to time in force.
(d) [Reserved.]
(e) The Trustee shall afford the Rating Agencies, the Depositor, the
Master Servicer, the Special Servicer, the Operating Adviser, any
Certificateholder, prospective Certificate Owner or any Person reasonably
designated by the Placement Agent, or either 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 Trustee. Any transmittal of
reports, records, documentation or other matters by the Trustee to any Person
other than the Master Servicer, the Special Servicer, the Rating Agencies, the
Operating Adviser or the Depositor may be accompanied by a letter from the
Trustee 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 Xxxx Xxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series
2001-PPM 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."
(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 Trustee upon request; provided, however, that the Trustee shall be
permitted to require payment by the requesting party (other than the Depositor,
the Master Servicer, the Special Servicer, the Operating Adviser, the Placement
Agent or either Underwriter or any Rating Agency) of a sum sufficient to cover
the reasonable expenses actually incurred by the Trustee of providing access or
copies (including electronic or digital copies) of any such information
requested in accordance with the preceding sentence.
(g) The Trustee shall make available at its Corporate Trust Office
(either in physical or electronic form), during normal business hours, upon
reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any Prospective Investor, each Underwriter, each Rating
Agency, the Special Servicer and the Depositor, originals or copies of, among
other things, the following items: (i) the most recent property inspection
reports in the possession of the Trustee in respect of each Mortgaged Property
and REO Property; (ii) the most recent Mortgaged Property/REO Property annual
operating statement and rent roll, if any, collected or otherwise obtained by or
on behalf of the Master Servicer or the Special Servicer and delivered to the
Trustee, (iii) any Phase I Environmental Report or engineering report prepared
or appraisals performed in respect of each Mortgaged Property; provided,
however, that the Trustee shall be permitted to require payment by the
requesting party (other than either Rating Agency) of a sum sufficient to cover
the reasonable expenses actually incurred by the Trustee of providing access or
copies (including electronic or digital copies) of any such information
reasonably requested in accordance with the preceding sentence.
SECTION 5.5 TRUSTEE TAX REPORTS. The Trustee (or, to the extent
required by the Code or Treasury Regulations, the Tax Matters Person) 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 Agreement, the Trustee shall provide or
cause to be provided (i) to the Internal Revenue Service or other Persons
(including, but not limited to, the Transferor of a Class R-I or Class R-II
Certificate, to a Disqualified Organization or to an agent that has acquired a
Class R-I or Class R-II 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 or Class R-II 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 Trustee 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 Trustee 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, including any related REO Property, in order for the Master Servicer to
comply with its obligations under this Section 5.5. The Trustee 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.
SECTION 5.6 ACTUAL/360 ACCOUNT.
(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 "CapMark Services, L.P., as Master Servicer for Xxxxx Fargo Bank
Minnesota, N.A., as Trustee for the Holders of Xxxxxx Xxxxxxx Xxxx Xxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2001-PPM,
Actual/360 Account" (the "Actual/360 Account"). The Master Servicer shall give
to 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 Actual/360 Account to hold such
account in the name of the Master Servicer as provided in this Section 5.6,
subject to the Master Servicer's right to direct payments and investments and
its rights of withdrawal under this Agreement. The Actual/360 Account shall be
an "outside reserve fund" within the meaning of the REMIC Provisions and shall
be beneficially owned 50% by the Depositor and 50% by the Seller, which shall be
taxable on their respective shares of all income or gain with respect thereto,
and who shall be deemed to pay such amounts to the Master Servicer as additional
servicing compensation. Any amounts reimbursed from the Trust Fund to the
Actual/360 Account shall be treated as reimbursed to the Depositor and the
Seller as beneficial owners thereof.
(b) The Master Servicer shall deposit, or cause to be deposited,
into the Actual/360 Account on the Business Day following receipt and
identification, the Actual/360 Amount. Funds in the Actual/360 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 "CapMark
Services, L.P., in trust for Xxxxx Fargo Bank Minnesota, N.A., as Trustee for
the Holders of the Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 0000-XXX." Xxxx of the Depositor, the
Seller, the Mortgagors or the Trustee shall be liable for any loss incurred on
such Eligible Investments.
(c) 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) in the
Actual/360 Account out of its own funds immediately as realized. If the Master
Servicer deposits in any Actual/360 Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Actual/360
Account any provision herein to the contrary notwithstanding.
(d) 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 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 Actual/360 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.
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 Trustee shall (1) first, withdraw from the Distribution Account and
pay to itself, 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, the Sub-Servicers and Special Servicer any unpaid servicing
compensation or other amounts currently required to be paid pursuant to this
Agreement (to the extent not previously retained or 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 Trustee on or prior to the
related Record Date (or upon standing instructions given to the Trustee on the
Closing Date or prior to any Record Date, which instructions may be revoked at
any time thereafter upon written notice to the Trustee prior to 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 Trustee 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 Trustee 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 Trustee shall be deemed to
distribute to itself, on behalf of the Trust, as Holder of the REMIC I Regular
Interests, an amount equal to the Available Distribution Amount 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, Class A-3 Certificates and
Class X Certificates to REMIC I Regular Interest A-1, REMIC I Regular
Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular Interest B,
REMIC I Regular Interest C, REMIC I Regular Interest D, REMIC I Regular
Interest E, REMIC I Regular Interest F, REMIC I Regular Interest G, REMIC
I Regular Interest H, REMIC I Regular Interest J, REMIC I Regular Interest
K, REMIC I Regular Interest L, REMIC I Regular Interest M, REMIC I Regular
Interest N and REMIC I Regular Interest O divided among such REMIC I
Regular Interests in proportion to (A) in the case of the REMIC I Regular
Interest A-1, REMIC I Regular Interest A-2 and REMIC I Regular Interest
A-3, the Accrued Certificate Interest for such Distribution Date and (B)
in the case of REMIC I Regular Interest B, REMIC I Regular Interest C,
REMIC I Regular Interest D, REMIC I Regular Interest E, REMIC I Regular
Interest F, REMIC I Regular Interest G, REMIC I Regular Interest H, REMIC
I Regular Interest J, REMIC I Regular Interest K, REMIC I Regular Interest
L, REMIC I Regular Interest M, REMIC I Regular Interest N and REMIC I
Regular Interest O, the product of one-twelfth of the Certificate Balance
of such Interest and the related Class X Strip Rate (if any);
(ii) to REMIC I Regular Interest A-1, REMIC I Regular Interest
A-2 and REMIC I Regular Interest A-3, in reduction of the Certificate
Balances thereof, in an amount up to the Principal Distribution Amount for
such Distribution Date: (A) first, to the REMIC I Regular Interest A-1 and
REMIC I Regular Interest A-2, pro rata (with the REMIC I Regular Interest
A-1 allocation based upon the sum of the Certificate Balances of REMIC I
Regular Interest A-1 and REMIC I Regular Interest A-3 divided by the sum
of the Certificate Balances of REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2 and REMIC I Regular Interest A-3, and the REMIC I
Regular Interest A-2 allocation based upon the REMIC I Regular Interest
A-2 Certificate Balance divided by the sum of the outstanding Certificate
Balances of REMIC I Regular Interest A-1, REMIC I Regular Interest A-2 and
REMIC I Regular Interest A-3), until the Certificate Balance of REMIC I
Regular Interest A-1 is reduced to zero and (B) then, to REMIC I Regular
Interest A-2 and REMIC I Regular Interest A-3, pro rata, until the
Certificate Balances of REMIC I Regular Interest A-2 and REMIC I Regular
Interest A-3 are reduced to zero;
(iii) to REMIC I Regular Interest A-1, REMIC I Regular Interest
A-2 and REMIC I Regular Interest A-3, REMIC I Regular Interest B, REMIC I
Regular Interest C, REMIC I Regular Interest D, REMIC I Regular Interest
E, REMIC I Regular Interest F, REMIC I Regular Interest G, REMIC I Regular
Interest H, REMIC Regular Interest J, REMIC I Regular Interest K, REMIC I
Regular Interest L, REMIC I Regular Interest M, REMIC I Regular Interest N
and REMIC I Regular Interest O, pro rata, on the basis of their respective
entitlements to reimbursement described in this clause (iii), to reimburse
any Realized Losses previously allocated to REMIC I Regular Interest A-1,
REMIC I Regular Interest A-2 and REMIC I Regular Interest A-3, REMIC I
Regular Interest B, REMIC I Regular Interest C, REMIC I Regular Interest
D, REMIC I Regular Interest E, REMIC I Regular Interest F, REMIC I Regular
Interest G, REMIC I Regular Interest H, REMIC I Regular Interest J, REMIC
I Regular Interest K, REMIC I Regular Interest L and REMIC I Regular
Interest M, REMIC I Regular Interest N and REMIC I 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;
(iv) to REMIC I Regular Interest A-1, REMIC I Regular Interest
A-2 and REMIC I Regular Interest A-3, pro rata, 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;
(v) to REMIC I 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 REMIC I
Regular Interest A-1, REMIC I Regular Interest A-2 and REMIC I Regular
Interest A-3, to REMIC I Regular Interest B, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed
to be distributed to REMIC I Regular Interest A), until the Certificate
Balance of REMIC I Regular Interest B has been reduced to zero;
(vii) to REMIC I 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 REMIC I 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 REMIC I
Regular Interest B, to REMIC I Regular Interest C, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3 and REMIC I Regular
Interest B), until the Certificate Balance of REMIC I Regular Interest C
has been reduced to zero;
(x) to REMIC I 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 REMIC I 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 REMIC I
Regular Interest C, to REMIC I Regular Interest D, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular
Interest B and REMIC I Regular Interest C), until the Certificate Balance
of REMIC I Regular Interest D has been reduced to zero;
(xiii) to REMIC I 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 REMIC I 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;
(xv) upon payment in full of the Certificate Balance of REMIC I
Regular Interest D, to REMIC I Regular Interest E, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular
Interest B, REMIC Regular Interest C and REMIC I Regular Interest D),
until the Certificate Balance of REMIC I Regular Interest E has been
reduced to zero;
(xvi) to REMIC I 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 REMIC I 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 REMIC
I Regular Interest E, to REMIC I Regular Interest F, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular
Interest B, REMIC Regular Interest C, REMIC I Regular Interest D and REMIC
I Regular Interest E), until the Certificate Balance of REMIC I Regular
Interest F has been reduced to zero;
(xix) to REMIC I 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 REMIC I 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 REMIC I
Regular Interest F, to REMIC I Regular Interest G, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular
Interest B, REMIC Regular Interest C, REMIC I Regular Interest D, REMIC I
Regular Interest E and REMIC I Regular Interest F), until the Certificate
Balance of REMIC I Regular Interest G has been reduced to zero;
(xxii) to REMIC I 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 REMIC I 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 REMIC I
Regular Interest G, to REMIC I Regular Interest H, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular
Interest B, REMIC Regular Interest C, REMIC I Regular Interest D, REMIC I
Regular Interest E, REMIC I Regular Interest F and REMIC I Regular
Interest G), until the Certificate Balance of REMIC I Regular Interest H
has been reduced to zero;
(xxv) to REMIC I 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 REMIC I 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 REMIC
I Regular Interest H, to REMIC I Regular Interest J, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular
Interest B, REMIC Regular Interest C, REMIC I Regular Interest D, REMIC I
Regular Interest E, REMIC I Regular Interest F, REMIC I Regular Interest G
and REMIC I Regular Interest H), until the Certificate Balance of REMIC I
Regular Interest J has been reduced to zero;
(xxviii) to REMIC I 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 REMIC I 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 REMIC I
Regular Interest J to REMIC I Regular Interest K, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular
Interest B, REMIC Regular Interest C, REMIC I Regular Interest D, REMIC I
Regular Interest E, REMIC I Regular Interest F, REMIC I Regular Interest
G, REMIC I Regular Interest H and REMIC I Regular Interest J), until the
Certificate Balance of REMIC I Regular Interest K has been reduced to
zero;
(xxxi) to REMIC I 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 REMIC I 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;
(xxxiii) upon payment in full of the Certificate Balance of REMIC
I Regular Interest K to REMIC I Regular Interest L, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular
Interest B, REMIC Regular Interest C, REMIC I Regular Interest D, REMIC I
Regular Interest E, REMIC I Regular Interest F, REMIC I Regular Interest
G, REMIC I Regular Interest H, REMIC I Regular Interest J and REMIC I
Regular Interest K), until the Certificate Balance of REMIC I Regular
Interest L has been reduced to zero;
(xxxiv) to REMIC I 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 REMIC I 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 REMIC
I Regular Interest L to REMIC I Regular Interest M, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular
Interest B, REMIC I Regular Interest C, REMIC I Regular Interest D, REMIC
I Regular Interest E, REMIC I Regular Interest F, REMIC I Regular Interest
G, REMIC I Regular Interest H, REMIC I Regular Interest J, REMIC I Regular
Interest K and REMIC I Regular Interest L), until the Certificate Balance
of REMIC I Regular Interest M has been reduced to zero;
(xxxvii) to REMIC I 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; and
(xxxviii) to REMIC I 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 REMIC
I Regular Interest M, to REMIC I Regular Interest N, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular
Interest B, REMIC I Regular Interest C, REMIC I Regular Interest D, REMIC
I Regular Interest E, REMIC I Regular Interest F, REMIC I Regular Interest
G, REMIC I Regular Interest H, REMIC I Regular Interest J, REMIC I Regular
Interest K, REMIC I Regular Interest L and REMIC I Regular Interest M),
until the Certificate Balance of REMIC I Regular Interest N has been
reduced to zero;
(xl) to REMIC I 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;
(xli) to REMIC I 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 REMIC I
Regular Interest N, to REMIC I Regular Interest O, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular
Interest B, REMIC I Regular Interest C, REMIC I Regular Interest D, REMIC
I Regular Interest E, REMIC I Regular Interest F, REMIC I Regular Interest
G, REMIC I Regular Interest H, REMIC I Regular Interest J, REMIC I Regular
Interest K, REMIC I Regular Interest L, REMIC I Regular Interest M and
REMIC I Regular Interest N), until the Certificate Balance of REMIC I
Regular Interest O has been reduced to zero;
(xliii) to REMIC I Regular Interest O, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Loses compounded monthly at one-twelfth the applicable
Pass-Through Rate; and
(xliv) thereafter, to the Class R-I Certificateholders at such
time as the Certificate Balances of all Classes of REMIC I Regular
Interests have been reduced to zero, and Realized Losses previously
allocated thereto have been reimbursed to the Holders of the REMIC I
Regular Interests, any amounts remaining.
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 Interests have been deemed reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to Certificate
Balances of all Classes of Subordinate Interests, the Principal Distribution
Amount will be distributed, first, to the Trustee as Holder of the REMIC I
Regular Interest A-1, REMIC I Regular Interest A-2 and REMIC I Regular Interest
A-3, 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 Trustee as Holder of the
REMIC I Regular Interest A-1, REMIC I Regular Interest A-2 and REMIC I Regular
Interest A-3, pro rata, based on the respective amounts of unreimbursed Realized
Losses previously deemed allocated to each such Class.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account the amount deemed distributed from REMIC I to REMIC II in
respect of the REMIC I Regular Interests pursuant to Section 6.2 and shall
distribute such amount in the following amounts and order of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 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, Class A-2 and Class A-3
Certificates, in reduction of the Certificate Balances thereof, in an
amount up to the Principal Distribution Amount for such Distribution Date:
(A) first, to the Class A-1 and Class A-2 Certificates pro rata (with the
Class A-1 allocation based upon the sum of the Aggregate Certificate
Balances of the Class A-1 and Class A-3 Certificates divided by the sum of
the Aggregate Certificate Balances of the Class A-1, Class A-2 and Class
A-3 Certificates, and the Class A-2 allocation based upon the Class A-2
Aggregate Certificate Balance divided by the outstanding Aggregate
Certificate Balances of the Class A-1, Class A-2 and Class A-3
Certificates), until the Aggregate Certificate Balance of the Class A-1
Certificates is reduced to zero and (B) then, to the Class A-2 and Class
A-3 Certificates pro rata until the Aggregate Certificate Balance of the
Class A-2 and Class A-3 Certificates is reduced to zero;
(iii) to the Holders of the Class A Certificates and Class X
Certificates, pro rata, to reimburse any Realized Losses previously
allocated thereto plus interest on such Realized Losses compounded monthly
at one-twelfth the applicable Pass-Through Rate;
(iv) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(v) upon payment in full of the Aggregate Certificate Balances of
the Class A-1, Class A-2 and Class A-3 Certificates, to the Holders of the
Class B Certificates, in reduction of the Aggregate Certificate Balance of
the Class B Certificates, in an amount up to the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A Certificates), until the
Aggregate Certificate Balance of the Class B Certificates has been reduced
to zero;
(vi) 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);
(vii) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(viii) upon payment in full of the Aggregate 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 Aggregate Certificate Balance of the Class C
Certificates has been reduced to zero;
(ix) 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;
(x) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xi) upon payment in full of the Aggregate 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 Aggregate Certificate Balance of the
Class D Certificates has been reduced to zero;
(xii) 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;
(xiii) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xiv) upon payment in full of the Aggregate 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, Class B,
Class C and Class D Certificates), until the Aggregate Certificate Balance
of the Class E Certificates has been reduced to zero;
(xv) 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;
(xvi) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xvii) upon payment in full of the Aggregate 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 Aggregate
Certificate Balance of the Class F Certificates has been reduced to zero;
(xviii) 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;
(xix) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xx) upon payment in full of the Aggregate 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 Aggregate
Certificate Balance of the Class G Certificates has been reduced to zero;
(xxi) 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;
(xxii) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiii) upon payment in full of the Aggregate 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
Aggregate Certificate Balance of the Class H Certificates has been reduced
to zero;
(xxiv) 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;
(xxv) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution date;
(xxvi) upon payment in full of the Aggregate 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 Aggregate Certificate Balance of the Class J Certificates has
been reduced to zero;
(xxvii) 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;
(xxviii) to the Holders of the Class K Certificates,
Distributable Certificate Interest for such Distributable Date;
(xxix) upon payment in full of the Aggregate 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 Aggregate Certificate Balance of the Class K
Certificates has been reduced to zero;
(xxx) 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;
(xxxi) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distributable Date;
(xxxii) upon payment in full of the Aggregate 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 Aggregate Certificate Balance of the Class L
Certificates has been reduced to zero;
(xxxiii) 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;
(xxxiv) to the Holders of the Class M Certificates, Distributable
Certificate Interest for such Distributable Date;
(xxxv) upon payment in full of the Aggregate 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 Aggregate Certificate Balance of the
Class M Certificates has been reduced to zero;
(xxxvi) 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;
(xxxvii) to the Holders of the Class N Certificates,
Distributable Certificate Interest for such Distribution date;
(xxxviii) upon payment in full of the Aggregate 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 a 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 L and Class M Certificates), until the Aggregate Certificate Balance
of the Class N Certificates has been reduced to zero;
(xxxix) 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;
(xl) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distributable Date;
(xli) upon payment in full of the Aggregate 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 Aggregate
Certificate Balance of the Class K Certificates has been reduced to zero;
(xlii) 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
(xliii) to the Holders of the Class R-II 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 Aggregate 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 the
Aggregate Certificate Balances of all Classes of Subordinate Certificates, the
Principal Distribution Amount will be distributed, first, to the Holders of the
Class A-1, Class A-2 and Class A-3 Certificates, pro rata, based on their
respective Aggregate 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, Class A-2 and
Class A-3 Certificates, pro rata, based on the respective amounts of
unreimbursed Realized Losses previously allocated to each such Class.
The parties hereto acknowledge that a Realized Loss allocated to a
Principal Balance Certificate on any date shall reduce the Notional Amount of
the Class X Certificates.
(b) On each Distribution Date, the Trustee shall withdraw amounts in
the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
(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 previously allocated to them (to the extent
not reimbursed pursuant to Section 6.3(a)); 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 holder of the Class R-1
Certificate.
SECTION 6.4 RESERVED.
SECTION 6.5 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability.
(a) REMIC I. On each Distribution Date, all Realized Losses and
Expense Losses on the REMIC Regular Certificates for such Distribution Date (or
for prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the Corresponding REMIC I 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(b). Realized Losses allocated to the Class X
Certificates shall be allocated among REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular Interest B,
REMIC I Regular Interest C, REMIC I Regular Interest D, REMIC I Regular Interest
E, REMIC I Regular Interest F, REMIC I Regular Interest G, REMIC I Regular
Interest H, REMIC I Regular Interest J, REMIC I Regular Interest K, REMIC I
Regular Interest L, REMIC I Regular Interest M, REMIC I Regular Interest N and
REMIC I Regular Interest O, pro rata based on the product of the Certificate
Balance of such REMIC I Regular Interest and the Class X Strip Rate (if any)
applicable to the Corresponding Class of Certificates.
(b) REMIC II. On each Distribution Date, all Realized Losses and
Expense Losses 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, Class A-3 Certificates
and, only with respect to Realized Interest Losses, Class X Certificates, pro
rata, in each case reducing (A) the Certificate Balance of such Class until such
Certificate Balance is reduced to zero (pro rata 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 I 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 Regular Certificates, 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, the amount of any Net Aggregate
Prepayment Interest Shortfalls on the REMIC Regular Certificates in the
aggregate shall be allocated to each Class of Certificates, pro rata, in
proportion to the amount of Accrued 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 Master 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 Master 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 Master 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 $2,000,000 or (B) at the option of the Special
Servicer, if such Principal Balance is less than or equal to $2,000,000, 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 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 60 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. ss. 225.62 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 or, to the extent collections from such related Mortgage
Loan or Mortgaged Property does not cover the expense, such unpaid expense shall
be, subject to Section 4.4 hereof, advanced by the Master Servicer at the
request of the Special Servicer pursuant to Section 4.6 in which event it shall
be treated as a Servicing Advance. The Master Servicer, based on the Appraisal
or internal valuation provided to it by the Special Servicer, shall calculate
any Appraisal Reduction. Notwithstanding the foregoing, without limiting the
obligation to order and obtain an Appraisal or internal valuation, in the event
that the Appraisal or internal valuation, as applicable, has not been delivered
by the Special Servicer to the Master Servicer by the date on which an Appraisal
Event occurs (or, in the case of an Appraisal Event described in clause (ii) of
the definition thereof, within 60 days after receipt of the notice described in
such clause (ii)), the amount of the Appraisal Reduction will be deemed to be an
amount equal to 25% of the current Principal Balance of the related Mortgage
Loan until the Appraisal or internal valuation is received at which point the
Appraisal Reduction shall be re-calculated. 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
Trustee shall comply with all federal withholding requirements with respect to
payments to Certificateholders of interest, original issue discount, or other
amounts that the Trustee 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 Trustee
withholds any amount from payments made to any Certificateholder pursuant to
federal withholding requirements, the Trustee shall indicate to such
Certificateholder the amount withheld.
SECTION 6.10 PREPAYMENT PREMIUMS. Any Prepayment Premium and Seller
Partial Prepayment Premiums collected with respect to a Mortgage Loan during any
particular Collection Period will be deemed distributed by the Trustee on the
following Distribution Date as follows: the Trustee shall be deemed to
distribute to itself, as holder of the REMIC I Regular Interests any Prepayment
Premiums to the REMIC I Regular Interest then entitled to distributions of
principal from the Principal Distribution Amount (or, if more than one Class of
REMIC I Regular Interests is then entitled to distributions of principal from
the Principal Distribution Amount, such Prepayment Premiums shall be deemed
distributed among such Classes pro rata in accordance with the relevant amounts
of entitlements to distributions of principal). Following such deemed
distributions, 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, and the Trustee will pay to such Holder(s), an amount equal to, in
the case of each such Class, the product of (A) a fraction, the numerator of
which is the amount distributed as principal to the holders of that class on
that Distribution Date, and the denominator of which is the total amount
distributed as principal to the holders of all Classes of Certificates on that
Distribution Date, (B) the Base Interest Fraction for the related Principal
Prepayment and that Class of Certificates and (C) the aggregate amount of
Prepayment Premiums and Seller Partial Prepayment Premiums collected during the
related Collection Period. 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 and Seller Partial Prepayment Premium that are not so
distributed to the Holders of such Principal Balance Certificates will be
distributed to the Holders of the Class X Certificates.
The amount of any Seller Partial Prepayment Premium distributed in
respect of any Seller Partial Prepayment Premium Obligation shall be treated as
distributed from the Grantor Trust and not from either REMIC Pool.
ARTICLE VII
THE TRUSTEE
SECTION 7.1 DUTIES OF THE TRUSTEE.
(a) The Trustee 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. Any permissive right of
the Trustee provided for in this Agreement shall not be construed as a duty of
the Trustee. The Trustee shall exercise 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 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, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee, which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they on
their face conform to the requirements of this Agreement; provided that the
Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument 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 shall request the providing
party to correct the instrument and if not so corrected, the Trustee shall
inform the Certificateholders.
(c) Neither the Trustee nor any of its 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 its negligence or willful misconduct. No provision of this Agreement
shall be construed to relieve the Trustee or any of its directors, officers,
employees, agents or Controlling Persons from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or bad
faith; provided that:
(i) neither the Trustee nor any of its 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 the Trustee 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 nor any of its 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
the Seller, including, without limitation, in connection with actions
taken pursuant to this Agreement;
(iv) the execution by the Trustee of any forms or plans of
liquidation in connection with either REMIC Pool shall not constitute a
representation by the Trustee as to the adequacy of such form or plan of
liquidation;
(v) the Trustee shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties
as Trustee 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 shall be entitled to be reimbursed therefor from the
Certificate Account pursuant to Section 5.2(a)(vi); and
(vi) the Trustee shall not be charged with knowledge of any
failure by the Master Servicer or the Special Servicer to comply with its
obligations under this Agreement or any act, failure, or breach of any
Person upon the occurrence of which the Trustee may be required to act,
unless a Responsible Officer of the Trustee obtains actual knowledge of
such failure.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee 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 document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the 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 any of its 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) the Trustee shall not 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 Certificate Balance of the
Certificates then outstanding, provided that, if the payment within a
reasonable time to the Trustee, 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 shall be paid by the Certificateholders requesting
such examination;
(v) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys, which agents or attorneys shall have any or all of the rights,
powers, duties and obligations of the Trustee conferred on it by such
appointment; provided that the Trustee 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 or the
Depositor;
(vi) the Trustee shall not be required to obtain a deficiency
judgment against a Mortgagor;
(vii) the Trustee shall not 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;
(viii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, the Trustee
shall not be required to post any surety or bond of any kind in connection
with the execution or performance of its duties hereunder;
(x) except as specifically provided hereunder in connection with
the performance of its specific duties, the Trustee shall not be
responsible for any act or omission of the Master Servicer, the Special
Servicer or the Depositor; and
(xi) 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.
(b) 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.
(c) 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.
SECTION 7.3 THE TRUSTEE NOT LIABLE FOR CERTIFICATES OR INTERESTS OR
MORTGAGE LOANS. The Trustee makes no representations as to the validity or
sufficiency of this Agreement, the information contained in the Private
Placement Memorandum, the Prospectus Supplement or Prospectus for the REMIC
Regular Certificates or Residual Certificates (other than the Certificate of
Authentication on the Certificates if the Trustee is the Authenticating Agent)
or of any Mortgage Loan, Assignment of Mortgage or related document save that
(i) the Trustee 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 Trustee 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. The
Trustee shall not be accountable for the use or application by the Depositor or
the Master Servicer or the Special Servicer 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 Prospectus Supplement and Prospectus or the
Certificates (except with respect to the Trustee to the extent of information
furnished by the Trustee under the caption entitled "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Trustee" in the Prospectus Supplement), the Mortgage Loans or
the assignment thereof against the Trustee 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. The Trustee shall not be liable
for any action or failure of any action by the Depositor or the Master Servicer
or the Special Servicer hereunder. The Trustee shall not 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, the 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 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 MAY OWN CERTIFICATES. The Trustee 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.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE. The Trustee
hereunder shall at all times be (i) an institution insured by the FDIC, (ii) a
corporation, national bank or national banking association 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 short-term debt obligations are
at all times rated not less than "A-1" by Fitch and "A-1" by S&P and whose
long-term senior unsecured debt is at all times rated not less than "AA" by
Fitch and "AA" by S&P or otherwise acceptable to the Rating Agencies as
evidenced by a Rating Agency Confirmation. If such corporation, national bank or
national banking association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation, national bank or national banking association shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.6.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
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, except in the case of the initial Trustee, in which case it
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, one copy to the successor trustee and one copy to each of the
Master Servicer and the Rating Agencies. If no successor trustee shall have been
so appointed and shall have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee. It shall be a
condition to the appointment of a successor trustee that such entity satisfies
the eligibility requirements set forth in Section 7.5 and that it has been
approved by the Operating Adviser, such consent not to be unreasonably withheld
(provided, that if the Operating Adviser has not responded to such request for
approval within 15 days of notice of such proposed successor, the Operating
Adviser will be deemed to have approved such successor Trustee); provided,
however, that with respect to any single event of succession of the Trustee, the
Operating Adviser will have the right to withhold its consent to successive
proposals for a successor Trustee for a period of up to 60 days after its first
notice of a proposed successor and thereafter, the consent of the Operating
Adviser will no longer be required.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 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 either 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) or (iv) the continuation of the Trustee as
such would result in a downgrade, qualification or withdrawal of the rating by
Fitch of any Class of Certificates with a rating as evidenced in writing by
Fitch, 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. Any successor Trustee must be approved by the Operating
Adviser (such consent not to be unreasonably withheld); provided, that if the
Operating Adviser has not responded to such request for approval within 15 days
of notice of such proposed successor, the Operating Adviser will be deemed to
have approved such successor Trustee; provided, however, that with respect to
any single event of succession of the Trustee, the Operating Adviser will have
the right to withhold its consent to successive proposals for a successor
Trustee for a period of up to 60 days after its first notice of a proposed
successor and thereafter, the consent of the Operating Adviser will no longer be
required.
(c) [Reserved.]
(d) [Reserved.]
(e) The Holders of more than 50% of the Aggregate Certificate
Balance of the Certificates then outstanding may for cause upon 30 days' written
notice to the Trustee and to the Depositor remove the Trustee 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 so removed; the Depositor shall thereupon use its best efforts to
appoint a successor Trustee in accordance with this Section. Any successor
Trustee must be approved by the Operating Adviser (such consent not to be
unreasonably withheld); provided, that if the Operating Adviser has not
responded to such request for approval within 15 days of notice of such proposed
successor, the Operating Adviser will be deemed to have approved such successor
Trustee; provided, however, that with respect to any single event of succession
of the Trustee, the Operating Adviser will have the right to withhold its
consent to successive proposals for a successor Trustee for a period of up to 60
days after its first notice of a proposed successor and thereafter, the consent
of the Operating Adviser will no longer be required.
(f) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.7. Upon any succession of the Trustee under this Agreement, the
predecessor Trustee shall be entitled to the payment of compensation and
reimbursement agreed to under this Agreement for services rendered and expenses
incurred. The Trustee shall not be liable for any action or omission of any
successor Trustee.
SECTION 7.7 SUCCESSOR TRUSTEE.
(a) Any successor Trustee appointed as provided in Section 7.6 shall
execute, acknowledge and deliver to the Depositor and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein. The predecessor Trustee shall deliver (at such predecessor's own
expense) to the successor Trustee 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 shall also
deliver all records or copies thereof maintained by the predecessor Trustee in
the administration hereof as may be reasonably requested by the successor
Trustee and shall thereupon be discharged from all duties and responsibilities
under this Agreement. In addition, the Depositor and the predecessor Trustee
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 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 shall accept appointment as provided in
this Section unless at the time of such appointment such successor Trustee shall
be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section, the successor Trustee shall mail notice of the
succession of such Trustee 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. If the
successor Trustee fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, the Master Servicer shall cause such
notice to be mailed at the expense of the successor Trustee.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE. Any Person into
which the Trustee 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 shall be a party, or any Persons succeeding
to the business of such Trustee, shall be the successor of such Trustee
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.
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 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 shall supervise and oversee such agents appointed by it. The terms of
any arrangement or agreement between the Trustee and such agent, may be
terminated, without cause and without the payment of any termination fees in the
event the Trustee 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 such agreement, the
Trustee 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 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 by the Trustee 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, at its sole cost and expense, 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. 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 Trustee shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. 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 in the City and State of New York,
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 (only if the Trustee is not acting as Authenticating Agent). 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. 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.
(a) The Trustee and its 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 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 its 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 hereunder but only to the
extent the Trustee 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 itself against any claim in connection with the exercise
or performance of any of its powers or duties hereunder and the Trustee and its
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 of the reports
required to be provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee shall have given
the Depositor, the Master Servicer, the Seller and the Holders of the
Certificates written notice thereof promptly after a Responsible Officer
of the Trustee shall have knowledge thereof; provided, however, that
failure to give such notice to the Depositor, Master Servicer, the Seller
and the Holders of Certificates shall not affect the Trustee's 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
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 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.
(c) The Depositor shall indemnify and hold harmless the Trustee, its
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, its directors, officers, employees or
agents or Controlling Persons 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, the Prospectus Supplement or the Prospectus,
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 Trustee, its directors, officers, employees,
agents or Controlling Persons for any legal and other expenses reasonably
incurred by the Trustee or any such director, officer, employee, agent or
Controlling Persons 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, Prospectus Supplement or Prospectus in reliance upon and
in conformity with written information concerning the Trustee 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 for inclusion in the Prospectus Supplement is set forth in the case of
the Trustee in the second, fourth and fifth sentences under the caption entitled
"DESCRIPTION OF THE OFFERED CERTIFICATES--The Trustee." The Trustee shall
immediately notify the Depositor and the Seller 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 Persons 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, its directors, officers, employees, agents or Controlling Persons 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 Depositor shall not be indemnified by
the Trust for any expenses incurred by the Depositor arising from any violation
or alleged violation of the 1933 Act or 1934 Act by the Depositor.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE. The Trustee shall be
entitled to receive the Trustee 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. The Trustee shall also
be entitled to recover from the Trust all reasonable unanticipated expenses and
disbursements incurred or made by the Trustee 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 hereunder, and except any such expense,
disbursement or advance as may arise from the 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.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise expressly
provided in this Agreement, the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or receivable
by the Trustee pursuant to this Agreement. The Trustee 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 shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer, the Trustee shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee
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), except any ongoing obligations to the
Sub-Servicer arising after the termination of the Master Servicer from its
servicing rights and obligations under the Sub-Servicing 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 Master 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. In addition to the requirements described above, any successor Master
Servicer must be approved by the Operating Adviser; provided, however, that if
the Operating Adviser does not respond to such request for approval within 15
days after notice of such proposed successor, such successor shall be deemed
approved by the Operating Adviser; provided, further, that with respect to any
single event of succession of the Master Servicer, the Operating Adviser will
have the right to withhold its consent to successive proposals for a successor
Master Servicer for a period of up to 60 days after its first notice of a
proposed successor and thereafter, the consent of the Operating Adviser will no
longer be required. 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 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 Master Servicer
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 Master Servicer hereunder. In addition, the Master Servicer 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 Master
Servicer's capacity as such successor, the Master Servicer shall have the same
limitations on liability granted to the Special Servicer in this Agreement. As
compensation therefor, the Master Servicer 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 Master Servicer may, if the
Master Servicer 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. In addition to the requirements
described above, any successor Master Servicer must be approved by the Operating
Adviser; provided, however, that if the Operating Adviser does not respond to
such request for approval within 15 days after notice of such proposed
successor, such successor shall be deemed approved by the Operating Adviser;
provided, further, that with respect to any single event of succession of the
Master Servicer, the Operating Adviser will have the right to withhold its
consent to successive proposals for a successor Master Servicer for a period of
up to 60 days after its first notice of a proposed successor and thereafter, the
consent of the Operating Adviser will no longer be required. Pending any such
appointment, the Master Servicer shall act in such capacity as hereinabove
provided. Any entity designated by the Master Servicer as successor Special
Servicer may be an Affiliate of the Master Servicer; provided that, such
Affiliate must meet the standards for a successor Special Servicer set forth
herein. In connection with such appointment and assumption, the Master Servicer
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 Master Servicer 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 Master
Servicer 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 Master
Servicer 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 Master Servicer 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 Master Servicer 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 Master Servicer
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 or the Special Servicer, or appointment of a successor to the Master
Servicer or the Special Servicer, the Trustee shall promptly mail notice thereof
by first class mail to the Rating Agencies, the Operating Adviser, the Seller
and the Certificateholders at their respective addresses appearing on the
Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE.
(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 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.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE TRUSTEE. The Trustee, at its own expense, shall maintain in
effect a Fidelity Bond and an 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 in similar transactions
(unless the Trustee 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 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 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 "A" as rated by Fitch
and "BBB" as rated by S&P respectively, the Trustee may self-insure for the
Fidelity Bond and the Errors and Omissions Insurance Policy.
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. The
Master Servicer will perform its responsibilities under this Agreement in a
timely manner, in accordance with the Servicing Standard.
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 Master 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, the Depositor and the Seller 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.
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 and which includes the Trustee as a loss payee. 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 debt rating of the Master Servicer (or the entity which wholly owns
the Master Servicer, to the extent it has agreed in writing to guaranty
obligations of the Master Servicer related thereto) 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 "A" as rated by Fitch and "BBB" as
rated by S&P, 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 this Section and Sections 8.7 (which includes
certain consent rights of the Special Servicer), 8.18 (which includes certain
consent rights of the Special Servicer), 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 (which includes certain consent rights of
the Special Servicer), (C) to collect any Insurance Proceeds, (D) subject to
Section 8.7, 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
consent to any subordinate financing to be secured by the ownership interest in
the Mortgagor, to the extent such consent is required pursuant to the terms of
the related Mortgage Loan documents, (E) to administer and monitor the
application of proceeds and awards in accordance with the terms of the Mortgage
Loan as the Master Servicer deems reasonable under the circumstances and,
subject to the terms of Section 8.18 (which includes certain consent rights of
the Special Servicer), 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) subject to Section 8.18 (which includes
certain consent rights of the Special Servicer), 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, (G) subject to
Section 8.18 (which includes certain consent rights of the Special Servicer), to
consent to any operation or action under a Mortgage Loan that is contemplated or
permitted under a Mortgage or other documents evidencing or securing the
applicable Mortgage Loan (either as a matter of right or upon satisfaction of
specified conditions), (H) to obtain, release, waive or modify any term of a
Mortgage Loan and related documents subject to and to the extent permitted by
Section 8.18 (which includes certain consent rights of the Special Servicer),
(I) subject to Section 8.18 (which includes certain consent rights of the
Special Servicer), 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) subject to Section
8.18 (which includes certain consent rights of the Special Servicer), to enter
into lease subordination agreements, nondisturbance and attornment agreements
("SNDA") or other leasing or rental arrangements which may be requested by the
Mortgagor or the Mortgagor's tenants, (K) subject to Section 8.18 (which
includes certain consent rights of the Special Servicer), 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 and (L) subject to
Section 8.18 (which includes certain consent rights of the Special Servicer), to
execute and deliver, 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. Notwithstanding the
above, the Master Servicer shall have no power to (i) waive any Prepayment
Premiums or (ii) subject to Section 8.18, consent to any modification of a Money
Term of a Mortgage Loan without the consent of the Special Servicer. 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), 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. From time to
time until the termination of the Trust, upon receipt of forms of additional
powers of attorney from the Master Servicer, the Trustee shall execute and
return to the Master Servicer such 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. Notwithstanding anything contained herein to
the contrary, neither the Master Servicer nor the Special Servicer shall without
the Trustee's written consent: (i) initiate any action, suit or proceeding
solely under the Trustee's name without indicating the Master Servicer's or
Special Servicer's, as applicable, representative capacity, or (ii) take any
action with the intent to, and which actually does cause, the Trustee to be
registered to do business in any state, provided, however, that the preceding
clause (i) shall not apply to the initiation of actions relating to a Mortgage
Loan that the Master Servicer or the Special Servicer, as the case may be, is
servicing pursuant to its respective duties herein (in which case the Master
Servicer or the Special Servicer, as the case may be, shall give three (3)
Business Days prior notice to the Trustee of the initiation of such action). The
limitations of the preceding clause shall not be construed to limit any duty or
obligation imposed on the Trustee under any other provision of this Agreement.
(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 provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer (or the Sub-Servicer on its behalf) 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. Each Escrow
Account shall be an Eligible Account. 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 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 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 (or the Borrower is entitled to direct the
deposit or investment of) 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 Loan. No Lock-Box Account is
required to be an Eligible Account, unless otherwise required pursuant to the
related Mortgage Loan documents. 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.
SECTION 8.4 SUB-SERVICING. Notwithstanding the provisions of any
Sub-Servicing Agreement or any other provisions of this Agreement, the Master
Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for servicing and administering of the Mortgage Loans in
accordance with the provisions of this Agreement to the same extent as if the
Master Servicer was alone servicing and administering the Mortgage Loans. 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 not be
terminated without cause by the Trustee in the event such Master Servicer is
terminated in accordance with this Agreement. In addition, neither the Trustee
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 and
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 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. The Master Servicer may appoint
one or more Sub-Servicers to perform all or any portion of its duties hereunder
for the benefit of the Trustee and the Certificateholders. The Master Servicer
(other than to the extent that a Sub-Servicing Fee Rate is part of the
Administrative Cost Rate set forth in the Mortgage Loan Schedule) shall pay any
servicing compensation due to any Sub-Servicer out of its own funds. Each
Sub-Servicer will be entitled to receive a Sub-Servicing Fee, which will be
calculated based on the Sub-Servicing Fee Rate.
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 owner or pledgee of Certificates with the same rights it
would have if it were not the Master Servicer or such agent. 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,
after the date hereof, shall use reasonable efforts consistent with the
Servicing Standard to cause the related Mortgagor to maintain for each Mortgaged
Property (other than any REO Property), 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 the Trust's
expense, earthquake insurance on any Mortgaged Property securing a Specially
Serviced Mortgage Loan or an REO Property so long as such insurance is available
at commercially reasonable rates.
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
improvements on the Mortgaged Property are 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 the
improvements on the Mortgaged Property are 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 Trustee for their benefit, be added to
the principal balance of the Mortgage Loan, notwithstanding that the terms of
the 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 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. 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) except in the
case of Mortgage Loans under which Escrow Amounts are not held by the Master
Servicer, 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 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 prior to such penalty or termination date,
subject to Section 4.4 hereof. No costs incurred by the Master Servicer or the
Trustee, 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; DUE-ON-ENCUMBRANCE CLAUSE.
(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, subject to any
conditions set forth in the Mortgage Loan documents, 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. For the purpose of the foregoing sentence, the term
`expressly permits' shall include (i) outright permission to assign, (ii)
permission to assign upon satisfaction of certain conditions or (iii)
prohibition against assignment except upon the satisfaction of stated
conditions. The Master Servicer shall promptly provide to the Special Servicer a
copy of its recommendation with respect to such matter and the materials upon
which such recommendation is based (which information shall consist of the
information to be included in the Assignment and Assumption Submission to
Special Servicer, in the form attached hereto as Exhibit U).
With respect to any such Mortgage Loan, (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 but the Special Servicer shall not unreasonably withhold
its 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 within five (5) Business Days following the Master Servicer's
delivery of the recommendation described above and the complete Assignment and
Assumption Submission to the Special Servicer in the form attached as Exhibit U
on which the recommendation is based to the Special Servicer, of its
determination to grant or withhold such consent shall be deemed to constitute an
approval of the Master Servicer's recommendation 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. If the Special Servicer
withholds consent pursuant to the above provisions, it shall simultaneously
provide the Master Servicer with a written statement and a verbal explanation as
to its reasoning and analysis.
Upon consent by the Special Servicer to such proposed assignment and
assumption and, to the extent, for any Review Threshold Loan, the Master
Servicer has obtained a Rating Agency Confirmation (to the extent consistent
with the Mortgage Loan documents), 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. Neither the Master Servicer nor
the Special Servicer shall consent to any assumption or substitution 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,
neither the Master Servicer nor the Special Servicer shall consent to such an
assumption or substitution agreement unless the credit status of the prospective
new Mortgagor is in conformity to the terms of the related Mortgage Loan
documents. In making its recommendation, the Master Servicer shall evaluate such
conformity in accordance with the Servicing Standard. The Master Servicer shall
notify the Trustee 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) 100% of any
assumption fee collected from a Mortgagor in connection with an assignment and
assumption or substitution executed pursuant to this Section 8.7(a).
(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, in connection with any such sale or assumption, the Master
Servicer shall promptly obtain the relevant information for purposes of
evaluating such sale or assumption and shall provide its recommendation to the
Special Servicer in the manner set forth in Section 8.7(a) above. Based on such
information, the Special Servicer shall direct the Master Servicer, on behalf of
the Trust, to 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 the lesser of 5% of the
Aggregate Certificate Balance and $20 million (a "Review Threshold Loan"), then
prior to waiving the effect of such provision, the Special Servicer shall obtain
the consent of the Master Servicer and shall obtain Rating Agency Confirmation
regarding such waiver. In connection with the request for such consent, the
Special Servicer shall prepare and deliver to Fitch and S&P a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. The Special
Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the Master Servicer, the Trustee, and
the Rating Agencies. The Master Servicer shall be entitled to (as additional
servicing compensation) 100% of any fee collected from a Mortgagor in connection
with the Special Servicer granting or withholding such consent pursuant to this
Section 8.7(b).
(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 and transfer
to any subsidiary or affiliate of the Mortgagor or to a person acquiring less
than a majority interest in the Mortgagor; provided, for any Review Threshold
Loan in which an aggregate of greater than 49% of the interests in the Mortgagor
are proposed to be transferred, the Master Servicer obtains Rating Agency
Confirmation regarding such transfer. The Master Servicer shall be entitled to
collect and receive from the Mortgagor any customary fees in connection with
such transfers of interest as additional servicing compensation.
In the event the Master Servicer receives a request from a Mortgagor
under any Mortgage Loan (other than a Specially Serviced Mortgage Loan) with
respect to the transfer of interest in a Mortgagor, including any transfer to
any subsidiary or affiliate of the Mortgagor, of less than a majority interest
in the Mortgagor, and such right of transfer is not provided for under the terms
of such Mortgage Loan, the Master Servicer shall promptly obtain relevant
information for purposes of evaluating such request. For the purpose of the
foregoing sentence, the term "not provided for" shall include the absence of (i)
the outright permission to assign, (ii) the permission to transfer upon
satisfaction of certain conditions or (iii) the prohibition against transfers
except upon the satisfaction of stated conditions. The Master Servicer shall
promptly provide to the Special Servicer a copy of its recommendation with
respect to such matter 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 transfer of interest in accordance with the
terms of the Mortgage Loan and this Agreement and the Special Servicer shall not
unreasonably withhold its 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 within five (5) Business Days following
the Master Servicer's delivery of the recommendation described above on which
the recommendation is based to the Special Servicer, of its determination to
grant or withhold such consent shall be deemed to constitute an approval of the
Master Servicer's recommendation and (C) the Master Servicer shall not permit
any such transfer of interest 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. If the Special Servicer withholds consent
pursuant to the above provisions, it shall simultaneously provide the Master
Servicer with a written statement and a verbal explanation as to its reasoning
and analysis. Upon consent by the Special Servicer to such proposed transfer of
interest and, to the extent, for any Review Threshold Loan, the Master Servicer
has obtained a Rating Agency Confirmation, the Master Servicer shall process
such request of the related Mortgagor and shall be authorized to consent to such
transfer of interest. To the extent permitted by applicable law, the Special
Servicer shall not consent to such transfer of interest unless the credit status
of the prospective new Mortgagor is in conformity to the terms of the related
Mortgage Loan documents. In making its recommendation, the Master Servicer shall
evaluate such conformity in accordance with the Servicing Standard.
(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
or the Special Servicer, as the case may be, 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 or the Special Servicer, as applicable, shall promptly
deliver copies of such documents to the Trustee and the Master Servicer or the
Special Servicer, as applicable.
(e) If the Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property or
a lien on the ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property, or
(iii) or upon the creation of a lien or encumbrance on the
related Mortgaged Property or the ownership interest in the Mortgagor,
the Master Servicer shall promptly obtain relevant information for purposes of
evaluating any related waiver or consent. The Master Servicer shall promptly
provide to the Special Servicer a copy of its recommendation with respect to
such matter 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 in accordance with the terms of the Mortgage Loan and this
Agreement, but 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 five (5) Business Days following the Master
Servicer's delivery of the recommendation described above and the complete
materials to the Special Servicer 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
waiver 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 in
the preceding sentence. If the Special Servicer withholds consent pursuant to
the foregoing provisions, it shall simultaneously provide to the Master Servicer
a written statement and a verbal explanation as to its reasoning and analysis.
Upon consent or deemed consent by the Special Servicer to such proposed waiver,
the Master Servicer shall process such request of the related Mortgagor subject
to the other requirements set forth above. Prior to waiving the effect of such
provision, the Master Servicer shall obtain Rating Agency Confirmation regarding
such waiver and shall comply with the provisions of this paragraph.
(f) The Master Servicer shall have the right to consent to the
incurrence of any unsecured financings by a Mortgagor related to trade payables
or equipment financings, to the extent such consent is allowed under the terms
of the related Mortgage Loan. The Master Servicer shall be entitled to collect
and receive from the Mortgagor any customary fees in connection with such
transfers of interest as additional servicing compensation. With respect to the
incurrence of any unsecured financings by a Mortgagor related to trade payables
or equipment financings, to the extent that the ability of the Mortgagor to
incur such unsecured financings is not allowed under the terms of the related
Mortgage Loan, then, as long as such Mortgage Loan is included in the Trust, the
Master Servicer shall promptly obtain relevant information for purposes of
evaluating any related waiver or consent and shall promptly provide to the
Special Servicer a copy of its recommendation with respect to such matter 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 in accordance with the terms of the Mortgage Loan and this Agreement,
but 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 five (5) Business Days following the Master Servicer's delivery
of the recommendation described above and the complete materials to the Special
Servicer 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 waiver 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 in the preceding sentence. If the
Special Servicer withholds consent pursuant to the foregoing provisions, it
shall simultaneously provide to the Master Servicer a written statement and a
verbal explanation as to its reasoning and analysis. Upon consent or deemed
consent by the Special Servicer to such proposed waiver, the Master Servicer
shall process such request of the related Mortgagor subject to the other
requirements set forth above.
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 and 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 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 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, 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 Master 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 servicing fees,
default interest payable at a rate above the Mortgage Rate (net of any amount
used to pay Advance Interest), Modification Fees, forbearance fees, all 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 all
assumption fees collected on Mortgage Loans that are not Specially Serviced
Mortgage Loans provided in Section 8.7(a), (ii) Modification Fees collected on
Mortgage Loans which are not Specially Serviced Mortgage Loans as provided in
Section 8.18 hereof; and (iii) any extension fees collected from the related
Mortgagor in connection with the extension of a Mortgage Loan collected on
Mortgage Loans which are not Specially Serviced Mortgage Loans as provided in
Section 8.18; provided the Master Servicer shall not be entitled to any such
fees in connection with any Specially Serviced Mortgage Loan. If the Master
Servicer collects any amount payable to the Special Servicer hereunder in
connection with a Mortgage Loan, 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 Master 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 Trustee, no later than 2:00 p.m., New York City time, on the
related Report Date, the Master Servicer Remittance Report with respect to such
Distribution Date and (ii) the Master Servicer shall report to the Trustee 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 to the Master Servicer on the Determination Date
those reports which are set forth in Section 8.11(g)(vii), (viii), (ix) and (x)
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 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) [Reserved].
(e) The Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee pursuant to subsection (a) or subsection
(b) of this Section 8.11 to the Depositor, the Special Servicer, the Operating
Adviser 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.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Master Servicer shall not have any obligation to deliver any statement,
notice or report that is then made available on the Master Servicer's internet
website (other than reports delivered to the Trustee), provided that it has
notified all parties entitled to delivery of such reports, by electronic mail or
other notice provided in this Agreement, to the effect that such statements,
notices or reports shall thereafter be made available on such website from time
to time.
(g) The Master Servicer shall deliver or cause to be delivered to
the Trustee the following CMSA Reports with respect to the Mortgage Loans (and,
if applicable, the related REO Properties) providing the required information as
of the related Determination Date upon the following schedule: (i) Comparative
Financial Status Report not later than each Report Date, commencing in March
2001; (ii) the Delinquent Loan Status Report (commencing in March 2001); (iii)
an Operating Statement Analysis Report and an NOI Adjustment Worksheet in
accordance with Section 8.14 of this Agreement; (iv) a Servicer Watch List in
accordance with and subject to the terms of Section 8.11(h) on each Report Date,
commencing in March 2001; (v) a Loan Set-Up File (with respect to the initial
Distribution Date only) not later than the Report Date in February 2001; (vi) a
Loan Periodic Update File not later than each Report Date commencing in February
2001; (vii) a Property File not later than each Report Date, commencing in March
2001; (viii) provided, that such report is received from the Special Servicer, a
Delinquent Loan Status Report on each Report Date, commencing in March 2001;
(ix) provided, that such report is received from the Special Servicer, an
Historical Loan Modification Report not later than each Report Date, commencing
in March 2001, (x) provided, that such report is received from the Special
Servicer, an Historical Liquidation Report not later than each Report Date,
commencing in March 2001; (xi) provided, that such report is received from the
Special Servicer, an REO Status Report on each Report Date, commencing in March
2001; and (xii) Financial File commencing March 2001. The information that
pertains to Specially Serviced Mortgage Loans and REO Properties reflected in
such reports shall be based solely upon the reports delivered by the Special
Servicer to the Master Servicer in writing and on a computer readable medium
reasonably acceptable to the Master Servicer and the Special Servicer on the
Special Servicer Remittance Date prior to the related Master Servicer Remittance
Date in the form required under Section 9.32. The Master Servicer's
responsibilities under this Section 8.11(g) with respect to REO Loans and
Specially Serviced Mortgage Loans shall be subject to the satisfaction of the
Special Servicer's obligations under Section 9.32.
(h) For each Distribution Date, the Master Servicer shall deliver to
the Trustee, not later than the related Report Date, a Servicer Watch List. The
Master Servicer shall list any Mortgage Loan on the Servicer Watch List as to
which any of the following events have occurred: (i) Mortgage Loans having a
current actual Debt Service Coverage Ratio that is 80% or less of the Debt
Service Coverage Ratio listed for such Mortgage Loan on Appendix II to the
Prospectus Supplement or having a Debt Service Coverage Ratio that is less than
1.00x, (ii) Mortgage Loans as to which any required inspection of the related
Mortgaged Property conducted by the Master Servicer indicates a problem that the
Master Servicer determines can reasonably be expected to materially adversely
affect the cash flow generated by such Mortgaged Property, (iii) Mortgage Loans
which have come to the Master Servicer's attention in the performance of its
duties under this Agreement, in respect of which (A) the occupancy of the
related Mortgaged Property is under 80%, (B) any tenant occupying 25% or more of
the space in the related Mortgaged Property is the subject of bankruptcy or
similar proceedings if the Master Servicer has received written notice of such
proceedings or such proceedings have become general public knowledge or (C) any
Mortgagor or an affiliate thereof has been the subject of bankruptcy or similar
proceedings if the Master Servicer has received written notice of such
proceedings or such proceedings have become general public knowledge, (iv)
Mortgage Loans that are at least 30 days delinquent in payment and (v) Mortgage
Loans that are within 60 days of maturity.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Master Servicer
shall deliver to the Depositor and the Trustee on or before March 15 of each
year, commencing on March 15, 2002, 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 and the
Operating Adviser.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT. On or before March 15 of each year, commencing in March 15, 2002, 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 and
the Trustee to the effect that such firm has examined certain documents and
records relating to the servicing of mortgage loans serviced by the Master
Servicer 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 standards 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 OPERATING STATEMENT ANALYSIS REPORTS REGARDING THE
MORTGAGED PROPERTIES. Not later than the Report Date occurring in July of each
year, the Master Servicer (in the case of Mortgage Loans that are not Specially
Serviced Mortgage Loans) or the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall deliver to the Trustee and, upon request, to the
Placement Agent, either Underwriter, the Rating Agencies, any Operating Adviser
and the Depositor an Operating Statement Analysis Report and an NOI Adjustment
Worksheet 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 reports to the
Master Servicer on or before the date which is 20 days prior to the date such
reports must be delivered to the Trustee), containing such information and
analyses for each Mortgage Loan provided for in the form of Operating Statement
Analysis Report and an NOI Adjustment Worksheet as would customarily be included
in accordance with the Servicing Standard including, without limitation, Debt
Service Coverage Ratios and income. In addition, the Master Servicer shall
deliver to the Operating Adviser and upon request the Master Servicer shall make
available to the Rating Agencies, the Special Servicer, and the Trustee, within
30 days following receipt thereof by the Master Servicer, copies of any annual,
monthly or quarterly financial 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
Mortgaged Property in general. The Trustee shall provide or make available
electronically at no cost to such Certificateholder or Certificate Owner, such
Operating Statement Analysis Reports pursuant to Section 5.4(a) if the Operating
Statement Analysis Report has been provided electronically by the Master
Servicer. If such Operating Statement Analysis Reports are not provided to the
Trustee electronically, the Trustee shall deliver such reports by first class
mail if requested by a Certificateholder or Certificate Owner in writing.
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF THE
MASTER SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the Trustee shall
make available at its Corporate Trust Office, during normal business hours, upon
reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, the Seller, any Placement Agent, each Underwriter, each
Rating Agency 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 Operating Statement Analysis 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 since the Closing Date, (iv) all accountants' reports delivered
to the Trustee since the Closing Date, (v) the most recent property Inspection
Reports in the possession of the Trustee 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 attachments
thereto) delivered to the Trustee to support the Master Servicer's determination
that any Advance was not or, if made, would not be, recoverable. The Trustee
will be permitted to require payment of a sum to be paid by the requesting party
(other than the Rating Agencies, the Trustee, the Placement Agent or either
Underwriter) 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 Special
Servicer, the Seller, the Placement Agent, either Underwriter, 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 Special Servicer, the 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 or report prepared by the Special Servicer or Mortgagor. Notwithstanding
the above, the Master Servicer shall not have any liability to the Depositor,
the Trustee, the Special Servicer, any Certificateholder, any Certificate Owner,
the 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 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 Special Servicer, the Seller, the Placement Agent, either
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 Master Servicer, the Special Servicer, the Rating
Agencies, the Operating Adviser, 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 Xxxx Xxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series
2001-PPM 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";
provided, however, that as an alternative, a confidentiality agreement, in a
form satisfactory to the Master Servicer, to the same effect may be executed by
the recipient.
(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. The Master Servicer shall be entitled to satisfy its obligations to
deliver any report or other information to any Person by making such information
available or causing such information to be made available on the website of the
Master Servicer or, if such information is required to be made available
hereunder, on the website of the Trustee and shall be entitled to so make
information available to any Person entitled to such information, subject to, in
the case of a Certificateholder, receipt of a certification and agreement
otherwise described in Section 8.16.
(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 as 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 Trustee 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 Trustee, upon the request of such
Certificateholder, such Certificate Owner or the Trustee, 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 directly, the
Depositor, the Placement Agent, each Underwriter or the Trustee 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 Placement Agent, either
Underwriter, 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
Placement Agent or each Underwriter) 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 2002, or every second calendar year beginning in 2002
if the principal balance of the related Mortgage Loan is under $2 million;
provided that the Master Servicer shall, at the expense of the Trust, inspect or
cause to be inspected each Mortgaged Property related to a Mortgage Loan that
has a Debt Service Coverage Ratio for the prior calendar year based upon annual
financial statements of the Mortgagor that falls below 1.0x. The Master Servicer
shall prepare an Inspection Report relating to each inspection. The Master
Servicer shall promptly forward the applicable Inspection Report to the Trustee,
the Special Servicer and, upon request, to the Rating Agencies, the Placement
Agent, either Underwriter, the Depositor and the Operating Adviser. 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.
(a) (i) Subject to the limitations of Section 8.18(a)(iii) and
Section 12.3 hereof, the Master Servicer shall have the following powers
(without the requirement of obtaining consent of the Special Servicer) with
respect to any Mortgage Loan that is not also a Specially Serviced Mortgage
Loan:
(A) 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 to the Holders on a net present
value basis than liquidation of such Mortgage Loan and the Mortgagor
has obtained an executed written commitment (subject only to
satisfaction of conditions set forth therein) for refinancing of the
Mortgage Loan or purchase of the related Mortgaged Property. 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) negotiate and enter into all SNDAs and tenant estoppels
related to any lease that in the aggregate will represent no more
than 20% of the gross income for all of the Mortgaged Properties
that secure the related Mortgage Loan; and
(C) with respect to any provision of any Mortgage Loan that by
its terms permits a specified action upon the occurrence of certain
terms and conditions (other than those provisions described in
Section 8.7, Section 8.18(a)(ii)(B)(7) and (8) below), the Master
Servicer may evaluate whether certain conditions or requirements
have been satisfied without the consent or approval of the Special
Servicer. If the Master Servicer makes the determination that such
conditions or requirements have been met, the Master Servicer shall
take all necessary action to effect such action as set forth in the
terms of the Mortgage Loan documents.
(ii) The Master Servicer in accordance with the Servicing Standard
and this Section 8.18 shall promptly provide notice to the Special Servicer of
any proposed modification, waiver, amendment or consent of or relating to:
(A) any term of a Mortgage Loan that is not a Specially
Serviced Mortgage Loan; or
(B) any request by a Mortgagor that is not covered in Section
8.18(a)(i) above (items that do not require Special Servicer
approval). Examples of the type of Mortgagor requests for which
notice to the Special Servicer must be provided will include, but
not be limited to, the following:
(1) any new lease to a portion of a Mortgaged Property that
is not in conformance with the leasing guidelines in the
related Mortgage Loan documents;
(2) any modification to an existing lease of a Mortgaged
Property that is not in conformance with the leasing
guidelines in the related Mortgage Loan documents;
(3) any request to change a property manager for any
Mortgaged Property or any proposal to change the
standards for operation and management of any Mortgaged
Property;
(4) any request for a new easement, encroachment or
covenant, conditions and restrictions agreement (CCR),
ground lease or any request for a modification to any
existing easement, encroachment, CCR or ground lease;
(5) approval of the rebuilding or renovation plan, schedule
and budget in the event of a casualty or condemnation at
a Mortgaged Property;
(6) consent to changes in standard SNDA or estoppel forms
for any new leases, renewal leases or modifications to
existing leases where the tenant provides 20% or more of
the gross rental income for all of the Mortgaged
Properties that secure the related Mortgage Loan;
(7) a request for a substitution of collateral that as
provided for in the related Mortgage Loan Documents for
Loan Numbers 109 (Interchange I, II and III) and
Mortgage Loan Xx. 000 (Xxxxxxxxx Xxxxxxx Xxxxxxxx); and
(8) a partial release of any collateral that is part of a
Mortgaged Property.
In addition to providing notice in the manner prescribed above, the
Master Servicer shall promptly provide the Special Servicer with its
recommendation with respect to such modification, waiver, amendment or consent,
along with a copy of 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, but 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 five (5) 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 an approval of the Master Servicer's recommendation 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. Upon receipt of consent or deemed consent from the Special Servicer in
the manner prescribed above, the Master Servicer may agree to such modification,
waiver, amendment or consent.
(iii) Notwithstanding any other provision in this Agreement:
(A) a modification, waiver amendment or consent will not be
processed if such action would result in an Adverse REMIC Event; and
(B) any modification, amendment or waiver of any Money Term of
a Mortgage Loan that is not a Specially Serviced Mortgage Loan or
relating to a partial release of any Mortgaged Property not
otherwise provided for in the Mortgage Loan documents will be
subject to the same restrictions for amendments to Money Terms as
set forth in Section 9.5(c) and shall require the Master Servicer to
obtain a Rating Agency Confirmation with respect to such action.
The Master Servicer shall be entitled to (as additional servicing compensation)
any Modification Fee collected from a Mortgagor in connection with any
modification, waiver, amendment or consent in connection with this Section 8.18.
(b) The Master Servicer may require, in its discretion (unless
prohibited or otherwise provided in the Mortgage Loan documents), 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; provided that the
collection of such fee shall not be permitted if collection of such fee would
cause a "significant modification" (within the meaning of Treasury Regulations
Section 1.860G-2(b)), of the Mortgage Loan. The Master Servicer may charge the
Mortgagor for any costs and expenses (including attorneys' fees) incurred by the
Master Servicer in connection with any request for a modification, waiver or
amendment. The Master Servicer agrees to use its best reasonable efforts in
accordance with the Servicing Standard to collect such costs, expenses and fees
from the Mortgagor, provided that, subject to the following sentence, 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
(but not including any modification fee), 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 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 term of a Specially
Serviced Mortgage Loan.
(d) Notwithstanding the foregoing provisions of this Section 8.18,
if the Mortgage Loan documents relating to a Mortgage Loan provide that a Rating
Agency Confirmation is specifically required (and not merely an option of the
lender) as a condition to the taking of certain actions by the Master Servicer
or the Special Servicer (or the failure of the Master Servicer or the Special
Servicer to take such actions), then the Master Servicer or Special Servicer, as
applicable, shall not be permitted to waive such condition without a Rating
Agency Confirmation in respect of such waiver.
(e) Any provision of this Section 8.18 to the contrary
notwithstanding, none of the Special Servicer or Master Servicer shall agree to
any consent, waiver or other modification of a Mortgage Loan that is not in
default or with respect to which default is not reasonably foreseeable, unless
it has been determined that such consent, waiver or other modification is not a
"significant modification" of the Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b) (and the Special Servicer or Master Servicer, as
applicable, may rely on an Opinion of Counsel in making such determination,
provided the cost of such Opinion of Counsel shall be an expense of the
applicable Mortgagor, to the extent not inconsistent with the applicable loan
documents, or, if inconsistent with the applicable loan documents, the Trust).
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to the Special
Servicer, the Rating Agencies 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 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
relating to Specially Serviced Mortgage Loans shall be based on reports 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 reports 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 reports
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 limited partnership under the laws of the State of
Texas, 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 and the Special 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 limited partnership
agreement or certificate of limited partnership 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 limited
partnership 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 and the Master Servicer possesses all licenses,
permits and other authorizations necessary to perform its duties
hereunder.
(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 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 and that the any successor entity has been
approved by the Operating Adviser (such consent not to be unreasonably
withheld); provided, that if the Operating Adviser has not responded to such
request for approval within 15 days of notice of such proposed successor, the
Operating Adviser will be deemed to have approved such successor entity;
provided, however, that with respect to any single event of succession of the
Master Servicer, the Operating Adviser will have the right to withhold its
consent to successive proposals for a successor Master Servicer for a period of
up to 60 days after its first notice of a proposed successor and thereafter, the
consent of the Operating Adviser will no longer be required. 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 the
Sub-Servicing Agreements, Rating Agency Confirmation shall have been obtained
and consent of such successor Master Servicer has been obtained from the
Operating Adviser; provided, however, that if the Operating Adviser does not
respond to such request for approval within 15 days after notice of such
proposed successor, such successor shall be deemed approved by the Operating
Adviser; provided, further, that with respect to any single event of succession
of the Master Servicer, the Operating Adviser will have the right to withhold
its consent to successive proposals for a successor Master Servicer for a period
of up to 60 days after its first notice of a proposed successor and thereafter,
the consent of the Operating Adviser will no longer be required. 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 (w) is available, (x) has assets of at least $15,000,000 and (y) 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 (including its obligations under the Sub-Servicing Agreements); (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 (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; (v) the Depositor consents to such
assignment and delegation, such consent not be unreasonably withheld and (vi)
that the Operating Adviser consents to such assignment and delegation, such
consent not to be unreasonably withheld; provided, that if the Operating Adviser
has not responded to such request for consent within 15 days of notice of such
proposed assignment and delegation, the Operating Adviser will be deemed to have
consented thereto; provided, further, however, that with respect to any single
event of succession of the Master Servicer, the Operating Adviser will have the
right to withhold its consent to successive proposals for a successor Master
Servicer for a period of up to 60 days after its first notice of a proposed
successor and thereafter, the consent of the Operating Adviser will no longer be
required. 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 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 Placement Agent,
either Underwriter 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 (subject to the
provisions of Section 4.4 hereof), as provided by Section 5.2.
(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 or Trustee 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 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, financial
statement, agreement, appraisal, bond or other document (in electronic or
paper format) 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 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 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 the Special
Servicer 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, to the extent the claim was made in connection with the
Trustee's willful misfeasance, bad faith or negligence, or the Special Servicer,
to the extent the claim was made in connection with the Special Servicer's
willful misfeasance, bad faith or negligence, 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 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
Special Servicer shall not affect any rights the Master Servicer may have to
indemnification under this Agreement or otherwise, unless the Trustee's or
Special Servicer's, as the case may be, defense of such claim is materially
prejudiced thereby. Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Master Servicer hereunder. Any
payment hereunder made by the Trustee or the Special Servicer pursuant to this
paragraph to the Master Servicer shall be paid from the Trustee's or the Special
Servicer's, as the case may be, 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 or the Special
Servicer shall be reimbursed by the party so paid, if a court of competent
jurisdiction makes a final judgment that the conduct of the Trustee or the
Special Servicer was not culpable or the indemnified party is 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 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 Master Servicer shall assume the defense of any such
claim 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 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 or the Master
Servicer shall promptly make from the Certificate Account any payments certified
by the Master Servicer to the Trustee 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 Special
Servicer, the Trust, the Depositor and any director, officer, employee, agent or
Controlling Persons 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
Special Servicer, 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 Special Servicer or the Depositor, as applicable, 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 Depositor, the
Special Servicer 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 Special Servicer 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 Special Servicer, 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 Special Servicer 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
and the Trustee and each of their respective directors, each of its officers,
employees, agents and any Controlling Persons of the Trustee from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Trust or the Trustee, or any such director, officer,
employees, agents or such Controlling Persons 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 Prospectus Supplement or Prospectus 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 or Trustee or any such director, officer, employee, agent or
Controlling Persons for any legal and other expenses reasonably incurred by the
Trust, the Trustee or any such director, officer, employee, agent or Controlling
Persons 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 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 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 the Trustee) 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 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 provided herein shall survive the
termination of this Agreement and the resignation or termination of the Master
Servicer 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 Prospectus Supplement, the Private Placement Memorandum and
the Prospectus is the information set forth under the paragraphs under the
caption "SERVICING OF THE MORTGAGE LOANS--The Master Servicer and Special
Servicer" of the Prospectus Supplement.
SECTION 8.26 EXCHANGE ACT REPORTING. The Master Servicer, the
Special Servicer and the Trustee 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 Trustee 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 Trustee (to the extent not generated by the Trustee) in the
format required for electronic filing via the XXXXX system; and provided,
further, that any such items that are required to be delivered by the Master
Servicer, the Special Servicer, the Depositor or any other Person to the Trustee
shall be so delivered compatible with the format required for electronic filing
via the XXXXX system (in addition to any other required format). The Trustee
shall have no responsibility to file any such items that have not been received
in such XXXXX-compatible format nor shall it have any responsibility to convert
any items to such format. The Depositor shall 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 provide a copy of any such documents to the Trustee and the Trustee
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 two
REMIC Pools as REMICs under the Code. The Master Servicer shall take no action
or cause either REMIC Pool to take any action that could (i) endanger the status
of either REMIC Pool as a REMIC under the Code or (ii) result in the imposition
of a tax upon either REMIC Pool (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 Trustee shall 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 Master Servicer shall
comply with the provisions of Article XII hereof.
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 Trustee as set forth in Section 8.29 and the obligations of the
Master Servicer to the Trustee, the Special Servicer and the Trust as set forth
in Section 8.25 and elsewhere in this Agreement) shall terminate (i) on the date
which is the later of (A) the final payment or other liquidation of the last
Mortgage Loan remaining outstanding (and final distribution to the
Certificateholders) or (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) if an Event of Default described
in clauses 8.28(b)(iii), (iv), (v), (vi) or (vii) 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), (ii), (viii), (ix) or (x) 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 Aggregate 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 (a) to remit to the
Trustee any payment required to be remitted by the Master Servicer under
the terms of this Agreement, including any required P&I Advances; or (b)
to make any Servicing Advance that is required to be made by the Master
Servicer hereunder and such failure is not remedied within five (5)
Business Days following notice of such failure from the Trustee; or
(ii) any failure by the Master Servicer to make a required
deposit to the Certificate Account which continues unremedied for one
Business Day following the date on which such deposit was first required
to be made; or
(iii) 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
(iv) 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 Certificates 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
(v) one or more ratings assigned to the Certificates by Fitch
have or will be downgraded, withdrawn or qualified as a result of the
Master Servicer acting in its capacity as Master Servicer.
(vi) [Reserved]; or
(vii) either (i) the Master Servicer is no longer on the approved
list of commercial mortgage loan master servicers maintained by S&P and,
if so removed from such approved list, S&P does not return the Master
Servicer to such approved list within sixty (60) days, or (ii) the Master
Servicer has been downgraded to below "CMS3" or its equivalent by Fitch
and, if so downgraded, Fitch does not return the Master Servicer to at
least "CMS3" or its equivalent within sixty (60) days; or
(viii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(ix) 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 of or relating to the Master Servicer
or of or relating to all or substantially all of its property; or
(x) 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 Trustee shall be made, shall be given
promptly in writing by the Master Servicer to the Trustee 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 Trustee the
amounts remaining in the Certificate Account as set forth below and the
obligations of the Master Servicer to the Trustee and the Trust as provided
herein) shall terminate and the Master Servicer shall transfer to the Trustee
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 (except for any rights relating to unpaid
servicing compensation or unreimbursed Advances); provided that in no event
shall the termination of the Master Servicer be effective until a successor
servicer, which has been approved by the Operating Adviser (such approval not to
be unreasonably withheld), shall have succeeded the Master Servicer as successor
servicer; provided, further, such successor servicer shall have obtained a
Rating Agency Confirmation from each Rating Agency and such successor servicer
shall have notified the Master Servicer of such designation, and such successor
servicer shall have assumed the Master Servicer's obligations and
responsibilities hereunder and under the Sub-Servicing Agreements, as set forth
in an agreement substantially in the form hereof, with respect to the Mortgage
Loans. If the Operating Adviser has not responded within 15 days after notice of
such proposed successor, the proposed successor shall be deemed approved by the
Operating Adviser; provided, however, that with respect to any single event of
succession of the Master Servicer, the Operating Adviser will have the right to
withhold its consent to successive proposals for a successor Master Servicer for
a period of up to 60 days after its first notice of a proposed successor and
thereafter, the consent of the Operating Adviser will no longer be required.
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)(viii), 8.28(b)(ix) or 8.28(b)(x), the Trustee shall act as
successor servicer immediately upon delivery of a notice of termination to the
Master Servicer and shall use commercially reasonable efforts within 90 days of
assuming the duties of the Master 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 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 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.
(c) If the Master Servicer receives a written notice of termination
pursuant to clause (ii) of Section 8.28(a) relating solely to an Event of
Default set forth in clause (v) or (vii) of Section 8.28(b), then the Master
Servicer shall promptly solicit good faith bids for the rights to service the
Mortgage Loans under this Agreement from Qualified Bidders.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Master Servicer,
and to agree to be bound by the terms hereof and of the Sub-Servicing
Agreements, not later than 60 days after termination of the Master Servicer
hereunder. The Master Servicer shall select, subject to approval by the
Operating Adviser (such approval not to be unreasonably withheld), the Qualified
Bidder with the highest cash bid (or such other Qualified Bidder as the Master
Servicer may direct) (the "Successful Bidder") to act as successor Master
Servicer hereunder, provided that the Trustee shall have received the Rating
Agency Confirmation from each Rating Agency; provided, further, however, that if
the Operating Adviser does not respond to such request for approval within 15
days after notice of such proposed successor, such successor shall be deemed
approved by the Operating Adviser; provided, however, that with respect to any
single event of succession of the Master Servicer, the Operating Adviser will
have the right to withhold its consent to successive proposals for a successor
Master Servicer for a period of up to 60 days after its first notice of a
proposed successor and thereafter, the consent of the Operating Adviser will no
longer be required. The Trustee shall direct the Successful Bidder to enter into
this Agreement as successor Master Servicer pursuant to the terms hereof, and in
connection therewith to deliver the amount of the Successful Bidder's cash bid
to the Trustee by wire transfer of immediately available funds to an account
specified by the Trustee no later than 10:00 a.m. New York City time on the date
specified for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder. Any expenses incurred by the Trustee in connection
with servicing transfer shall be paid by the Master Servicer, and if not paid by
the Master Servicer after being terminated upon demand, by the Trust Fund.
(f) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within sixty (60) days after the termination of the
Master Servicer hereunder or no Successful Bidder was identified within such
60-day period, the Trustee shall have no further obligations under Section
8.29(c) and may act or may select another successor to act as Master Servicer
hereunder in accordance with Section 8.29(b).
(g) Notwithstanding anything to the contrary in this Section 8.29,
the successor Master Servicer must assume all of the obligations of the
terminated Master Servicer under the Sub-Servicing Agreement with each
Sub-Servicer not in default of its respective Sub-Servicing Agreement as a
condition precedent to its becoming Master Servicer hereunder.
SECTION 8.30 ADMINISTRATION OF THE NON-30/360 LOANS AND THE
ACTUAL/360 ACCOUNT.
(a) Notwithstanding any other provision in this Agreement: (i) a
Non-30/360 Loan will not be considered a Specially Serviced Mortgage Loan solely
because the related Mortgagor has paid interest and principal on an accrual
based on a 30/360 basis instead of an actual/360 basis; and (ii) neither the
Master Servicer nor the Special Servicer will consider a Non-30/360 Loan to be
in default solely because the related Mortgagor has paid interest and principal
based on an amortization on 30/360 basis instead of an actual/360 basis. The
Master Servicer and the Special Servicer will accept all payments of principal
and interest that are collected on each Non-30/360 Loan into the Certificate
Account as if such payments were made on an actual/360 basis, based on the
amortization schedules attached hereto as Exhibit P.
(b) Upon any prepayment or payment in full of the outstanding
principal amount on any Non-30/360 Loan, to the extent of any shortfall in the
payment made by the related Mortgagor that would result solely if the Master
Servicer applied the monthly payments due under the Mortgage Loan documents to
principal and interest payments on a 30/360 basis rather than applying the
payments in accordance with the accrual set forth on Exhibit P hereto) the
Master Servicer shall withdraw amounts in the Actual/360 Account to the extent
of such shortfall (up to the amount in such account) and deposit such amounts
into the Distribution Account on the Master Servicer Remittance Date following
such prepayment or payment. Such payment from the Actual/360 Account will be
considered a cure of any default by the related Mortgagor for such shortfall.
(c) Any portion of the Actual/360 Amount remaining in the Actual/360
Account (other than any interest income earned thereon by the Master Servicer
pursuant to the terms of this Agreement) upon the payment in full of both
Non-30/360 Loans shall be remitted by the Master Servicer, 50% to the Seller and
50% to the Depositor.
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 (or electronic form as specified by the Master
Servicer), 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 requested by the Master Servicer, 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 Trustee 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, together with any documents in the possession of
the Special Servicer necessary for the servicing of such Mortgage Loan, which
notice shall identify the applicable Mortgage Loan. Upon the receipt of such
notice by the Master Servicer and the Trustee, 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 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.
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 "A" as rated by Fitch
and "BBB" as rated by S&P, 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. The Special Servicer shall pay any
servicing compensation due to any Sub-Servicer out of its own funds.
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 and, to
the extent consistent with this Agreement, 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 Persons 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
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, 2002); provided,
further, that the Special Servicer shall, at the expense of the Trust, inspect
or cause to be inspected each Mortgaged Property related to a Mortgage Loan that
is delinquent for sixty (60) days in the payment of any amounts due under such
Mortgage Loan. 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;
DUE-ON-ENCUMBRANCE CLAUSES. 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 Mortgage Loan is a Review Threshold Loan, 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 Fitch and S&P 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 Fitch and S&P 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. 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 that
is required under the related Mortgage Loan documents (either as a matter of
right or upon satisfaction of specified conditions) and shall otherwise enter
into any 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 any Monetary Term of any Mortgage Loan or the terms of
any Specially Serviced Mortgage Loan, including any modification, waiver or
amendment to (i) reduce the amounts owing under any Mortgage Loan by forgiving
principal, accrued interest and/or any Prepayment Premium, (ii) reduce the
amount of the Scheduled Payment on any Mortgage Loan, including by way of a
reduction in the related Mortgage Rate, (iii) forbear in the enforcement of any
right granted under any Mortgage Note or Mortgage relating to a Mortgage Loan,
(iv) extend the Maturity Date of any Mortgage Loan and/or (v) accept a principal
prepayment on any 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 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 or (ii) if the Specially
Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of
such Specially Serviced Mortgage beyond a date that is twenty (20) years prior
to the expiration of the term of such ground lease.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 9.5(c) shall be evidenced
by an Officer's Certificate certifying the information in the proviso to the
first paragraph under this 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 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; provided, further, for any Review Threshold Loan,
Special Servicer shall obtain Rating Agency Confirmation of any substitution of
collateral for all or any portion of a Mortgaged Property pursuant to Section
9.5(c) or any pledge of additional collateral for such Review Threshold Loan
pursuant to Section 9.5(c).
(e) The Special Servicer will promptly deliver to the Master
Servicer, the Operating Adviser, the Trustee 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 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 ss. 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.
(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.
(i) If any Specially Serviced Mortgage Loan which contains a
provision in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then, for so long as such Mortgage Loan is included in the Trust, the
Special Servicer, on behalf of the Trustee as the mortgagee of record,
shall exercise (or, subject to Section 9.5, waive its right to exercise)
any right it may have with respect to such Mortgage Loan (x) to accelerate
the payments thereon, or (y) to withhold its consent to the creation of
any such additional lien or other encumbrance, in a manner consistent with
the Servicing Standard. Prior to waiving the effect of such provision, the
Special Servicer shall obtain Rating Agency Confirmation regarding such
waiver.
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 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.
(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, the Special Servicer shall notify, in
writing, each Mortgagor under each Rehabilitated Mortgage Loan of such transfer
in accordance with the Servicing Standard.
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 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 shall be entitled to receive from the Special Servicer all such
information as the Trustee shall reasonably require to perform its duties
hereunder. In fulfilling such a request, the Special Servicer shall not be
responsible for determining whether such information is sufficient for the
Trustee's, the Master Servicer'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 Delaware
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 and the Master Servicer, 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);
(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 and the Special Servicer possesses all licenses,
permits and other authorizations necessary to perform its duties
hereunder.
(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
or the Special Servicer. The Special Servicer shall give prompt notice to the
Trustee, 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 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 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
improvements to the Mortgaged Property are 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
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, 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 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 "A" by Fitch and "A" by S&P or otherwise
approved by the Rating Agencies. 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 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. If the Special Servicer resigns or is
terminated for any reason, it shall retain the right to receive any Work-Out
Fees payable on Mortgage Loans that became Rehabilitated Mortgage Loans while it
acted as Special Servicer and remained Rehabilitated Mortgage Loans at the time
of such resignation or termination for so long as such Mortgage Loan remains a
Rehabilitated Mortgage Loan.
(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, all assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, all 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. 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 shall be subject to the
determination(s) of recoverability contemplated by Section 4.4.
(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 either REMIC Pool under
the Code or cause either 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 multifamily mortgage loans and customary servicing practices in the case
of commercial loans for environmental assessments, which report shall be
delivered to the Trustee not less than twelve months old, 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 to the Holders 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 to the Holders on a net present value basis than not
taking such actions (after taking into account the projected costs of 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 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
(after taking into account the projected costs of 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 one or more accounts held in trust
for the benefit of the Certificateholders in the name of "Xxxxx Fargo Bank
Minnesota, N.A., as Trustee for the Holders of Xxxxxx Xxxxxxx Xxxx Xxxxxx
Capital I Inc. Commercial Mortgage Pass-Through Certificates Series 2001-PPM
[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 request advances from the Master Servicer to pay for
the following items (which amounts shall be reimbursed by the Trust in
accordance with Section 4.6(e)), 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
request the Master Servicer to advance 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 Provisions, shall contract
with an 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 (provided, that if the
Operating Adviser has not responded to such request for consent within 15
days of notice of such proposed Independent Contractor, the Operating
Adviser will be deemed to have consented thereto; provided, however, that
with respect to any single event of appointment of an affiliated
Independent Contractor, the Operating Adviser will have the right to
withhold its consent to successive proposals for such appointment for a
period of up to 60 days after its first notice of a proposed affiliated
Independent Contractor and thereafter, the consent of the Operating
Adviser will no longer be required) 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 either 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 tax upon
REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer
determines that the after-tax net income or earnings with respect to such REO
Property will maximize the net recovery from the REO Property to the
Certificateholders. The Special Servicer shall notify the Trustee 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
Trustee with all information for the Trustee to file the necessary tax returns
in connection therewith and (iii) upon request by the Trustee, pay from such
account to the Trustee the amount of the applicable tax. The Trustee 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 ten 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) Directly Operate, other than through an Independent
Contractor, or allow any other Person to Directly 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 REMIC I, 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 "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 either 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 (or internal valuation in
accordance with the procedures specified in Section 6.8) and (iii) the Special
Servicer shall not bid less than the fair market value set forth in such
Appraisal. Neither the Seller nor the Depositor may purchase REO Property at a
price in excess of the fair market value thereof. In addition, the Special
Servicer shall sell the REO Property at the earliest practicable commercially
reasonable time on commercially reasonable terms, taking into account market
conditions and legal and regulatory requirements.
(b) Within 30 days of the sale of the REO Property, the Special
Servicer shall provide to the Trustee 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 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.
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
Trustee (the cost of which shall be an expense of the Trust) take any action
that could result in the failure of either 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 and
Class R-II 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 Master Servicer and the
Trustee on or before the Report Date occurring in March of each year, commencing
in March 2002, 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 March 15 of each year, commencing in March 15, 2002, 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 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 a Rating Agency Confirmation. 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.
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 (provided, that if the Operating Adviser has not responded to
such request for consent within 15 days of notice of such proposed successor
Special Servicer, the Operating Adviser will be deemed to have consented
thereto; provided, further, however, that with respect to any single event of
succession of the Special Servicer, the Operating Adviser will have the right to
withhold its consent to successive proposals for a successor Special Servicer
for a period of up to 60 days after its first notice of a proposed successor and
thereafter, the consent of the Operating Adviser will no longer be required),
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.
The Special 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 Special Servicer or Sub-Servicers (as provided in
Section 9.3) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Special Servicer hereunder or (B) assign and
delegate all of its duties hereunder. In the case of any such assignment and
delegation in accordance with the requirements of clause (A) of this Section,
the Special Servicer shall not be released from its obligations under this
Agreement. In the case of any such assignment and delegation in accordance with
the requirements of clause (B) of this Section, the Special Servicer shall be
released from its obligations under this Agreement, except that the Special
Servicer shall remain liable for all liabilities and obligations incurred by it
as the Special Servicer hereunder prior to the satisfaction of the following
conditions: (i) the Special Servicer gives the Depositor, the Master 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 Special 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.
Notwithstanding the above, the Special Servicer may appoint Sub-Servicers in
accordance with Section 9.3 hereof.
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 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.
(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 and the Master Servicer
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 or the Master 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 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 and the Master Servicer if a claim is made by a
third party entitling the Special Servicer to indemnification hereunder,
whereupon the Trustee, with respect to those claims related to willful
misfeasance, bad faith or negligence in the performance of its duties hereunder,
or the Master Servicer, with respect to those claims related to willful
misfeasance, bad faith or negligence in the performance of its duties hereunder,
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 Master
Servicer shall not affect any rights the Special Servicer may have to
indemnification hereunder or otherwise, unless the interest of the Trustee or
the Master Servicer 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 or the Master
Servicer pursuant to this paragraph to the Special Servicer shall be paid from
the Trustee's or the Master Servicer's, as the case may be, 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 or the Master Servicer shall be reimbursed by the party so
paid if a court of competent jurisdiction makes a final judgment that the
conduct of the Trustee or the Master Servicer was not culpable or the
indemnified party is found to have acted with willful misfeasance, bad faith or
negligence.
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 attorneys' 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 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
Special Servicer shall assume the defense of any such claim 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 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 Depositor, the Master Servicer and any director,
officer, employee or agent or Controlling Persons of the Trustee, 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 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 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 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 Depositor or the Master Servicer, 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 Special
Servicer shall not affect any rights the Trust or the Trustee, 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. 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 Special Servicer shall indemnify and hold harmless the Trust
and the Trustee, and each of its respective directors, each of its officers,
employees, agents and any Controlling Persons of the Trustee from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Trust, the Trustee or any such director, officer,
employees, agents or such Controlling Persons 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 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 or any such director, officer, employee, agent or Controlling
Persons for any legal and other expenses reasonably incurred by the Trust, the
Trustee or any such director, officer, employee, agent or Controlling Persons 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 Special Servicer furnished to the Depositor by or on
behalf of the Special Servicer specifically for inclusion therein. The Trustee
shall immediately notify the Special Servicer if a claim is made by a third
party with respect to this Section 9.24(c) entitling the Trust or the Trustee,
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 Special Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Trustee) 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 Special Servicer shall not affect any rights
the Trust and the Trustee may have to indemnification under this Section
9.24(c), 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 resignation or termination of the Special
Servicer and the Trustee.
(d) 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 Master
Servicer and Special Servicer" of the Prospectus Supplement.
SECTION 9.25 [RESERVED]
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The Special
Servicer or any agent of the Special Servicer 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.
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 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 either 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 either
REMIC to take any action that would (i) endanger the status of either REMIC as a
REMIC under the Code or (ii) subject to Section 9.14(e), result in the
imposition of a tax upon either 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 Section 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 (and final
distribution to the Certificateholders) or, (B) the disposition of all REO
Property in respect of any Specially Serviced Mortgage Loan (and final
distribution to the Certificateholders), (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 when due that is
required to be remitted to the Trustee, the Master Servicer or the Depositor
under the terms of this Agreement, (ii) the Special Servicer has failed to
deposit into any account any amount required to be so deposited or remitted
under the terms of this Agreement which failure continues unremedied for two (2)
Business Days following the date on which such deposit or remittance was first
required to be made; (iii) the Special Servicer has failed to duly observe or
perform in any material respect any of the other covenants or agreements of the
Special Servicer set forth in this Agreement, and the Special Servicer has
failed to remedy such failure 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 Depositor or the Trustee; 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, and the
Certificateholders would not be materially and adversely affected thereby, 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 Special Servicer has breached a representation or
warranty herein that materially and adversely affects the interest of any Class
of Certificates, and has failed to cure such breach within thirty (30) days
after notice of such breach, requiring the same to be remedied, shall have been
given to the Special Servicer by the Depositor or the Trustee, 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 may 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; (v) [reserved]; (vi) [reserved]; (vii) S&P or Fitch advises that
the continuation of the Special Servicer in such capacity will result in a
downgrade, qualification or withdrawal of the then-current ratings of the
Certificates; (viii) 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
sixty (60) days; (ix) 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 (x) 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. The Operating Adviser
shall pay any costs and expenses incurred by the Trust in connection with the
removal and appointment of a Special Servicer (unless such removal is based on
any of the events or circumstances set forth in Section 9.30(b)).
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 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 Section 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.
(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 Master Servicer 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 Master Servicer 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 Master Servicer 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 Master
Servicer in effecting the termination of the Special Servicer's responsibilities
and rights hereunder as Special Servicer including, without limitation,
providing the Master Servicer all documents and records in electronic or other
form reasonably requested by it to enable the successor Special Servicer
designated by the Master Servicer 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.
(c) If the Special Servicer receives a written notice of termination
pursuant to clause (ii) of Section 9.30(a) relating solely to an event set forth
in Section 9.30(b)(vii), and if the Special Servicer provides the Trustee with
the appropriate "request for proposal" materials within five Business Days after
receipt of such written notice of termination, then the Trustee shall promptly
thereafter (using such "request for proposal" materials provided by the Special
Servicer) solicit good faith bids for the rights to be appointed as Special
Servicer under this Agreement from at least three Qualified Bidders or, if three
Qualified Bidders cannot be located, then from as many persons as the Trustee
can determine are Qualified Bidders. At the Trustee's request, the Special
Servicer shall supply the Trustee with the names of Persons from whom to solicit
such bids. In no event shall the Trustee be responsible if less than three
Qualified Bidders submit bids for the right to service the Mortgage Loans under
this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Special
Servicer, and to agree to be bound by the terms hereof, not later than 60 days
after termination of the Special Servicer hereunder. The Trustee shall select
the Qualified Bidder with the highest cash bid (or such other Qualified Bidder
as the Master Servicer may direct) that is also acceptable to the Operating
Adviser (the "Successful Bidder") to act as successor Special Servicer
hereunder, provided that the Trustee shall have received Rating Agency
Confirmation from each Rating Agency; provided, further, however, that with
respect to any single event of succession of the Special Servicer, the Operating
Adviser will have the right to withhold its consent to successive proposals for
a successor Special Servicer for a period of up to 60 days after its first
notice of a proposed successor and thereafter, the consent of the Operating
Adviser will no longer be required. If no bidder is acceptable to the Operating
Adviser, the Operating Adviser shall appoint the successor Special Servicer
after consultation with the Controlling Class, provided that the successor
Special Servicer so appointed must be bound by the terms of this Agreement and
there must be delivered a Rating Agency Confirmation in connection with such
appointment. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Special Servicer pursuant to the terms hereof not later
than 60 days after the termination of the Special Servicer hereunder, and in
connection therewith to deliver the amount of the Successful Bidder's cash bid
to the Trustee by wire transfer of immediately available funds to an account
specified by the Trustee no later than 10:00 a.m. New York City time on the date
specified for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing right
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Special Servicer
the amount of such cash bid received from the Successful Bidder (net of
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Special Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder. All expenses incurred by the Master Servicer or the
Trustee in connection with such servicing transfer shall be paid by the Special
Servicer, and if not paid by the Special Servicer being terminated upon demand,
by the Trust Fund. In addition, such arrangement with the Special Servicer shall
be subject to any other requirements of the Master Servicer or the Trustee as
may be agreed upon with the Special Servicer.
(f) If the Successful Bidder has not entered into this Agreement as
successor Special within sixty (60) days after the termination of the Special
Servicer hereunder or no Successful Bidder was identified within such 60-day
period, the Trustee shall have no further obligations under Section 9.31(c) and
the Master Servicer may act or may select another successor to act as Special
Servicer hereunder in accordance with Section 9.31(b).
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced Mortgage Loan,
shall provide to the Master Servicer on or prior to the Determination Date for
each month, a Special Servicer Monthly Report substantially in the form of
Exhibit O and the CMSA Reports required to be prepared by the Special Servicer
and delivered to the Master Servicer or in such electronic format as is mutually
acceptable to the Master Servicer and the Special Servicer. 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 Operating Adviser and the Master Servicer no later than the tenth
Business Day following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Master Servicer or the
Trustee at the reasonable request in writing of the Master Servicer or Trustee,
any information in its possession with respect to the Specially Serviced
Mortgage Loans which the Master Servicer or the Trustee, as the case may be,
shall require in order for the Master Servicer or Trustee 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 Special 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 (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. Not
later than 20 days prior to the Report Date occurring in July of each year, the
Special Servicer (in the case of Specially Serviced Mortgage Loans) shall
deliver to the Trustee, the Placement Agent, either Underwriter, the Rating
Agencies, any Operating Adviser and the Depositor those reports it is required
to deliver pursuant to Section 8.14.
(f) The Special Servicer shall deliver to the Master Servicer, 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 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 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) to
the Operating Adviser.
(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 (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.
(a) The Special Servicer shall furnish on a timely basis such
reports, certifications, and information as are reasonably requested by the
Master Servicer or Trustee 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 either REMIC
Pool or (ii) expose the Special Servicer, the Trust 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
(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 if the Mortgage Loan is not in
default or default with respect thereto is not reasonably foreseeable 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 a "significant modification" for purposes of Treasury
Regulations Section 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) Any of (i) the Master Servicer, (ii) the Special Servicer, (iii)
any holder of Certificates evidencing a majority interest in the Controlling
Class and (iv) the Seller, in that order, has the right to purchase from the
Trust, at the applicable Purchase Price, those Specially Serviced Mortgage Loans
or defaulted Mortgage Loans that are at least sixty (60) days delinquent and
which the Special Servicer has determined, in its reasonable good faith
judgment, in accordance with the Servicing Standard, will become the subject of
foreclosure proceedings (other than any such Mortgage Loan that it determines,
in its reasonable good faith judgment, in accordance with the Servicing
Standard, is in default to avoid a prepayment restriction). In addition, the
Seller, has the right to purchase from the Trust, at the applicable Purchase
Price, Mortgage Loans that are in default or as to which default is reasonably
foreseeable. If Seller purchases a Mortgage Loan from the Trust that is not in
default or as which default is not imminent and such purchase results in a tax
on prohibited transactions as defined in Code Section 860F(a)(2) or a tax on
prohibited contributions set forth in Section 860G(d) of the Code, the Seller
shall indemnify the Trust for such tax unless such indemnification shall itself
result in a tax.
The Special Servicer may, after providing notice to the Operating
Adviser and the Trustee, 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 not otherwise purchased
pursuant to the prior paragraph (other than any such Mortgage Loan that it
determines, in its reasonable good faith judgment, in accordance with the
Servicing Standard, is in default to avoid a prepayment restriction), if and
when the Special Servicer determines, consistent with the Servicing Standard,
that such a sale would be in the best economic interests of the Trust. 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 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 in
a commercially reasonable manner for a period of not less than thirty days.
Unless the Special Servicer determines that acceptance, in
accordance with the Servicing Standard, of any offer would not be in the best
economic interests of the Trust, the Special Servicer shall accept the highest
cash offer received from any Person that constitutes a fair price (which may be
less than the Purchase Price) for such Defaulted Mortgage Loan or REO Property.
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. 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, 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, 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) provided, that if the Operating Adviser has not
responded to such request for consent within 15 days of notice of such proposed
sale, the Operating Adviser will be deemed to have consented thereto; provided,
further, however, that with respect to any specific Defaulted Mortgage Loan or
REO Property, the Operating Adviser will have the right to withhold its consent
to successive proposals for a sale less than 90% of the appraised value for a
period of up to 60 days after its first notice of a proposed sale and
thereafter, the consent of the Operating Adviser will no longer be required. The
Special Servicer, after notice to the Operating Adviser, if any, shall determine
no later than six months prior to the end of the three-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 is required to request that the Trustee make
a determination as to whether such bid constitutes a fair price. Upon request of
the Special Servicer to make such a determination, the Trustee will, within a
reasonable period of time (but in no event more than 10 Business Days), make
such a determination based solely and conclusively upon an Appraisal (not more
than twelve months old) 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 three-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
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 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) As of the Closing Date, the initial Operating Adviser is PPM
Finance, Inc. The Controlling Class shall give written notice to the Trustee,
the Master Servicer and the Special Servicer of the appointment of any
subsequent Operating Adviser (in order to receive notices hereunder).
(c) Until an Operating Adviser is elected by Holders of Certificates
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class 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 Trustee, of more than 50% of the
Certificate Balance of the Holders of the Certificates of the then Controlling
Class.
(e) [Reserved.]
(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 proposed 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 proposal to bring an REO Property into compliance with
Environmental Laws; and
(v) any acceptance of substitute or additional collateral for a
Mortgage Loan.
In addition to the rights described above, the Operating Advisor
will also have those other rights as set forth in this Agreement, including, but
not limited to, those rights described under the definition of "Qualifying
Substitute Mortgage Loan"; Sections 7.6(a), (b) and (e) (relating to the
approval of a successor Trustee); Sections 8.21, 8.23 and 8.29(b) and (d)
(relating to the approval of a successor Master Servicer); Section 9.14(d)(v)
(consent to an Independent Contractor if it is an affiliate of the Special
Servicer); Sections 9.21(b) and 9.31(d) (consent to a successor Special
Servicer); Section 9.30(c) (removal of the Special Servicer); and Section
9.36(a) (consent to a sale of an REO Property or Specially Serviced Mortgage
Loan for less than 90% of the related appraised value).
The Trustee will provide written notice to the Operating Adviser of
any of the following events within 5 Business Days of it becoming aware of the
same: (i) an Event of Default of the Master Servicer, (ii) a resignation of the
Master Servicer, (iii) any proposed assignment by the Master Servicer of its
rights and obligations under this Agreement and (iv) any resignation or proposed
assignment by the Trustee of its rights and obligations under this Agreement.
Upon its receipt of notice of the foregoing events, the Operating
Advisor shall have the right to actively participate with the parties hereto and
the Rating Agencies in connection with the replacement of the Master Servicer or
Trustee, as applicable.
In addition, the Operating Adviser may direct the Trustee to remove
the Special Servicer at any time, with or without cause, 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 Rating Agency Confirmation
from each Rating Agency. The Operating Adviser shall pay any costs and expenses
incurred by the Trust in connection with the removal and appointment of a
Special Servicer (unless such removal is based on any of the events or
circumstances set forth in Section 9.30(b)). Furthermore, with respect to any
Required Appraisal Loan, the Operating Adviser shall be entitled to request the
Special Servicer to obtain, at the cost and expense of the Operating Adviser, an
updated Appraisal to be used to calculate any Appraisal Reductions.
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 created
hereby (other than the obligation of the Trustee, to make payments to the
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 final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders) 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 notice of the date
when the aggregate Principal Balance of the Mortgage Loans is less than or equal
to one percent (1%) of the initial aggregate Principal Balance of the Mortgage
Loans as of the Cut-Off Date. The Trustee shall promptly forward such notice to
the Seller, the Special Servicer, the Master Servicer, Depositor 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 Trustee'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 Seller, 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 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
Master 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. The Trustee shall
consult with the Placement Agent and each Underwriter 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 the Placement Agent or either Underwriter or an Affiliate of the
Placement Agent or either Underwriter 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 Seller, 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 Seller, 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 II Certificates such Holders may terminate REMIC I (which will
in turn result in the termination of REMIC II) 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
Rating Agencies, the Class R-I and REMIC II 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 and
REMIC II Certificates will be made, and upon presentation and surrender of the
Class R-I and REMIC II 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 and REMIC II 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 and REMIC II Certificates.
Upon any such termination, the duties of the Certificate Registrar with respect
to the Class R-I and REMIC II Certificates shall terminate and the Trustee shall
terminate, or request the Master Servicer to terminate, the Certificate Account
and the Distribution Account and any other account or fund maintained with
respect to the Certificates, subject to the Trustee's obligation hereunder to
hold all amounts payable to the Class R-I and REMIC II 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 and REMIC II 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 and REMIC II Certificateholders to surrender their
certificates evidencing the Class R-I and REMIC II Certificates for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice any Class R-I and REMIC II Certificates shall not have
been surrendered for cancellation, the Certificate Registrar may take
appropriate steps to contact the remaining Class R-I and REMIC II
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 and REMIC II
Certificates shall not have been surrendered for cancellation, the Trustee
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 and
REMIC II 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 Trustee 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 subsequently receives 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 and the Trustee 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 either
REMIC under the REMIC Provisions or (ii) cause either 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 Class R-I and REMIC II Certificates the Trustee on behalf
of REMIC I and REMIC II shall designate the date of adoption of a plan of
complete liquidation of REMIC I and REMIC II, and shall specify such date
in the final federal income tax return of each REMIC Pool;
(ii) On or after the date of adoption of such a plan of complete
liquidation and at or prior to the time of making of the final payment on
the Class R-I and REMIC II 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; and
(iii) At the time of the making of the final payment on the
Certificates and within 90 days of the date of adoption of the plan of
complete liquidation, the Trustee 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 final payment of REMIC
I Regular Interests and (B) to the Holders of the Class R-II Certificates
all remaining assets of REMIC II (in each case other than cash retained to
meet claims), and the Trust shall terminate at that time.
(b) By their acceptance of the Class R-I or Class R-II Certificates,
respectively, the Holders thereof hereby (i) authorize the Trustee to take such
action as may be necessary to effect 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 and
Class R-II Certificateholders, respectively.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
The provisions of this Article XI shall apply to each of the Holders
of REMIC Regular Certificates and Holders of Residual Certificates 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 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,
within three days after receipt by the Certificate Registrar of a request by the
Trustee, in writing, a list, in such form as the Trustee 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 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.
(c) Every Holder, by receiving and holding a Certificate, agrees
with the Depositor, the Certificate Registrar, the Master Servicer and the
Trustee that neither the Depositor, the Certificate Registrar, 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.
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 and the Depositor and the, 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
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 or
the Depositor in reliance thereon, whether or not notation of such action is
made upon such Certificate.
ARTICLE XII
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool.
SECTION 12.1 REMIC ADMINISTRATION AND GRANTOR TRUST ADMINISTRATION.
(a) An election will be made by the Trustee 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, 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 REMIC I. The Trustee shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in any of the
REMICs other than REMIC I Regular Interests, the REMIC Regular Certificates and
the Residual Certificates.
An election will be made by the Trustee 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 Certificates are
issued. For purposes of such election, the Class A-1, Class A-2, Class A-3,
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 shall be designated
as the "regular interests" in REMIC II and the Class R-II Certificates shall be
designated as the sole class of "residual interests" in REMIC II.
The Trustee shall treat the Seller Partial Prepayment Premium
Obligations and proceeds thereof held in the Certificate Account or Distribution
Account as a "grantor trust" under the Code, and the provisions hereof shall be
interpreted consistently with this intention.
(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 Trustee 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.
(d) The Trustee 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 Trustee, 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 Trustee
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.
The Trustee shall furnish or cause to be furnished to the Holders of
Certificates who receive the Seller Partial Prepayment Premiums with respect to
the Seller Partial Prepayment Premium Obligations and shall file or cause to be
filed with the Internal Revenue Service together with Form 1041 or such other
form as may be applicable for grantor trust reporting, the amount thereof, at
the time or times and in the manner required by the Code.
(e) The Trustee 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 and filing such returns
shall be borne by the Trustee, except that if additional state tax returns are
required to be filed in more than three states, the Trustee 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 Trustee or its
designee such information with respect to the Trust or either 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
Trustee to enable it to perform its obligations under this subsection, and the
Trustee shall be entitled to conclusively rely on such information in the
performance of its obligations hereunder. The Depositor shall indemnify the
Trust and the Trustee 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
Trustee and the Depositor for any liability or assessment against the Trustee,
the Depositor or either REMIC Pool and any expenses incurred in connection with
such liability or assessment (including attorneys' fees) resulting from any
error in any of such tax or information returns resulting from errors in the
information or calculations provided by the Master Servicer or the Special
Servicer (but not due to errors in information supplied by the Borrower), 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 Trustee shall
indemnify the Master Servicer, the Special Servicer, the Depositor or either
REMIC Pool for any expense incurred by the Master Servicer, the Special
Servicer, the Depositor and either 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
Trustee. 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
either REMIC Pool under this Section 12.1(e). Any such indemnification shall
survive the resignation or termination of the Master Servicer, the Trustee or
the Special Servicer, or the termination of this Agreement.
(f) The Trustee 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 Trustee 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 Trustee 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 Trustee as the Depositor may reasonably
request in writing. Moreover, the Trustee 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 Trustee be required by applicable law and shall
prepare and disseminate to Certificateholders Forms 1099 (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law. The Trustee 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 the
Class R-I and Class R-II Certificates, respectively (or of the greatest
percentage of such Class R-I and Class R-II 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 Trustee 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 Trustee as their agent
and attorney in fact. If the Code or applicable regulations prohibits the
Trustee 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 Trustee 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 Trustee 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 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
Master Servicer 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 Master Servicer, the Special Servicer, and the
Holders of Residual Certificates shall not take any action or fail to take any
action or cause either 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 either REMIC Pool as a REMIC or
(ii) result in the imposition of a tax upon either REMIC Pool (including but not
limited to the tax on prohibited transactions as defined in Code Section
860F(a)(2), but excluding the tax on net income from foreclosure property
incurred pursuant to Section 9.14(e)) unless the Trustee has 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 or the Holders of the Residual Certificates to
undertake such action.
(k) In the event that any tax is imposed on REMIC I or REMIC II,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I or REMIC II after the Startup Day pursuant to Section 860G(d) of the
Code, and any other tax imposed by the Code or any applicable provisions of
state or local tax laws (other than a tax on net income from foreclosure
property 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 Trustee, 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 of or results from a breach by the Master
Servicer of any of its obligations under this Agreement; and (iv) the Trust in
all other instances. Any tax on net income from foreclosure property 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 Trustee out of amounts on deposit in the Distribution Account.
(l) The Trustee 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 amount of each REMIC
Pool's investments to show that such REMIC Pool has complied with the REMIC
Provisions.
(m) Neither the Trustee, the Master Servicer nor the Special
Servicer shall enter into any arrangement by which either REMIC Pool will
receive a fee or other compensation for services.
(n) In order to enable the Trustee to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Trustee within ten (10) days after the Closing Date all information or data that
the Trustee 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 Trustee or its designee, promptly
upon request therefor, any such additional information or data within the
Depositor's possession or knowledge that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties as set
forth herein. The Trustee 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 and each REMIC Pool for any losses, liabilities, damages, claims,
expenses (including attorneys' fees) or assessments against the Trustee and each
REMIC Pool arising from any errors or miscalculations of the Trustee 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 Trustee (but not
resulting from the methodology employed by the Trustee) on a timely basis and
such indemnification shall survive the termination of this Agreement and the
termination or resignation of the Trustee.
The Trustee 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 Trustee 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.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" for each Class of Certificates
representing a regular interest in REMIC II and for each Class of REMIC I
Regular Interests is the Final Rated Distribution Date.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither the
Trustee, 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 either REMIC Pool, (iii) the termination of
either 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 either 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 either REMIC Pool as a
REMIC or of the REMIC I Regular Interests or the REMIC Regular 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 either REMIC Pool (except pursuant to the provisions
of this Agreement) or (D) cause either 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 Master
Servicer nor the Special Servicer shall permit any modification (other than a
modification that adds, deletes, or alters customary accounting or financial
covenants) of a Mortgage Loan or a Specially Serviced Mortgage Loan which is not
in default or as to which a default is not reasonably foreseeable unless (i) the
Trustee, the Special Servicer and the Master Servicer has determined (and the
Special Servicer or Master Servicer, as applicable, may rely upon 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 such 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
Section 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 either 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 the Trustee of its
duties and obligations set forth herein, the Trustee shall be liable to the
REMIC Pools and the Holders of the Certificates for any and all losses, claims,
damages, liabilities or expenses ("Losses") resulting from such negligence and
relating to the Certificates; provided, however, that the Trustee shall not be
liable for any such Losses attributable to the action or inaction of the Master
Servicer, the Special Servicer, the Depositor or the Holders of such
Certificates nor for any such Losses 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 Depositor or such Holders of
the Certificates on which the Trustee has relied. The foregoing shall not be
deemed to limit or restrict the rights and remedies of the Holders of the
Certificates now or hereafter existing at law or in equity. The Trustee 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, Prospectus
Supplement or the Prospectus, 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 either REMIC Pool as a REMIC or
of the Grantor Trust as a grantor trust without the consent of 100% of the
Certificateholders or (B) adversely affect the status of either REMIC Pool as a
REMIC or of the Grantor Trust as a grantor trust. 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 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 a Rating Agency Confirmation from each Rating Agency (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 or the Trustee'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 either REMIC Pool as a REMIC
or of the Grantor Trust as a grantor trust for federal income tax purposes (as
evidenced by a Nondisqualification Opinion) without the consent of 100% of the
Certificateholders (including the Class R-I and Class R-II Certificateholders);
provided that no such amendment may modify Section 8.18 of this Agreement
without Rating Agency Confirmation. 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.
(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 Xxxx Xxxxxx Capital
I Inc., 0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxx, with a copy to: Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; (B) in the case
of the Trustee at the Corporate Trust Office; (C) in the case of the Master
Servicer, CapMark Services, L.P., 000 Xxxxxxxxx Xxxxxx Xxxxxx X.X., Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000, Attention: Portfolio Manager--Xxxxxx Xxxxxxx Xxxx Xxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2001-PPM,
and the Legal Department; (D) in the case of the Special Servicer, PPM Finance,
Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxx Xxxxxxxxx; 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.
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 AND OPERATING
ADVISER.
(a) The Trustee 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 Initial 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 or
the Trustee pursuant to this Agreement;
(v) the appointment of any successor to the Master Servicer, 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
(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 Fitch, to:
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Commercial Mortgage Surveillance Manager
If to S&P, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Commercial Mortgage Surveillance Manager
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 and the
Depositor any other information as reasonably requested by the Rating Agencies
and the Depositor, and shall deliver to the Special Servicer each of the reports
required to be delivered by the Master Servicer to the Special Servicer pursuant
to the terms of this Agreement. If the Master Servicer or Special Servicer
cannot obtain insurance at commercially reasonable rates, the Master Servicer
shall deliver to the Rating Agencies' notice of such fact identifying each
Mortgaged Property, the type of insurance not maintained and the rationale for
determining such insurance was not available at commercially reasonable rates.
The Trustee and 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 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.
(f) The Trustee will provide written notice to the Operating Adviser
of any of the following events within 5 Business Days of it becoming aware of
the same: (i) an Event of Default of the Master Servicer, (ii) a resignation of
the Master Servicer, (iii) any proposed assignment by the Master Servicer of its
rights and obligations under this Agreement and (iv) any proposed assignment by
the Trustee of its rights and obligations under this Agreement.
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 (4) the Mortgage Loan Purchase Agreement;
(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 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 parties hereto
acknowledge that on the Closing Date the Seller is paying the ongoing monitoring
fees of the Rating Agencies relating to the rating of the Certificates and that
no monitoring fees are payable subsequent to the Closing Date in respect of the
rating of the Certificates.
SECTION 13.15 [RESERVED]
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer and the Trustee 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 XXXX XXXXXX CAPITAL I
INC., as Depositor
By: ___________________________________
Name:
Title:
CAPMARK SERVICES, L.P.,
as Master Servicer
By: PEARL MORTGAGE, INC.,
its general partner
By: _______________________________
Name: Xxxx X. Xxxxxx
Title: Vice President
PPM FINANCE, INC., as Special Servicer
By: ___________________________________
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
By: ___________________________________
Name:
Title:
XXXXX FARGO BANK MINNESOTA, N.A., as
Trustee
By: ___________________________________
Name: Xxxx X. Xxxx
Title: Vice President
[FOR DOCUMENTS EXECUTED IN NEW YORK STATE]
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of January in the year 2001, before me, the
undersigned, personally appeared ____________________________, personally known
to me or proved to me on the basis of satisfactory evidence to be the
individual(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
capacity(ies), and that his/her/their signature(s) on the instrument, the
individual(s), or the person on behalf of which the individual(s) acted,
executed the instrument.
________________________________________
[Signature and Office of individual
taking acknowledgment]
[FOR DOCUMENTS EXECUTED IN NEW YORK STATE]
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of January in the year 2001, before me, the
undersigned, personally appeared ____________________________, personally known
to me or proved to me on the basis of satisfactory evidence to be the
individual(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
capacity(ies), and that his/her/their signature(s) on the instrument, the
individual(s), or the person on behalf of which the individual(s) acted,
executed the instrument.
________________________________________
[Signature and Office of individual
taking acknowledgment]
[FOR DOCUMENTS EXECUTED IN ANOTHER STATE]
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of January in the year 2001, before me, the
undersigned, personally appeared ____________________________, personally known
to me or proved to me on the basis of satisfactory evidence to be the
individual(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
capacity(ies), and that his/her/their signature(s) on the instrument, the
individual(s), or the person on behalf of which the individual(s) acted,
executed the instrument, and that such individual made such appearance before
the undersigned in the _________________________ [insert the city or other
political subdivision and the state or county or other place the acknowledgment
was taken].
________________________________________
[Signature and Office of individual
taking acknowledgment]
[FOR DOCUMENTS EXECUTED IN ANOTHER STATE]
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of January in the year 2001, before me, the
undersigned, personally appeared ____________________________, personally known
to me or proved to me on the basis of satisfactory evidence to be the
individual(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
capacity(ies), and that his/her/their signature(s) on the instrument, the
individual(s), or the person on behalf of which the individual(s) acted,
executed the instrument, and that such individual made such appearance before
the undersigned in the _________________________ [insert the city or other
political subdivision and the state or county or other place the acknowledgment
was taken].
________________________________________
[Signature and Office of individual
taking acknowledgment]
[FOR DOCUMENTS EXECUTED IN ANOTHER STATE]
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of January in the year 2001, before me, the
undersigned, personally appeared ____________________________, personally known
to me or proved to me on the basis of satisfactory evidence to be the
individual(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
capacity(ies), and that his/her/their signature(s) on the instrument, the
individual(s), or the person on behalf of which the individual(s) acted,
executed the instrument, and that such individual made such appearance before
the undersigned in the _________________________ [insert the city or other
political subdivision and the state or county or other place the acknowledgment
was taken].
________________________________________
[Signature and Office of individual
taking acknowledgment]
--------------------------------------------------------------------------------
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.,
AS DEPOSITOR,
AND
CAPMARK SERVICES, L.P.,
AS MASTER SERVICER,
AND
PPM FINANCE, INC.,
AS SPECIAL SERVICER,
AND
XXXXX FARGO BANK MINNESOTA, N.A.,
AS TRUSTEE
-------------------------------------------
EXHIBITS AND SCHEDULE TO
POOLING AND SERVICING AGREEMENT
DATED AS OF JANUARY 1, 2001
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-PPM
--------------------------------------------------------------------------------
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 SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, 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 TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
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.
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2001-PPM
INITIAL PASS-THROUGH RATE: 5.98% MASTER SERVICER: CAPMARK SERVICES,
L.P.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF JANUARY 1, 2001 SPECIAL SERVICER: PPM FINANCE, INC.
CUT-OFF DATE: JANUARY 1, 2001 TRUSTEE: XXXXX FARGO BANK
MINNESOTA, N.A.
CLOSING DATE: JANUARY 30, 2001
CUSIP NO. 61746W ER 7
FIRST DISTRIBUTION DATE: FEBRUARY 00, XX. X-0-0
0000
XXXXXXXXX CERTIFICATE BALANCE OF THE
CLASS A-1 CERTIFICATES AS OF THE CLOSING
DATE: $127,296,000.
CERTIFICATE BALANCE OF THIS CLASS A-1
CERTIFICATE AS OF THE CLOSING DATE:
$127,296,000.
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. 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 Xxxx Xxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, 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.
This 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 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
Xxxx Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2001-PPM 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 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 Trustee 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 Trustee 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.
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 Master Servicer, the Special
Servicer 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 Master Servicer, the
Special Servicer, 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 Trustee 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Certificate Registrar
By:____________________________________
AUTHORIZED OFFICER
Dated: January __, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
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 Under Uniform Gifts to Minors
rights 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.
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.
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
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 SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, 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 TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
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.
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2001-PPM
INITIAL PASS-THROUGH RATE: 6.40% MASTER SERVICER: CAPMARK SERVICES,
L.P.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF JANUARY 1, 2001 SPECIAL SERVICER: PPM FINANCE, INC.
CUT-OFF DATE: JANUARY 1, 2001 TRUSTEE: XXXXX FARGO BANK
MINNESOTA, N.A.
CLOSING DATE: JANUARY 30, 2001
CUSIP NO. 61746W ES 5
FIRST DISTRIBUTION DATE: February 00, XX. X-0-0
0000
XXXXXXXXX CERTIFICATE BALANCE OF THE
CLASS A-2 CERTIFICATES AS OF THE CLOSING
DATE: $189,000,000.
CERTIFICATE BALANCE OF THIS CLASS A-2
CERTIFICATE AS OF THE CLOSING DATE:
$189,000,000.
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. 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 Xxxx Xxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, 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.
This 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 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
Xxxx Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2001-PPM 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 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 Trustee 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 Trustee 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.
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 Master Servicer, the Special
Servicer 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 Master Servicer, the
Special Servicer, 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 Trustee 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Certificate Registrar
By:____________________________________
AUTHORIZED OFFICER
Dated: January ___, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
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 Under Uniform Gifts to Minors
rights 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.
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.
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-3
FORM OF CLASS A-3 CERTIFICATE
THIS CLASS A-3 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, 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-3 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 TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
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.
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2001-PPM
INITIAL PASS-THROUGH RATE: 6.54% MASTER SERVICER: CAPMARK SERVICES,
L.P.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF JANUARY 1, 2001 SPECIAL SERVICER: PPM FINANCE, INC.
CUT-OFF DATE: JANUARY 1, 2001 TRUSTEE: XXXXX FARGO BANK
MINNESOTA, N.A.
CLOSING DATE: JANUARY 30, 2001
CUSIP NO. 61746W ET 3
FIRST DISTRIBUTION DATE: FEBRUARY 00, XX. X-0-0
0000
XXXXXXXXX CERTIFICATE BALANCE OF THE
CLASS A-3 CERTIFICATES AS OF THE CLOSING
DATE: $215,300,000.
CERTIFICATE BALANCE OF THIS CLASS A-3
CERTIFICATE AS OF THE CLOSING DATE:
$215,300.000.
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class A-3 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 Xxxx Xxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, 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.
This 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 Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-3 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Xxxx Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2001-PPM 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 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 Trustee 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 Trustee 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.
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 Master Servicer, the Special
Servicer 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 Master Servicer, the
Special Servicer, 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 Trustee 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Certificate Registrar
By:____________________________________
AUTHORIZED OFFICER
Dated: January __, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
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 Under Uniform Gifts to Minors
rights 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.
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.
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-4
FORM OF CLASS B CERTIFICATE
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, 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.
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 TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
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.
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-PPM
INITIAL PASS-THROUGH RATE: 6.87% MASTER SERVICER: CAPMARK SERVICES,
L.P.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF JANUARY 1, 2001 SPECIAL SERVICER: PPM FINANCE, INC.
CUT-OFF DATE: JANUARY 1, 2001 TRUSTEE: XXXXX FARGO BANK
MINNESOTA, N.A.
CLOSING DATE: JANUARY 30, 2001
CUSIP NO. 61746W EU 0
FIRST DISTRIBUTION DATE: FEBRUARY 15, NO. B-1
2001
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS B CERTIFICATES AS OF THE CLOSING
DATE: $15,589,000.
CERTIFICATE BALANCE OF THIS CLASS B
CERTIFICATE AS OF THE CLOSING DATE:
$15,589,000.
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. 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 Xxxx Xxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, 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.
This 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 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 Xxxx
Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2001-PPM 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 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 Trustee 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 Trustee 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.
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 Master Servicer, the Special
Servicer, 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 Master Servicer, the
Special Servicer, 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 Trustee 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Certificate Registrar
By:____________________________________
AUTHORIZED OFFICER
Dated: January ___, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
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 Under Uniform Gifts to Minors
rights 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.
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.
[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:
EXHIBIT A-5
FORM OF CLASS C CERTIFICATE
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, 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 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 WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
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 TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
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) JANUARY __, 2001, 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.]
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-PPM
INITIAL PASS-THROUGH RATE: 7.07000% MASTER SERVICER: CAPMARK SERVICES,
L.P.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF JANUARY 1, 2001 SPECIAL SERVICER: PPM FINANCE, INC.
CUT-OFF DATE: JANUARY 1, 2001 TRUSTEE: XXXXX FARGO BANK
MINNESOTA, N.A.
CLOSING DATE: JANUARY 30, 2001
CUSIP NO. [ ]
FIRST DISTRIBUTION DATE: FEBRUARY 15,
2001 ISIN NO. [ ]
NO. [ ]
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS C CERTIFICATES AS OF THE CLOSING
DATE: $17,148,000.
CERTIFICATE BALANCE OF THIS CLASS C
CERTIFICATE AS OF THE CLOSING DATE:
$[ ].
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. 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 Xxxx Xxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, 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.
This 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 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 Xxxx
Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2001-PPM 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 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 Trustee 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 Trustee 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.
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 Master Servicer, the Special
Servicer, 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 Master Servicer, the
Special Servicer, 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 Trustee 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Certificate Registrar
By:____________________________________
AUTHORIZED OFFICER
Dated: January __, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
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 Under Uniform Gifts to Minors
rights 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.
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.
[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:
EXHIBIT A-6
FORM OF CLASS D CERTIFICATE
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, 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 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 WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
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 TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
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) JANUARY __, 2001, 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.]
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-PPM
INITIAL PASS-THROUGH RATE: 7.21000% MASTER SERVICER: CAPMARK SERVICES,
L.P.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF JANUARY 1, 2001 SPECIAL SERVICER: PPM FINANCE, INC.
CUT-OFF DATE: JANUARY 1, 2001 TRUSTEE: XXXXX FARGO BANK
MINNESOTA, N.A.
CLOSING DATE: JANUARY 30, 2001
CUSIP NO. [ ]
FIRST DISTRIBUTION DATE: FEBRUARY 15,
2001
CINS NO. [ ]
AGGREGATE CERTIFICATE BALANCE OF THE NO. [ ]
CLASS D CERTIFICATES AS OF THE CLOSING
DATE: $5,456,000.
CERTIFICATE BALANCE OF THIS CLASS D
CERTIFICATE AS OF THE CLOSING DATE:
$[ ].
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. 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 Xxxx Xxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, 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.
This 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 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 Xxxx
Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2001-PPM 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 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 Trustee 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 Trustee 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.
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 Master Servicer, the Special
Servicer, 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 Master Servicer, the
Special Servicer, 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 Trustee 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Certificate Registrar
By:____________________________________
AUTHORIZED OFFICER
Dated: January __, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
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 Under Uniform Gifts to Minors
rights 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.
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.
[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:
EXHIBIT A-7
FORM OF CLASS E CERTIFICATE
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, 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 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 WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
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 TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
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) JANUARY __, 2001, 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.]
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-PPM
INITIAL PASS-THROUGH RATE: 7.83544% MASTER SERVICER: CAPMARK SERVICES,
L.P.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF JANUARY 1, 2001 SPECIAL SERVICER: PPM FINANCE, INC.
CUT-OFF DATE: JANUARY 1, 2001 TRUSTEE: XXXXX FARGO BANK
MINNESOTA, N.A.
CLOSING DATE: JANUARY 30, 2001
CUSIP NO. [ ]
FIRST DISTRIBUTION DATE: FEBRUARY 15, 2001
AGGREGATE CERTIFICATE BALANCE OF THE CLASS CINS NO. [ ]
E CERTIFICATES AS OF THE CLOSING DATE: NO. [ ]
$10,913,000.
CERTIFICATE BALANCE OF THIS CLASS E
CERTIFICATE AS OF THE CLOSING DATE:
$[ ].
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. 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 Xxxx Xxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, 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.
This 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 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 Xxxx
Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2001-PPM 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 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 Trustee 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 Trustee 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.
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 Master Servicer, the Special
Servicer, 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 Master Servicer, the
Special Servicer, 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 Trustee 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Certificate Registrar
By:____________________________________
AUTHORIZED OFFICER
Dated: January __, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
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 Under Uniform Gifts to Minors
rights 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.
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.
[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:
EXHIBIT A-8
FORM OF CLASS F CERTIFICATE
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, 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 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 WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
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 TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE, AND CERATIN
OTHER ASSETS.
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) JANUARY __, 2001, 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.]
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-PPM
INITIAL PASS-THROUGH RATE: 8.08544% MASTER SERVICER: CAPMARK SERVICES,
L.P.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF JANUARY 1, 2001 SPECIAL SERVICER: PPM FINANCE, INC.
CUT-OFF DATE: JANUARY 1, 2001 TRUSTEE: XXXXX FARGO BANK
MINNESOTA, N.A.
CLOSING DATE: JANUARY 30, 2001
CUSIP NO. [ ]
FIRST DISTRIBUTION DATE: FEBRUARY 15,
2001 CINS NO. [ ]
NO. [ ]
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS F CERTIFICATES AS OF THE CLOSING
DATE: $4,677,000.
CERTIFICATE BALANCE OF THIS CLASS F
CERTIFICATE AS OF THE CLOSING DATE:
$[ ].
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. 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 Xxxx Xxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, 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.
This 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 Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class F Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Xxxx
Xxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2001-PPM 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 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 Trustee 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 Trustee 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.
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 Master Servicer, the Special
Servicer 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 Master Servicer, the
Special Servicer, 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 Trustee 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Certificate Registrar
By:____________________________________
AUTHORIZED OFFICER
Dated: January __, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
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 Under Uniform Gifts to Minors
rights 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.
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.
[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:
EXHIBIT A-9
FORM OF CLASS G CERTIFICATE
THIS CLASS G CERTIFICATE DOES NOT CON