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NATIONSLINK FUNDING CORPORATION,
Depositor
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Mortgage Loan Seller
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Master Servicer
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Special Servicer
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REMIC Administrator
and
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Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of ------------ --, 199-
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$-------------------
Mortgage Pass-Through Certificates
Series 199_-_
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Section
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TABLE OF CONTENTS
Section
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
AND THE CERTIFICATES
1.01 Defined Terms
1.02 Certain Calculations in Respect of the Mortgage Pool
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
2.01 Conveyance of Mortgage Loans
2.02 Acceptance of REMIC I by Trustee
2.03 Mortgage Loan Seller's Repurchase of Mortgage Loans for Document Defects
and Certain Breaches of Representations and Warranties
2.04 Representations and Warranties of the Depositor
2.05 Representations and Warranties of the Mortgage Loan Seller
2.06 Representations and Warranties of the Master Servicer
2.07 Representations and Warranties of the Special Servicer
2.08 Representations and Warranties of the Trustee and the REMIC Administrator
2.09 Issuance of the Class R-I Certificates; Creation of the REMIC I Regular
Interests
2.10 Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by the
Trustee
2.11 Issuance of the REMIC II Certificates
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
3.01 Administration of the Mortgage Loans
3.02 Collection of Mortgage Loan Payments
3.03 Collection of Taxes, Assessments and Similar Items; Servicing Accounts;
Reserve Accounts
3.04 Certificate Account and Distribution Account
3.05 Permitted Withdrawals From the Certificate Account and the Distribution
Account
3.06 Investment of Funds in the Certificate Account and the REO Account
3.07 Maintenance of Insurance Policies; Errors and Omissions and Fidelity
Coverage
3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements; Subordinate
Financing
3.09 Realization Upon Defaulted Mortgage Loans
3.10 Trustee to Cooperate; Release of Mortgage Files
3.11 Servicing Compensation; Interest on Servicing Advances; Payment of Certain
Expenses; Obligations of the Trustee Regarding Back-up Servicing
Advances
3.12 Inspections; Collection of Financial Statements
3.13 Annual Statement as to Compliance
3.14 Reports by Independent Public Accountants
3.15 Access to Certain Information
3.16 Title to REO Property; REO Account
3.17 Management of REO Property
3.18 Sale of Mortgage Loans and REO Properties
3.19 Additional Obligations of the Master Servicer and the Special Servicer
3.20 Modifications, Waivers, Amendments and Consents
3.21 Transfer of Servicing Between Master Servicer and Special Servicer; Record
Keeping
3.22 Sub-Servicing Agreements
3.23 Designation of Special Servicer by the Majority Certificateholder of the
Controlling Class
3.24 Confidentiality
3.25 No Solicitation of Prepayments
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
4.01 Distributions on the Certificates
4.02 Statements to Certificateholders; Certain Reports by the Master Servicer
and the Special Servicer
4.03 P&I Advances
4.04 Allocation of Realized Losses and Additional Trust Fund Expenses to the
Sequential Pay Certificates
4.05 Deemed Distributions on, and Allocations of Realized Losses and Additional
Trust Fund Expenses to, the REMIC I Regular Interests
ARTICLE V
THE CERTIFICATES
5.01 The Certificates
5.02 Registration of Transfer and Exchange of Certificates
5.03 Book-Entry Certificates
5.04 Mutilated, Destroyed, Lost or Stolen Certificates
5.05 Persons Deemed Owners
5.06 Certification by Certificate Owners
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE REMIC ADMINISTRATOR
6.01 Liability of the Depositor, the Mortgage Loan Seller, the Master Servicer,
the Special Servicer and the REMIC Administrator
6.02 Merger, Consolidation or Conversion of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer or the REMIC
Administrator
6.04 Master Servicer, Special Servicer and REMIC Administrator Not to Resign
6.05 Rights of the Depositor and the Trustee in Respect of the Master Servicer,
the Special Servicer and the REMIC Administrator
ARTICLE VII
DEFAULT
7.01 Events of Default
7.02 Trustee to Act; Appointment of Successor
7.03 Notification to Certificateholders
7.04 Waiver of Events of Default
7.05 Additional Remedies of Trustee Upon Event of Default
ARTICLE VIII
CONCERNING THE TRUSTEE
8.01 Duties of Trustee
8.02 Certain Matters Affecting the Trustee
8.03 Trustee Not Liable for Validity or Sufficiency of Certificates or Mortgage
Loans
8.04 Trustee Own Certificates
8.05 Fees of Trustee; Indemnification of Trustee
8.06 Eligibility Requirements for Trustee
8.07 Resignation and Removal of the Trustee
8.08 Successor Trustee
8.09 Merger or Consolidation of Trustee or Fiscal Agent
8.10 Appointment of Co-Trustee or Separate Trustee
8.11 Appointment of Custodians
8.12 Access to Certain Information
8.13 Filings with the Securities and Exchange Commission
ARTICLE IX
TERMINATION
9.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans
9.02 Additional Termination Requirements
ARTICLE X
ADDITIONAL REMIC PROVISIONS
10.01 REMIC Administration
10.02 Depositor, Master Servicer, Special Servicer and, Trustee to Cooperate
with REMIC Administrator
10.03 Fees of the REMIC Administrator
10.04 Use of Agents
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01 Amendment
11.02 Recordation of Agreement; Counterparts
11.03 Limitation on Rights of Certificateholders
11.04 Governing Law
11.05 Notices
11.06 Severability of Provisions
11.07 Successors and Assigns; Beneficiaries
11.08 Article and Section Headings
11.09 Notices to the Rating [Agencies]
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This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of __________, 199___ among NATIONSLINK FUNDING CORPORATION, as
Depositor, _______________________________________________, as Mortgage Loan
Seller, __________________________________, as Master Servicer,
_________________________, as Special Servicer, ___________________________ as
Trustee and ______________________ as REMIC Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder in
multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust to be created hereunder.
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I".
The Class R-I Certificates will represent the sole class of "residual interests"
in REMIC I for purposes of the REMIC Provisions under federal income tax law.
The following table irrevocably sets forth the designation, the REMIC I
Remittance Rate, and the initial Uncertificated Principal Balance for each of
the REMIC I Regular Interests. Determined solely for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for each REMIC I Regular Interest is the first Distribution Date that is
at least two years after the end of the remaining amortization schedule of the
Mortgage Loan that has, as of the Closing Date, the longest remaining
amortization schedule, irrespective of its scheduled maturity. None of the REMIC
I Regular Interests will be certificated.
REMIC I Initial Uncertificated
Designation Remittance Rate Principal Balance
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A-1-Major Variable(1)
A-1-Minor _____% per annum
A-2-Major Variable(1)
A-2-Minor _____% per annum
B-Major Variable(1)
B-Minor _____% per annum
C-Major Variable(1)
C-Minor _____% per annum
D-Major Variable(1)
D-Minor _____% per annum
E-Major Variable(1)
E-Minor _____% per annum
F-Major Variable(1)
F-Minor _____% per annum
G-Major Variable(1)
G-Minor _____% per annum
H-Major Variable(1)
H-Minor _____% per annum
J-Major Variable(1)
J-Minor _____% per annum
K-Major Variable(1)
K-Minor _____% per annum
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(1) Calculated in accordance with the definition of "REMIC I Remittance Rate".
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, the Pass-Through Rate, and the initial Class Principal Balance for
each of the Classes of REMIC II Regular Certificates. Determined solely for
purposes of satisfying Treasury regulation section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each Class of REMIC II Regular Certificates
is the first Distribution Date that is at least two years after the end of the
remaining amortization schedule of the Mortgage Loan that has, as of the Closing
Date, the longest remaining amortization schedule, irrespective of its scheduled
maturity.
Initial Class
Designation Pass-Through Rate Principal Balance
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Class A-1 _____% per annum
Class A-2 _____% per annum
Class X Variable (1) N/A(2)
Class B _____% per annum
Class C _____% per annum
Class D _____% per annum
Class E _____% per annum
Class F _____% per annum
Class G _____% per annum
Class H _____% per annum
Class J _____% per annum
Class K _____% per annum
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(1) Calculated in accordance with the definition of "Pass-Through Rate".
(2) The Class X Certificates will not have a Class Principal
Balance; rather, such Class of Certificates will accrue interest as
provided herein on a Class Notional Amount that is, as of any date of
determination, equal to the then aggregate Uncertificated Principal
Balance of REMIC I Regular Interest A-1-Major, REMIC I Regular Interest
A-2-Major, REMIC I Regular Interest B-Major, REMIC I Regular Interest
C-Major, REMIC I Regular Interest D-Major, REMIC I Regular Interest
E-Major, REMIC I Regular Interest F-Major, REMIC I Regular Interest
G-Major, REMIC I Regular Interest H-Major, REMIC I Regular Interest
J-Major and REMIC I Regular Interest K-Major.
In consideration of the mutual agreements herein contained, the Depositor,
the Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee
and the REMIC Administrator agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL AND
THE CERTIFICATES
SECTION 1.01 Defined Terms
Whenever used in this Agreement, including in the Preliminary Statement,
the following words and phrases, unless the context otherwise requires, shall
have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to any Class of REMIC II
Regular Certificates, for any Distribution Date, one month's interest
(calculated on the basis of a 360-day year consisting of twelve 30-day months)
at the Pass-Through Rate applicable to such Class of Certificates for such
Distribution Date, accrued on the related Class Principal Balance or Class
Notional Amount, as the case may be, of such Class of Certificates outstanding
immediately prior to such Distribution Date. The Accrued Certificate Interest in
respect of any Class of REMIC II Regular Certificates for any Distribution Date
shall be deemed to have accrued during the applicable Interest Accrual Period.
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust within the
meaning of Treasury Regulation Section 1.856-6(b)(1), which is the first day on
which the Trust is treated as the owner of such REO Property for federal income
tax purposes.
"Additional Information": As defined in Section 4.02(a).
"Additional Interest": With respect to any Hyper-Amortization Loan after
its Anticipated Repayment Date, all interest accrued thereon at the Excess
Interest Rate, the payment of which interest shall, under the terms of such
Mortgage Loan, be deferred until all interest accrued at the Mortgage Rate (net
of the Excess Interest Rate) and outstanding principal has been paid , together
with all interest, if any, accrued at the related Mortgage Rate on such deferred
interest.
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the REMIC II Regular
Certificateholders' receiving less than the full amount of principal and/or
interest to which they are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Mortgage Loan or REO
Loan, for any Distribution Date, (a) if the related Mortgage Note provides that
interest accrues on such Mortgage Loan or REO Loan, as the case may be, on the
basis of a 360-day year consisting of twelve 30-day months (a "30/360 basis"), a
per annum rate equal to the related Net Mortgage Rate in effect for such
Mortgage Loan as of the commencement of the related Collection Period (or, in
the case of a Hyper-Amortization Loan or successor REO Loan after its
Anticipated Repayment Date, if such rate is less, the related Net Mortgage Rate
in effect for such Mortgage Loan or REO Loan immediately prior to its
Anticipated Repayment Date), and (b) if the related Mortgage Note provides that
interest accrues on such Mortgage Loan or REO Loan, as the case may be, other
than on a 30/360 basis, the annualized rate at which interest would have to
accrue thereon on a 30/360 basis during the most recently ended calendar month
in order to produce the actual amount of interest accrued (or, if such Mortgage
Loan or REO Loan, as the case may be, is prepaid, in whole or in part, or
otherwise liquidated during such calendar month, that otherwise would have
accrued) in respect of such Mortgage Loan or REO Loan, as the case may be, at
the related Net Mortgage Rate in effect for such Mortgage Loan during such
calendar month (or, in the case of a Hyper-Amortization Loan or successor REO
Loan after its Anticipated Repayment Date, if such rate is less, the related Net
Mortgage Rate in effect for such Mortgage Loan or REO Loan immediately prior to
its Anticipated Repayment Date).
"Administrative Fee Rate": With respect to each Mortgage Loan and REO Loan,
as specified in the Mortgage Loan Schedule, the sum of the related Master
Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the Reimbursement
Rate and payable to the Master Servicer, the Special Servicer or the Trustee, as
the case may be, all in accordance with Section 3.11(f) or Section 4.03(d), as
applicable.
"Adverse REMIC Event": With respect to each of REMIC I and REMIC II, either
(i) the endangerment of the status of such REMIC as a REMIC or (ii), except as
permitted by Section 3.17(a), the imposition of a tax upon such REMIC or any of
its assets or transactions (including, without limitation, the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on certain
contributions set forth in Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Annuity Factor": As defined in Section 4.01(a).
"Anticipated Repayment Date": With respect to any Hyper-Amortization Loan,
the date specified on the related Mortgage Note, as of which Additional Interest
shall begin to accrue on such Mortgage Loan, which date is prior to the Stated
Maturity Date for such Mortgage Loan.
"Applicable State Law": For purposes of Article X, the Applicable State Law
shall be (a) the laws of the State of New York, (b) the laws of the states in
which the Corporate Trust Office of the Trustee and the Primary Servicing
Offices of the Master Servicer and the Special Servicer are located, (c) the
laws of the states in which any Mortgage Loan documents are held and/or any REO
Properties are located, (d) such other state and local law whose applicability
shall have been brought to the attention of the REMIC Administrator by either
(i) an Opinion of Counsel delivered to it or (ii) written notice from the
appropriate taxing authority as to the applicability of such state law, and (e)
such other state or local law as to which the REMIC Administrator has actual
knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property as to
which an appraisal is required to be performed pursuant to the terms of this
Agreement, a narrative appraisal complying with USPAP (or, in the case of
Mortgage Loans and REO Loans with a Stated Principal Balance as of the date of
such appraisal of $1,000,000 or less, a limited appraisal and a summary report)
that indicates the "market value" of the subject property, as defined in 12
C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser.
"Appraisal Reduction Amount": With respect to any Required Appraisal Loan,
an amount (calculated as of the Determination Date immediately following the
later of (a) the date on which the most recent Appraisal that meets the
requirements of Section 3.19(b) in respect of such Required Appraisal Loan, was
obtained by the Master Servicer or the Special Servicer, as the case may be, and
(b) the earliest of the relevant dates in respect of such Required Appraisal
Loan specified in the first sentence of Section 3.19(b) hereof) equal to the
excess, if any, of (x) the sum of (i) the Stated Principal Balance of such
Required Appraisal Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer or the Trustee, all accrued and unpaid interest
(excluding, in the case of a Hyper-Amortization Loan after its Anticipated
Repayment Date, Additional Interest) on such Required Appraisal Loan through the
most recent Due Date prior to such Determination Date at a per annum rate equal
to the sum of the related Net Mortgage Rate and the Trustee Fee Rate, (iii) all
accrued but unpaid Master Servicing Fees and Special Servicing Fees in respect
of such Required Appraisal Loan, (iv) all related unreimbursed Advances made by
or on behalf of the Master Servicer, the Special Servicer or the Trustee in
respect of such Required Appraisal Loan, together with all unpaid Advance
Interest accrued on such Advances, and (v) all currently due but unpaid real
estate taxes and assessments, insurance premiums and, if applicable, ground
rents in respect of the related Mortgaged Property or REO Property (net of any
Escrow Payments or other reserves held by the Master Servicer or the Special
Servicer with respect to any such item), over (y) 90% of an amount equal to (i)
the Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by the most recent relevant Appraisal acceptable for
purposes of Section 3.19(b) hereof, net of (ii) the amount of any liens on such
property (other than in respect of items described in clause (x)(v) above) that
are prior to the lien of the Required Appraisal Loan. Notwithstanding the
foregoing, if an Appraisal is required to be obtained pursuant to Section
3.19(b) but has not been obtained within the 30-day period contemplated by such
section, then until the date such Appraisal is obtained the "Appraisal Reduction
Amount" for the subject Required Appraisal Loan will be deemed to equal 30% of
the Stated Principal Balance of such Required Appraisal Loan; provided that upon
receipt of an Appraisal acceptable for purposes of Section 3.19(b) hereof, the
Appraisal Reduction Amount for such Required Appraisal Loan will be recalculated
in accordance with the preceding sentence.
"Appraised Value": As of any date of determination, the appraised value of
a Mortgaged Property based upon the most recent Appraisal obtained pursuant to
this Agreement.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Final Distribution Date": As defined in Section 4.01(a).
"Assumed Monthly Payment": With respect to any Balloon Mortgage Loan for
its Stated Maturity Date (provided that such Mortgage Loan has not been paid in
full, and no other Liquidation Event has occurred in respect thereof, on or
before the end of the Collection Period in which such Stated Maturity Date
occurs) and for any subsequent Due Date therefor as of which such Mortgage Loan
remains outstanding and part of the Trust Fund, if no Monthly Payment (other
than a delinquent Balloon Payment) is due for such Due Date, the scheduled
monthly payment of principal and/or interest deemed to be due in respect thereof
on such Due Date equal to the amount that would have been due in respect of such
Mortgage Loan on such Due Date if it had been required to continue to accrue
interest (exclusive, in the case of a Hyper-Amortization Loan after its
Anticipated Repayment Date, of Additional Interest) in accordance with its
terms, and to pay principal in accordance with the amortization schedule (if
any), in effect immediately prior to, and without regard to the occurrence of,
its most recent scheduled maturity date (as such terms and amortization schedule
may have been modified, and such maturity date may have been extended, in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20). With respect to any REO Loan, for any Due Date therefor as of which the
related REO Property remains part of the Trust Fund, the scheduled monthly
payment of principal and/or interest deemed to be due in respect thereof on such
Due Date equal to the Monthly Payment that was due (or, in the case of a Balloon
Mortgage Loan described in the preceding sentence of this definition, the
Assumed Monthly Payment that was deemed due) in respect of the related Mortgage
Loan on the last Due Date prior to its becoming an REO Loan.
"Available Distribution Amount": With respect to any Distribution Date, an
amount equal to (a) the balance on deposit in the Distribution Account as of
11:30 a.m. (New York City time) on such Distribution Date (or such later time on
such date as of which distributions are made on the Certificates), including,
without limitation, if and to the extent on deposit therein as of such time, the
Master Servicer Remittance Amount for the related Master Servicer Remittance
Date, any P&I Advances made by the Master Servicer or the Trustee to cover
uncollected Monthly Payments due and/or Assumed Monthly Payments deemed due
during the related Collection Period, and any payments made by the Master
Servicer to cover Prepayment Interest Shortfalls incurred during the related
Collection Period, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any payments of principal (including, without
limitation, Principal Prepayments) and interest, Liquidation Proceeds and
Insurance Proceeds received after the end of the related Collection Period,
(iii) Prepayment Premiums, (iv) any amounts payable or reimbursable to any
Person from the Distribution Account pursuant to any of clauses (ii) through
(vi) of Section 3.05(b), and (v) any amounts deposited in the Distribution
Account in error; provided that the Available Distribution Amount for the Final
Distribution Date shall be calculated without regard to clauses (b)(i) and
(b)(ii) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Stated Maturity Date and as to which,
in accordance with such terms, the Monthly Payment due on its Stated Maturity
Date is at least two times larger than the Monthly Payment due on the Due Date
next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any date
of determination, the Monthly Payment payable on the Stated Maturity Date of
such Mortgage Loan.
"Bank": As defined in Section 2.08.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated __________ __, 199__,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking institutions in New York, New York, _____________ and the cities in
which the Primary Servicing Offices of the Master Servicer and Special Servicer
and the Corporate Trust Office of the Trustee are located, are authorized or
obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Mortgage Pass-Through
Certificates, Series 199___-____ as executed by the Trustee and authenticated
and delivered hereunder by the Certificate Registrar.
"Certificate Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled
"_________________", as Master Servicer, in trust for the registered holders of
NationsLink Funding Corporation, Mortgage Pass-Through Certificates, Series
199___-___.
"Certificate Factor": With respect to any Class of REMIC II Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or Class Notional Amount, as the case may be, and the
denominator of which is the related Initial Class Principal Balance or Initial
Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class X Certificate, the
hypothetical or notional principal amount on which such Certificate accrues
interest, which, as of any date of determination, is equal to the product of (a)
the Percentage Interest evidenced by such Certificate, multiplied by (b) the
then Class Notional Amount of the Class X Certificates.
"Certificate Owner": With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Depository Participant or on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register maintained
and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a Certificate is
registered in the Certificate Register; provided that solely for the purposes of
giving any consent, approval or waiver pursuant to this Agreement, any
Certificate registered in the name of the Depositor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer, the REMIC Administrator or the
Trustee or any Affiliate of any of them shall be deemed not to be outstanding,
and the Voting Rights to which any of them is entitled shall not be taken into
account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent, approval or waiver has been obtained,
except as otherwise provided in Sections 7.04 and 11.01 or except in connection
with the Controlling Class exercising its rights under Section 3.23, or unless
such Persons collectively own an entire Class of Certificates and only the
Holders of such Class of Certificates are entitled to grant such consent,
approval or waiver. The Certificate Registrar shall be entitled to request and
rely upon a certificate of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or if other than the Trustee, the REMIC
Administrator, as the case may be, in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and the
Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certificateholder Reports": As defined in Section 4.02(a).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificate": Any one of the Class A-1 or Class A-2 Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class A-1"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class A-2"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Notional Amount": The aggregate hypothetical or notional principal
amount on which the Class X Certificates collectively accrue interest equal to
the aggregate of the Uncertificated Principal Balances of the Major REMIC I
Regular Interests outstanding from time to time (rounded to the nearest whole
dollar during the period up to and including the initial Distribution Date).
"Class Principal Balance": The aggregate principal amount of any Class of
Sequential Pay Certificates outstanding as of any date of determination. As of
the Closing Date, the Class Principal Balance of each such Class of Certificates
shall equal the Initial Class Principal Balance thereof. On each Distribution
Date, the Class Principal Balance of each Class of the Sequential Pay
Certificates shall be permanently reduced by the amount of any distributions of
principal made thereon on such Distribution Date pursuant to Section 4.01(a)
and, if and to the extent appropriate, shall be further permanently reduced on
such Distribution Date as provided in Section 4.04.
"Class R-I Certificate": Any one of the Certificates with a "Class R-I"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class R-II"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-1, and
evidencing a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
"Closing Date": __________ __, 199__
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the period
commencing immediately following the Determination Date in the calendar month
preceding the month in which such Distribution Date occurs (or, in the case of
the initial Distribution Date, commencing immediately following the Cut-off
Date) and ending on and including the Determination Date in the calendar month
in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Confidential Information": As defined in Section 3.28.
["Controlling Class": As of any date of determination, the outstanding
Class of Sequential Pay Certificates with the lowest Payment Priority (the Class
A Certificates being treated as a single Class for this purpose) that has a then
outstanding Class Principal Balance at least equal to 25% of the Initial Class
Principal Balance thereof (or, if no Class of Sequential Pay Certificates has a
Class Principal Balance at least equal to 25% of the Initial Class Principal
Balance thereof, then the "Controlling Class" shall be the outstanding Class of
Sequential Pay Certificates with the then largest outstanding Class Principal
Balance).]
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at
________________________________________________________.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a Specially
Serviced Mortgage Loan but has ceased to be such in accordance with the
definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or a related
Mortgaged Property becoming an REO Property).
"Corresponding Major REMIC I Regular Interest": With respect to any Class
of Sequential Pay Certificates, the Major REMIC I Regular Interest that has,
without regard to the reference to "Major", the same alphabetical (and, if
applicable, numerical) designation as the Class designation for such Class of
Sequential Pay Certificates.
"Corresponding Minor REMIC I Regular Interest": With respect to any Class
of Sequential Pay Certificates, the Minor REMIC I Regular Interest that has,
without regard to the reference to "Minor", the same alphabetical (and, if
applicable, numerical) designation as the Class designation for such Class of
Sequential Pay Certificates.
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans.
"Current Principal Distribution Amount": With respect to any Distribution
Date, an amount (calculated in accordance with Section 1.02) equal to the
aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed
due, as the case may be, in respect of the Mortgage Loans and any
REO Loans for their respective Due Dates occurring during the
related Collection Period;
(b) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
(c) with respect to any Balloon Mortgage Loan as to which the related
Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (exclusive of any
Principal Prepayment and any amount described in subclause (d)
below) that was made by or on behalf of the related Mortgagor
during the related Collection Period, net of any portion of such
payment that represents a recovery of the principal portion of
any Monthly Payment (other than a Balloon Payment) due, or the
principal portion of any Assumed Monthly Payment deemed due, in
respect of such Balloon Mortgage Loan on a Due Date during or
prior to the related Collection Period and not previously
recovered;
(d) all Liquidation Proceeds and Insurance Proceeds received on or in
respect of the Mortgage Loans during the related Collection
Period that were identified and applied by the Master Servicer as
recoveries of principal thereof, in each case net of any portion
of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment)
due, or of the principal portion of any Assumed Monthly Payment
deemed due, in respect of any such Mortgage Loan on a Due Date
during or prior to the related Collection Period and not
previously recovered; and
(e) all Liquidation Proceeds, Insurance Proceeds and REO Revenues
received on or in respect of any REO Properties during the
related Collection Period that were identified and applied by the
Master Servicer as recoveries of principal of the related REO
Loans, in each case net of any portion of such amounts that
represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Monthly Payment deemed due, in respect of
any such REO Loan or the predecessor Mortgage Loan on a Due Date
during or prior to the related Collection Period and not
previously recovered.
"Custodian": A Person who is at any time appointed by the Trustee pursuant
to Section 8.11 as a document custodian for the Mortgage Files, which Person
shall not be the Depositor, the Mortgage Loan Seller or an Affiliate of either.
"Cut-off Date": __________, 199__.
"Cut-off Date Balance": With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the Cut-off Date, net of all
unpaid payments of principal due in respect thereof on or before such date.
"Debt Service Coverage Ratio": [With respect to any Mortgage Loan, as of
any date of determination, and calculated without regard to any
cross-collateralization feature of such Mortgage Loan, the ratio of (x) the Net
Operating Income (before payment of any debt service on such Mortgage Loan)
generated by the related Mortgaged Property during the most recently ended
period of not more than twelve months or less than three months for which
financial statements (whether or not audited) have been received by or on behalf
of the Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or Special Servicer (following the Closing Date) (such Net Operating Income to
be annualized if the relevant period is less than twelve months), to (y) the
product of the amount of the Monthly Payment in effect for such Mortgage Loan as
of such date of determination, multiplied by 12].
"Default Charges": Any and all Default Interest and late payment charges
paid or payable, as the context requires, in connection with a default under a
Mortgage Loan or any successor REO Loan.
"Default Interest": With respect to any Mortgage Loan (or related REO
Loan), any amounts collected thereon, other than late payment charges and
Prepayment Premiums, that represent interest (exclusive, if applicable, of
Additional Interest) in excess of interest accrued on the principal balance of
such Mortgage Loan (or REO Loan) at the related Mortgage Rate, such excess
interest arising out of a default under such Mortgage Loan.
"Defaulted Mortgage Loan": Any Specially Serviced Mortgage Loan as to which
a material default has occurred or a default in respect of any payment thereon
is reasonably foreseeable, and which the Special Servicer has determined, in its
reasonable and good faith judgment, will become the subject of a foreclosure
sale or similar proceedings (the basis for which determination shall be set
forth in an Officer's Certificate to be delivered to the Master Servicer and the
Trustee).
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report or reports setting forth, among
other things, those Mortgage Loans which, as of the close of business on the
last day of the most recently ended calendar month were (i) delinquent 30-59
days, (ii) delinquent 60-89 days, (iii) delinquent 90 days or more, (iv) current
but specially serviced, (v) in foreclosure but as to which the related Mortgaged
Property had not become REO Property, or (vi) related to a Mortgaged Property
which had become REO Property, substantially in the form, and including such
additional information in respect of each such Mortgage Loan, as is contemplated
on page [B-6] of the Prospectus Supplement.
"Depositor": NationsLink Funding Corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates, is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the [10]th day
of the month in which such Distribution Date occurs, or if such [10]th day is
not a Business Day, the Business Day immediately preceding.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than the sale of an REO Property pursuant to Section 3.18(d)),
the performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Special Servicer (or any Sub-Servicer on
behalf of the Special Servicer) shall not be considered to Directly Operate an
REO Property solely because the Special Servicer (or any Sub-Servicer on behalf
of the Special Servicer) establishes rental terms, chooses tenants, enters into
or renews leases, deals with taxes and insurance, or makes decisions as to, or
funds, repairs or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
conjunction with leasing activity).
"Disqualified Organization": Any of the following: (i) the United States or
a possession thereof, any State or any political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for ▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not selected by any
such governmental unit), (ii) a foreign government, international organization,
or any agency or instrumentality of either of the foregoing, (iii) any
organization (except certain farmers' cooperatives described in Section 521 of
the Code) which is exempt from the tax imposed by Chapter 1 of the Code (unless
such organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the REMIC Administrator based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust or any Person having an Ownership Interest in any Class of
Certificates, other than such Person, to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of REMIC II
Regular Certificates, for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by that portion, if any, of the Net Aggregate
Prepayment Interest Shortfall for such Distribution Date allocated to such Class
of Certificates as set forth below. The Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated to the
respective Classes of REMIC II Regular Certificates on such Distribution Date as
follows: first, to the respective Classes of REMIC II Regular Certificates
(other than the Senior Certificates), sequentially in reverse alphabetical order
of Class designation, in each case up to an amount equal to the lesser of any
remaining unallocated portion of such Net Aggregate Prepayment Interest
Shortfall and any Accrued Certificate Interest in respect of the particular
Class of Certificates for such Distribution Date; and thereafter, if and to the
extent that any portion of such Net Aggregate Prepayment Interest Shortfall
remains unallocated, among the respective Classes of Senior Certificates, up to,
and pro rata in accordance with, the respective amounts of Accrued Certificate
Interest for each such Class of Senior Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts created and
maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "_________________, as Trustee, in
trust for the registered holders of NationsLink Funding Corporation, Mortgage
Pass-Through Certificates, Series 1998-1".
"Distribution Date": The 20th day of any month, or if such 20th day is not
a Business Day, the Business Day immediately following, commencing in
__________, 199___.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.02(e).
"Due Date": With respect to (i) any Mortgage Loan on or prior to its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Mortgage Loan is scheduled to be first due;
(ii) any Mortgage Loan after its Stated Maturity Date, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on such
Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan, the
day of the month set forth in the related Mortgage Note on which each Monthly
Payment on the related Mortgage Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, including, without
limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "____" by
______ and "____" by _____ (if the deposits are to be held in the account for
more than 30 days), or the short-term unsecured debt obligations of which are
rated no less than "_____" by _________ and "_____" by _______ (if the deposits
are to be held in the account for 30 days or less), in each case, at any time
funds are on deposit therein, (ii) a segregated trust account or accounts
maintained with the corporate trust department of a ___________________, (iii) a
segregated trust account or accounts maintained with the corporate trust
department of a _____________________, and subject to regulations regarding
fiduciary funds on deposit therein substantially similar to 12 C.F.R. ss.
9.10(b), or (iv) any other account which would not result in the downgrade,
qualification or withdrawal of the rating then assigned by either Rating Agency
to any Class of Certificates (as confirmed in writing by each Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is required to
request the Master Servicer to make, that must be made within 10 days of the
Special Servicer's becoming aware that it must be made in order to avoid any
material penalty, any material harm to a Mortgaged Property or any other
material adverse consequence to the Trust Fund.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section 7.01(a).
"Excess Interest Rate": With respect to any Hyper-Amortization Loan after
its Anticipated Repayment Date, the incremental increase in the Mortgage Rate
for such Mortgage Loan resulting from the passage of such Anticipated Repayment
Date.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption-Favored Party": Any of (i) NationsBank Corporation
("NationsBank"), (ii) any Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with
NationsBank and (iii) any member of a syndicate or selling group of which
NationsBank or a person described in clause (ii) is a manager or co-manager with
respect to a Class of Certificates.
"▇▇▇▇▇▇ Mae": The Federal National Mortgage Association or any successor.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination by the Special Servicer
with respect to any defaulted Mortgage Loan or REO Property and, accordingly,
the related REO Loan (other than a Mortgage Loan or REO Property, as the case
may be, purchased by the Mortgage Loan Seller or an Affiliate of the Mortgage
Loan Seller pursuant to Section 2.03, by the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18(b), by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c) or by the Master Servicer or the
Majority Certificateholder of the Controlling Class pursuant to Section 9.01)
that there has been a recovery of all Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries (including, without limitation, by reason of a
sale of such Mortgage Loan or REO Property pursuant to Section 3.18(d) hereof)
that the Special Servicer has determined, in accordance with the Servicing
Standard, exercised without regard to any obligation of the Master Servicer or
Special Servicer to make payments from its own funds pursuant to Section
3.07(b), will be ultimately recoverable.
"▇▇▇▇▇▇▇ Mac": The Federal Home Loan Mortgage Corporation or any successor.
"Ground Lease": The ground lease pursuant to which any Mortgagor holds a
leasehold interest in the related Mortgaged Property.
"Group": A group of Mortgage Loans that are cross-collateralized and
cross-defaulted with each other.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Health Care Loans": Those Mortgage Loans identified on the Mortgage Loan
Schedule by control numbers ___________________ and, as of the date hereof,
secured by Mortgages on Mortgaged Properties operated as health care-related
facilities.
"Historical Loan Modification Report": A report or reports setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the Determination Date immediately preceding the preparation of such report or
reports, have been modified pursuant to this Agreement (i) during the Collection
Period ending on such Determination Date and (ii) since the Cut-off Date,
showing the original and the revised terms thereof, substantially in the form,
and including such additional information in respect of each such Mortgage Loan,
as is contemplated on page B-12 of the Prospectus Supplement.
"Historical Loss Report": A report or reports setting forth, among other
things, as of the close of business on the Determination Date immediately
preceding the preparation of such report or reports, (i) the amount of
Liquidation Proceeds received, and Liquidation Expenses incurred, both during
the Collection Period ending on such Determination Date and historically, and
(ii) the amount of Realized Losses occurring during such Collection Period and
historically, set forth on a Mortgage Loan-by-Mortgage Loan and REO
Property-by-REO Property basis, substantially in the form, and including such
additional information in respect of each Defaulted Mortgage Loan and REO
Property as to which a Final Recovery Determination has been made, as is
contemplated on page B-13 of the Prospectus Supplement.
"HUD-Approved Servicer": A servicer that is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 207 and 211 of
the National Housing Act.
"Hyper-Amortization Loan": A Mortgage Loan that provides for, if such
Mortgage Loan is not paid in full prior to or on its Anticipated Repayment Date,
(i) the accrual of Additional Interest thereon and (ii) the application (in
reduction of the outstanding principal of such Mortgage Loan) of an amount (in
addition to the principal portion of the required Monthly Payment) equal to the
excess (if any) of certain net cash flow from the related Mortgaged Property
over the related Monthly Payment.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator or any Affiliate thereof
as an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any Affiliate thereof, as the case may be.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by (i)
any Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall not be an expense of the Trustee,
the REMIC Administrator or the Trust, delivered to the Trustee and the REMIC
Administrator), so long as REMIC I does not receive or derive any income from
such Person and provided that the relationship between such Person and REMIC I
is at arm's length, all within the meaning of Treasury Regulation Section
1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee and the
REMIC Administrator of an Opinion of Counsel, which shall be at no expense to
the Trustee, the REMIC Administrator or the Trust, to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class Notional Amount": With respect to the Class X Certificates,
the initial Class Notional Amount thereof as of the Closing Date equal to
$___________________.
"Initial Class Principal Balance": With respect to any Class of Sequential
Pay Certificates, the initial Class Principal Balance thereof as of the Closing
Date, in each case as set forth below:
Initial Class
Class Principal Balance
Class A-1 $____________
Class A-2 $____________
Class B $____________
Class C $____________
Class D $____________
Class E $____________
Class F $____________
Class G $____________
Class H $____________
Class J $____________
Class K $____________
"Initial Pool Balance": The aggregate Cut-off Date Balance of all the
Mortgage Loans included in the Trust Fund as of the Closing Date.
"Insurance Policy": With respect to any Mortgage Loan or REO Property, any
hazard insurance policy, flood insurance policy, title policy or other insurance
policy that is maintained from time to time in respect of such Mortgage Loan (or
the related Mortgaged Property) or in respect of such REO Property, as the case
may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property or REO Property or released to the Mortgagor, in either case, in
accordance with the Servicing Standard.
"Interest Accrual Period": With respect to each REMIC I Regular Interest
and each Class of REMIC II Regular Certificates, for any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs.
"Interest Only Certificate": Any Class X Certificate.
"Interested Person": The Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Holder of a Certificate, or any Affiliate of
any such Person.
"Investment Account": As defined in Section 3.06(a).
"IRS": The Internal Revenue Service or any successor.
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the Code and Treasury regulations promulgated thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts received
thereon during any Collection Period, whether as payments, Insurance Proceeds,
Liquidation Proceeds or otherwise, which represent late collections of the
principal and/or interest portions of a Monthly Payment (other than a Balloon
Payment) or an Assumed Monthly Payment in respect of such Mortgage Loan due or
deemed due, as the case may be, for a Due Date in a previous Collection Period,
or for a Due Date coinciding with or preceding the Cut-off Date, and not
previously received or recovered. With respect to any REO Loan, all amounts
received in connection with the related REO Property during any Collection
Period, whether as Insurance Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the related Mortgage Loan or of an Assumed Monthly
Payment in respect of such REO Loan due or deemed due, as the case may be, for a
Due Date in a previous Collection Period and not previously received or
recovered. The term "Late Collections" shall specifically exclude any Default
Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the Mortgage Loan Seller or any Affiliate thereof
pursuant to Section 2.03; or (iv) such Mortgage Loan is purchased by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(b),
by the Master Servicer or the Special Servicer pursuant to Section 3.18(c), or
by the Master Servicer or the Majority Certificateholder of the Controlling
Class pursuant to Section 9.01. With respect to any REO Property (and the
related REO Loan), any of the following events: (x) a Final Recovery
Determination is made with respect to such REO Property; or (y) such REO
Property is purchased by the Master Servicer or the Majority Certificateholder
of the Controlling Class pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary "out of
pocket" costs and expenses due and owing (but not otherwise covered by Servicing
Advances) in connection with the liquidation of any Specially Serviced Mortgage
Loan or REO Property pursuant to Section 3.09 or 3.18 (including, without
limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Mortgage Loan or
REO Property (other than any Specially Serviced Mortgage Loan or REO Property
repurchased (x) by the Mortgage Loan Seller or any Affiliate thereof pursuant to
Section 2.03 within 120 days of the Mortgage Loan Seller's notice or discovery
of the breach or Document Defect giving rise to such repurchase obligation, (y)
by the Majority Certificateholder of the Controlling Class, the Master Servicer
or the Special Servicer pursuant to Section 3.18 or (z) by the Master Servicer
or the Majority Certificateholder of the Controlling Class pursuant to Section
9.01), the fee designated as such and payable to the Special Servicer pursuant
to the fourth paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced Mortgage
Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance Proceeds and
REO Revenues) received by the Master Servicer or the Special Servicer in
connection with: (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation; (ii) the liquidation of
a Mortgaged Property or other collateral constituting, or that constituted,
security for a defaulted Mortgage Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor or any
guarantor; (iv) the purchase of a Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class pursuant to Section 3.18(b) or by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or any other
sale thereof pursuant to Section 3.18(d); (v) the repurchase of a Mortgage Loan
by the Mortgage Loan Seller or any Affiliate thereof pursuant to Section 2.03;
or (vi) the purchase of a Mortgage Loan or REO Property by the Master Servicer
or the Majority Certificateholder of the Controlling Class pursuant to Section
9.01.
"Lost Coupon Amount": As defined in Section 4.01(a).
"Major REMIC I Regular Interests": Collectively, REMIC I Regular Interest
A-1-Major, REMIC I Regular Interest A-2-Major, REMIC I Regular Interest B-Major,
REMIC I Regular Interest C-Major, REMIC I Regular Interest D-Major, REMIC I
Regular Interest E-Major, REMIC I Regular Interest F-Major, REMIC I Regular
Interest G-Major, REMIC I Regular Interest H-Major, REMIC I Regular Interest
J-Major and REMIC I Regular Interest K-Major.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Master Servicer":___________________________ its successor in interest or
any successor master servicer appointed as herein provided.
"Master Servicer Remittance Amount": With respect to any Master Servicer
Remittance Date, an amount equal to (a) all amounts on deposit in the
Certificate Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any payments of principal (including, without
limitation, Principal Prepayments) and interest (including, without limitation,
Additional Interest), Liquidation Proceeds and Insurance Proceeds received after
the end of the related Collection Period, (iii) any Prepayment Premiums received
after the end of the related Collection Period, (iv) any amounts payable or
reimbursable to any Person from the Certificate Account pursuant to any of
clauses (ii) through (xvi) of Section 3.05(a), and (v) any amounts deposited in
the Certificate Account in error; provided that, with respect to the Master
Servicer Remittance Date that occurs in the same calendar month as the Final
Distribution Date, the Master Servicer Remittance Amount will be calculated
without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date": The Business Day immediately preceding
each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and REO Loan,
the fee payable to the Master Servicer pursuant to Section 3.11(a) and from
which the Standby Fee and any Primary Servicing Fees are payable.
"Master Servicing Fee Rate": With respect to each Mortgage Loan (and any
related REO Loan), the rate per annum that is 0.____ basis points (0.____% per
annum) less than the Administrative Fee Rate specified for such Mortgage Loan in
the Mortgage Loan Schedule.
"Minor REMIC I Regular Interests": Collectively, REMIC I Regular Interest
A-1-Minor, REMIC I Regular Interest A-2-Minor, REMIC I Regular Interest B-Minor,
REMIC I Regular Interest C-Minor, REMIC I Regular Interest D-Minor, REMIC I
Regular Interest E-Minor, REMIC I Regular Interest F-Minor, REMIC I Regular
Interest G-Minor, REMIC I Regular Interest H-Minor, REMIC I Regular Interest
J-Minor and REMIC I Regular Interest K-Minor.
"Modified Mortgage Loan": Any Mortgage Loan as to which any Servicing
Transfer Event has occurred and which has been modified by the Special Servicer
pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Mortgage Loan);
(B) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount not less than the fair market value
(as is), as determined by an Appraisal delivered to the Special
Servicer (at the expense of the related Mortgagor and upon which the
Special Servicer may conclusively rely), of the property to be
released; or
(C) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage
Loan or reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment": With respect to any Mortgage Loan, for any Due Date as
of which such Mortgage Loan is outstanding, the scheduled monthly payment (or,
in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date,
the minimum required monthly payment) of principal and/or interest on such
Mortgage Loan, including, without limitation, a Balloon Payment, that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20) and applicable law; provided that the Monthly Payment due in respect of
any Hyper-Amortization Loan after its Anticipated Repayment Date shall not
include Additional Interest.
"Mortgage": With respect to any Mortgage Loan, separately and collectively,
as the context may require, each mortgage, deed of trust and/or other similar
document or instrument securing the related Mortgage Note and creating a lien on
the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to Section
2.01(c), collectively the following documents:
(i) the original Mortgage Note, endorsed by the most recent
endorsee prior to the Trustee or, if none, by the
originator, without recourse, either in blank or to the
order of the Trustee in the following form: "Pay to the
order of [TRUSTEE], as trustee for the registered holders of
NationsLink Funding Corporation, Mortgage Pass-Through
Certificates, Series 199_-_, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable,
the originals or copies of any intervening assignments
thereof showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any, in each case
with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior
to the Trustee or, if none, by the originator, in favor of
the Trustee (in such capacity);
(iv) the original or a copy of any related Assignment of Leases
(if any such item is a document separate from the Mortgage)
and, if applicable, the originals or copies of any
intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the
most recent assignee of record thereof prior to the Trustee,
if any, in each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if any such item is a document separate from the Mortgage),
in recordable form, executed by the most recent assignee of
record thereof prior to the Trustee or, if none, by the
originator, in favor of the Trustee (in such capacity),
which assignment may be included as part of the
corresponding assignment of Mortgage referred to in clause
(iii) above;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment
from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage) executed
by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, in favor of the
Trustee (in such capacity), which assignment may be included
as part of the corresponding assignment of Mortgage referred
to in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of
recording thereon if appropriate, in those instances where
the terms or provisions of the Mortgage, Mortgage Note or
any related security document have been modified or the
Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance
policy issued as of the date of the origination of the
Mortgage Loan, together with all endorsements or riders (or
copies thereof) that were issued with or subsequent to the
issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgaged Property;
(x) the original of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan which was in the
possession of the Mortgage Loan Seller at the time the
Mortgage Files were delivered to the Trustee;
(xi) (A) file or certified copies of any UCC Financing Statements
and continuation statements which were filed in order to
perfect (and maintain the perfection of) any security
interest held by the originator of the Mortgage Loan (and
each assignee of record prior to the Trustee) in and to the
personalty of the Mortgagor at the Mortgaged Property (in
each case with evidence of filing thereon) and which were in
the possession of the Mortgage Loan Seller at the time the
Mortgage Files were delivered to the Trustee and (B) if any
such security interest is perfected and the related UCC-1,
UCC-2 or UCC-3 financing statements were in the possession
of the Mortgage Loan Seller, a UCC-2 or UCC-3 financing
statement, as applicable, executed by the most recent
assignee of record prior to the Trustee or, if none, by the
originator, evidencing the transfer of such security
interest to the Trustee (or a certified copy of such
assignment as sent for filing);
(xii) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate) granted by
the Mortgagor if the Mortgage, Mortgage Note or other
document or instrument referred to above was signed on
behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original Ground Lease or a copy
thereof;
(xiv) the original or copy of any intercreditor agreement relating
to such Mortgage Loan;
(xv) the original or copy of any operating lease relating to the
related Mortgaged Property; and
(xvi) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
provided that whenever the term "Mortgage File" is used to refer to
documents actually received by the Trustee or a Custodian appointed thereby,
such term shall not be deemed to include such documents and instruments required
to be included therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to the
Trustee pursuant to Section 2.01 and from time to time held in the Trust Fund.
As used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage File.
"Mortgage Loan Purchase Agreement": The Mortgage Loan Purchase Agreement,
dated as of _________ __, 199_, between ________ and NationsLink Funding
Corporation.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on the
Closing Date to the Trustee as part of the Trust Fund, which list is attached
hereto as Schedule I and may be amended from time to time in accordance with
Section 2.02(e). The Mortgage Loan Schedule shall set forth, among other things,
the following information with respect to each Mortgage Loan:
(i) the loan number and control number;
(ii) the street address (including city, state and zip code) of the related
Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated Maturity Date
or, in the case of a Hyper-Amortization Loan, the Anticipated
Repayment Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) the Administrative Fee Rate (inclusive of the Primary Servicing Fee
Rate);
(x) the Primary Servicing Fee Rate;
(xi) whether the Mortgagor's interest in the related Mortgaged Property is
a leasehold estate;
(xii)whether the Mortgage Loan is a Cross-Collateralized Mortgage Loan
and, if so, a reference to the other Mortgage Loans that are
cross-collateralized with such Mortgage Loan; and
(xiii) whether the Mortgage Loan is a Hyper-Amortization Mortgage Loan.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
"Mortgage Loan Seller": _________________________________.
"Mortgage Note": The original executed note evidencing the indebtedness of
a Mortgagor under a Mortgage Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any successor
REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Mortgage Loan from time to time in
accordance with the terms of the related Mortgage Note (as such may be modified
at any time following the Closing Date) and applicable law, (ii) any Mortgage
Loan after its Stated Maturity Date, the annualized rate described in clause (i)
above determined without regard to the passage of such Stated Maturity Date, and
(iii) any REO Loan, the annualized rate described in clause (i) or (ii) above,
as applicable, determined as if the related Mortgage Loan had remained
outstanding.
"Mortgaged Property": Individually and collectively, as the context may
require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, as the
context may require, "Mortgaged Property" may mean, collectively, all the
Mortgaged Properties securing such Cross-Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note, including without
limitation, any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount remitted by the Master Servicer for
deposit in the Distribution Account for such Distribution Date pursuant to
Section 3.19(e) in connection with such Prepayment Interest Shortfalls.
"Net Default Charges": With respect to any Mortgage Loan or REO Loan, any
Default Charges actually collected thereon (determined in accordance with the
allocation of amounts collected as specified in Section 1.02), net of (if, but
only if, such Default Charges are allocable to the period that such Mortgage
Loan was a Specially Serviced Mortgage Loan) any Advance Interest accrued on
Advances made in respect of such Mortgage Loan that are reimbursable from such
Default Charges in accordance with Section 3.05(a)(viii).
"Net Investment Earnings": With respect to any Investment Account for any
Collection Period, the amount, if any, by which the aggregate of all interest
and other income realized during such Collection Period on funds held in such
Investment Account, exceeds the aggregate of all losses and investment costs, if
any, incurred during such Collection Period in connection with the investment of
such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for any
Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment Account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan, as of
any date of determination, a rate per annum equal to the related Mortgage Rate
then in effect, minus the related Administrative Fee Rate.
["Net Operating Income": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses incurred in respect of such Mortgaged Property
(subject to adjustments for, among other things, (i) non-cash items such as
depreciation and amortization, (ii) capital expenditures and (iii) debt service
on loans secured by the Mortgaged Property).]
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance made or proposed to be made
in respect of a Mortgage Loan or REO Loan which, as determined by the Master
Servicer or, if applicable, the Trustee, in its reasonable and good faith
judgment, will not be recoverable (together with Advance Interest accrued
thereon), or which in fact was not ultimately recovered, from late collections,
Insurance Proceeds, Liquidation Proceeds or any other recovery on or in respect
of such Mortgage Loan or REO Property (without giving effect to potential
recoveries on deficiency judgments or recoveries from guarantors).
"Nonrecoverable Servicing Advance": Any Servicing Advance made or proposed
to be made in respect of a Mortgage Loan or REO Property which, as determined by
the Master Servicer, the Special Servicer or, if applicable, the Trustee, in its
reasonable and good faith judgment, will not be recoverable (together with
Advance Interest accrued thereon), or which in fact was not ultimately
recovered, from late collections, Insurance Proceeds, Liquidation Proceeds or
any other recovery on or in respect of such Mortgage Loan or REO Property
(without giving effect to potential recoveries on deficiency judgments or
recoveries from guarantors).
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class F, Class G, Class H, Class J, Class K or Residual
Certificate.
"Non-United States Person": Any person other than a United States Person.
"Officer's Certificate": A certificate signed by a Servicing Officer of the
Master Servicer or the Special Servicer or a Responsible Officer of the Trustee,
as the case may be.
"Operating Statement Analysis": As defined in Section 4.02(b).
"Opinion of Counsel": A written opinion of counsel (who must, in connection
with any opinion rendered pursuant hereto with respect to tax matters or a
resignation under Section 6.04, be Independent counsel, but who otherwise may be
salaried counsel for the Depositor, the Mortgage Loan Seller, the Trustee, the
REMIC Administrator, the Master Servicer or the Special Servicer), which written
opinion is acceptable and delivered to the addressee(s).
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"Pass-Through Rate": With respect to any Class of Sequential Pay
Certificates, for any Distribution Date, the fixed rate per annum specified as
such in respect of such Class of Certificates in the Preliminary Statement
hereto. With respect to the Class X Certificates, for any Distribution Date, the
excess, if any, of (a) the REMIC I Remittance Rate applicable to each Major
REMIC I Regular Interest (i.e., the Weighted Average Adjusted Net Mortgage Rate)
for such Distribution Date, over (b) the weighted average of the fixed REMIC I
Remittance Rates applicable to all the Minor REMIC I Regular Interests, weighted
on the basis of the respective Uncertificated Principal Balances of such Minor
REMIC I Regular Interests outstanding immediately prior to such Distribution
Date.
"Payment Priority": With respect to any Class of Certificates, the priority
of the Holders thereof in respect of the Holders of the other Classes of
Certificates to receive distributions out of the Available Distribution Amount
for any Distribution Date. The Payment Priority of the respective Classes of
Certificates shall be, in descending order, as follows: first, the respective
Classes of Senior Certificates, pro rata; second, the Class B Certificates;
third, the Class C Certificates; fourth, the Class D Certificates; fifth, the
Class E Certificates; sixth, the Class F Certificates; seventh, the Class G
Certificates; eighth, the Class H Certificates; ninth, the Class J Certificates;
tenth, the Class K Certificates; and last, the respective Classes of Residual
Certificates.
"Percentage Interest": With respect to any REMIC II Regular Certificate,
the portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Initial Class Principal Balance or Initial Class Notional Amount, as the
case may be, of the relevant Class. With respect to a Residual Certificate, the
percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"Permitted Investments": Any one or more of the following obligations:
(i) direct obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the full
faith and credit of the United States;
(ii) repurchase obligations with respect to any security described in
clause (i) above, provided that the long-term unsecured debt obligations of
the party agreeing to repurchase such obligations are rated "___" by ______
and "____" by ____);
(iii) certificates of deposit, time deposits, demand deposits and bankers'
acceptances of any bank or trust company organized under the laws of the
United States or any state, provided that (a) the long-term unsecured debt
obligations of such bank or trust company are rated "_____" by __________
and "______" by _____ or (b) the short-term unsecured debt obligations of
such bank or trust company are rated no less than "_____" by _________ and
"_______" by ________ or (c) if both such long-term and short-term
unsecured debt obligations have been rated by [either] Rating Agency, then
each must be rated as specified in the immediately preceding clauses (a)
and (b) with respect to such Rating Agency;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United States
or any state thereof rated no less than "_____" by ________ and "______" by
______; and
(v) any other obligation or security which would not result in the
downgrade, qualification or withdrawal of the rating then assigned by
either Rating Agency to any Class of Certificates, evidence of which shall
be confirmed in writing by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, that no investment described hereunder may
be purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, that no investment described hereunder may be sold prior to
stated maturity if such sale would result in a loss of principal on the
instrument or a tax on "prohibited transactions" under Section 860F of the Code;
and provided, further, that each investment described hereunder shall, by its
terms, have a predetermined fixed amount of principal due at maturity (that
cannot vary or change) and either a fixed interest rate or variable interest
rate tied to a single interest rate index plus a single fixed spread; and
provided, further, that each investment described hereunder shall be a "cash
flow investment", as defined in the REMIC Provisions.
"Permitted Transferee ": Any Transferee of a Residual Certificate other
than either a Disqualified Organization or a Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Phase I Environmental Assessment": [A "Phase I assessment" as described in
and meeting the criteria of Chapter 5 of the ▇▇▇▇▇▇ ▇▇▇ Multifamily Guide, Part
II, as amended from time to time.]
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made by the
Master Servicer or the Trustee pursuant to Section 4.03.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": The assumption that no Mortgage Loan (other than a
Hyper-Amortization Loan) is prepaid prior to its Stated Maturity Date and that
no Hyper-Amortization Loan is prepaid prior to, but each is paid in its entirety
on, its Anticipated Repayment Date, such assumption to be used for determining
the accrual of original issue discount, market discount and premium, if any, on
the Mortgage Loans, the REMIC I Regular Interests and the Certificates for
federal income tax purposes.
"Prepayment Interest Excess": With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part made on or prior to the
Determination Date in any calendar month but after the first day of such month,
any payment of interest (net of related Servicing Fees and exclusive of
Prepayment Premiums and, in the case of a Hyper-Amortization Loan after its
Anticipated Repayment Date, Additional Interest) actually collected from the
related Mortgagor and intended to cover the period from the commencement of such
month to the date of prepayment.
"Prepayment Interest Shortfall": With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part made after the
Determination Date in any calendar month, the amount of uncollected interest
(determined without regard to any Prepayment Premium that may have been
collected and exclusive of, in the case of a Hyper-Amortization Loan after its
Anticipated Repayment Date, Additional Interest) that would have accrued at a
per annum rate equal to the sum of the Net Mortgage Rate for such Mortgage Loan
plus the Trustee Fee Rate, on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment was applied
to such Mortgage Loan and ending on the last day of such calendar month,
inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable, as the
context requires, by a Mortgagor in connection with a Principal Prepayment on,
or other early collection of principal of, a Mortgage Loan or any successor REO
Loan.
"Primary Servicing Fee": With respect to each Mortgage Loan that is subject
to a Sub-Servicing Agreement as of the Closing Date, the monthly fee payable to
the Sub-Servicer by the Master Servicer from the Master Servicing Fee.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Closing Date, the rate per annum
specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer, the office
thereof primarily responsible for performing its respective duties under this
Agreement, initially located in __________ and, with respect to the Special
Servicer, the office thereof primarily responsible for performing its respective
duties under this Agreement, initially located in __________.
"Principal Distribution Amount": With respect to any Distribution Date, the
aggregate of the Current Principal Distribution Amount for such Distribution
Date and, if such Distribution Date is subsequent to the initial Distribution
Date, the excess, if any, of the Principal Distribution Amount for the preceding
Distribution Date, over the aggregate distributions of principal made on the
Sequential Pay Certificates on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest (without regard to any Prepayment
Premium that may have been collected) representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
"Prospectus Supplement": That certain prospectus supplement dated
__________ __, 199__, relating to the Registered Certificates, that is a
supplement to the Base Prospectus.
"Purchase Price": With respect to any Mortgage Loan, a price equal to the
unpaid principal balance of the Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest (excluding, in the case of a
Hyper-Amortization Loan after its Anticipated Repayment Date, Additional
Interest) on the Mortgage Loan at the related Mortgage Rate to but not including
the Due Date in the Collection Period of purchase, (b) all related unreimbursed
Servicing Advances, and (c) if paid in connection with any repurchase of such
Mortgage Loan by the Mortgage Loan Seller or any Affiliate thereof pursuant to
Section 2.03, all accrued and unpaid Advance Interest in respect of related
Advances. With respect to any REO Property, a price equal to the unpaid
principal balance of the related REO Loan as of the date of purchase, together
with (a) all accrued and unpaid interest (excluding, in the case of a
Hyper-Amortization Loan after its Anticipated Repayment Date, Additional
Interest) on such REO Loan at the related Mortgage Rate to but not including the
Due Date in the Collection Period of purchase, (b) all related unreimbursed
Servicing Advances, and (c) if paid in connection with any repurchase of such
REO Property by the Mortgage Loan Seller or any Affiliate thereof pursuant to
Section 2.03, all accrued and unpaid Advance Interest in respect of related
Advances. The Purchase Price of any Mortgage Loan or REO Property is intended to
include, without limitation, principal and interest previously advanced with
respect thereto and not previously reimbursed.
"PV Yield Loss Amount": As defined in Section 4.01(a).
"Qualified Appraiser": In connection with the appraisal of any Mortgaged
Property or REO Property, an Independent MAI-designated appraiser with at least
five years of experience in respect of the relevant geographic location and
property type.
"Qualified Insurer": An insurance company or security or bonding company
qualified to write the related Insurance Policy in the relevant jurisdiction.
"Rating Agency": Each of _____ and _________.
"Realized Loss": With respect to each defaulted Mortgage Loan as to which a
Final Recovery Determination has been made, or with respect to any REO Loan as
to which a Final Recovery Determination has been made as to the related REO
Property, an amount (not less than zero) equal to (i) the unpaid principal
balance of such Mortgage Loan or REO Loan, as the case may be, as of the
commencement of the Collection Period in which the Final Recovery Determination
was made, plus (ii) all accrued but unpaid interest (excluding, in the case a
Hyper-Amortization Loan after its Anticipated Repayment Date, Additional
Interest) on such Mortgage Loan or REO Loan, as the case may be (without taking
into account the amounts described in subclause (iv) of this sentence), at the
related Mortgage Rate to but not including the Due Date in the Collection Period
in which the Final Recovery Determination was made, plus (iii) any related
unreimbursed Servicing Advances as of the commencement of the Collection Period
in which the Final Recovery Determination was made, together with any new
related Servicing Advances made during such Collection Period, minus (iv) all
payments and proceeds, if any, received in respect of such Mortgage Loan or REO
Loan, as the case may be, during the Collection Period in which such Final
Recovery Determination was made (net of any related Liquidation Expenses paid
therefrom).
With respect to any Mortgage Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or interest (other than any Default Interest)
so forgiven.
With respect to any Mortgage Loan as to which the Mortgage Rate thereon has
been permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or Special Servicer pursuant to Section 3.20, the amount of
the consequent reduction, if any, in the interest portion of each successive
Monthly Payment due thereon. Each such Realized Loss shall be deemed to have
been incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": The Class X, Class A-1, Class A-2, Class
B,(Class C, Class D and Class E Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time. If The Wall Street Journal ceases to
publish such "prime rate", then the Trustee, in its sole discretion, shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"Reinvestment Yield": As defined in Section 4.01(a).
"REMIC": A "real estate mortgage investment conduit" as defined in Section
860D of the Code.
"REMIC Administrator": ________________________ its successor in interest,
or any successor REMIC administrator appointed as herein provided.
"REMIC I": The segregated pool of assets subject hereto, constituting the
primary trust created hereby and to be administered hereunder, with respect to
which a REMIC election is to be made, consisting of: (i) the Mortgage Loans as
from time to time are subject to this Agreement and all payments under and
proceeds of such Mortgage Loans received or receivable after the Cut-off Date
(other than payments of principal, interest and other amounts due and payable on
the Mortgage Loans on or before the Cut-off Date), together with all documents,
Escrow Payments and Reserve Funds delivered or caused to be delivered hereunder
with respect to such Mortgage Loans by the Mortgage Loan Seller; (ii) any REO
Property acquired in respect of a Mortgage Loan and all payments and proceeds of
such REO Property; and (iii) such funds or assets as from time to time are
deposited in the Distribution Account, the Certificate Account and the REO
Account (if established).
"REMIC I Regular Interest": Any of the 22 separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto. The
designations for the respective REMIC I Regular Interests are set forth in the
Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any Major REMIC I Regular
Interest, for any Distribution Date, the Weighted Average Adjusted Net Mortgage
Rate for such Distribution Date. With respect to any Minor REMIC I Regular
Interest, for any Distribution Date, the fixed rate per annum specified as such
in respect of such Minor REMIC I Regular Interest in the Preliminary Statement
hereto.
"REMIC II": The segregated pool of assets consisting of all of the REMIC I
Regular Interests, with respect to which a separate REMIC election is to be
made.
"REMIC II Certificate": Any Certificate, other than a Class R-I
Certificate.
"REMIC II Regular Certificate": Any REMIC II Certificate, other than a
Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
proposed, temporary and final Treasury regulations and any published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "[SPECIAL
SERVICER], as Special Servicer, in trust for registered holders of NationsLink
Funding Corporation, Mortgage Pass-Through Certificates, Series 199__-__".
"REO Acquisition": The acquisition of any REO Property pursuant to Section
3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be outstanding
with respect to each REO Property acquired in respect of any Mortgage Loan. Each
REO Loan shall be deemed to provide for monthly payments of principal and/or
interest equal to its Assumed Monthly Payment and otherwise to have the same
terms and conditions as the predecessor Mortgage Loan. Each REO Loan shall be
deemed to have an initial unpaid principal balance and Stated Principal Balance
equal to the unpaid principal balance and Stated Principal Balance,
respectively, of the predecessor Mortgage Loan as of the date of the related REO
Acquisition. In addition, all Monthly Payments (other than any Balloon Payment),
Assumed Monthly Payments (in the case of a Balloon Mortgage Loan delinquent in
respect of its Balloon Payment) and other amounts due and owing, or deemed to be
due and owing, in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, shall be deemed to continue to be due and owing in
respect of an REO Loan. All amounts payable or reimbursable to the Master
Servicer, the Special Servicer and/or the Trustee in respect of the related
Mortgage Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Servicing Fees and any unreimbursed Advances, together
with any Advance Interest accrued and payable to the Master Servicer, Special
Servicer and/or the Trustee in respect of such Advances, shall continue to be
payable or reimbursable to the Master Servicer, Special Servicer and/or Trustee
as the case may be, in respect of an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special Servicer on
behalf of the Trustee for the benefit of the Certificateholders pursuant to
Section 3.09 through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from the
ownership, operation or leasing of any REO Property.
"REO Status Report": A report or reports substantially in the form of
Exhibit E attached hereto setting forth, among other things, with respect to
each REO Property that was included in the Trust Fund as of the close of
business on the Determination Date immediately preceding the preparation of such
report or reports, (i) the Acquisition Date of such REO Property, (ii) the
amount of income collected with respect to any REO Property (net of related
expenses) and other amounts, if any, received on such REO Property during the
Collection Period ending on such Determination Date and (iii) the value of the
REO Property based on the most recent Appraisal or other valuation thereof
available to the Master Servicer as of such Determination Date (including any
valuation prepared internally by the Special Servicer).
"REO Tax": As defined in Section 3.17(a).
"Request for Release": A request for release signed by a Servicing Officer
of, as applicable, the Master Servicer or Special Servicer in the form of
Exhibit D attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance carrier,
claims-paying ability ratings at least equal to the following minimum ratings
assigned to such carrier by at least two of the following parties and, in any
event, by each Rating Agency that assigned a rating to the claims-paying ability
of such insurance carrier: _________ ("____" or better), _______________________
("__" or better), ____ ("___" or better), _____________________________,
_____________________________________ ("__" or better) and ______________
("____" or better); unless each of the Rating Agencies has confirmed in writing
that an insurance company with lower or fewer claims-paying ability ratings
shall not result, in and of itself, in a downgrading, withdrawal or
qualification of the then current rating assigned by such Rating Agency to any
Class of Certificates.
"Reserve Account": The account or accounts created and maintained pursuant
to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts delivered
by the related Mortgagor to be held in escrow by or on behalf of the mortgagee
representing reserves for principal and interest payments, repairs,
replacements, capital improvements (including, without limitation, tenant
improvements and leasing commissions), and/or environmental testing and
remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to the Trustee, any officer
assigned to the Asset-Backed Securities Trust Services Group, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers to whom a
particular matter is referred by the Trustee because of such officer's knowledge
of and familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any security
agreement, chattel mortgage or similar document or instrument, whether contained
in the related Mortgage or executed separately, creating in favor of the holder
of such Mortgage a security interest in the personal property constituting
security for repayment of such Mortgage Loan.
"Senior Certificate": Any Class A-1, Class A-2 or Class X Certificate.
"Senior Principal Distribution Cross-Over Date": The first Distribution
Date as of which the aggregate Class Principal Balance of the Class A-1 and
Class A-2 Certificates outstanding immediately prior to such Distribution Date
exceeds the sum of (a) the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date, plus
(b) the lesser of (i) the Principal Distribution Amount for such Distribution
Date and (ii) the portion of the Available Distribution Amount for such
Distribution Date that will remain after the distributions of interest to be
made on the Senior Certificates on such Distribution Date have been so made.
"Sequential Pay Certificate": Any Class A, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J or Class K Certificate.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred or to be incurred, as the context requires,
by the Master Servicer or the Special Servicer (or, if applicable, the Trustee)
in connection with the servicing of a Mortgage Loan after a default, delinquency
or other unanticipated event, or in connection with the administration of any
REO Property, including, but not limited to, the cost of (a) compliance with the
obligations of the Master Servicer and/or the Special Servicer set forth in
Sections 3.03(c) and 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, (c) obtaining any Liquidation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan or REO Property,
(d) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including, without limitation, foreclosures, and (e) the operation,
management, maintenance and liquidation of any REO Property; provided that
notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer or the Special Servicer, such as costs
for office space, office equipment, supplies and related expenses, employee
salaries and related expenses and similar internal costs and expenses, or costs
incurred by either such party in connection with its purchase of any Mortgage
Loan or REO Property pursuant to any provision of this Agreement. All Emergency
Advances made by the Special Servicer hereunder shall be considered "Servicing
Advances" for the purposes hereof.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan, the
Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be part
of the related Mortgage File), including, without limitation, the related
environmental site assessment report(s) referred to in Section 2.05(c)(xiv), in
the possession of the Master Servicer or the Special Servicer and relating to
the origination and servicing of any Mortgage Loan.
"Servicing Officer": Any officer or authorized signatory of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of such officers and authorized signatories furnished
by such party to the Trustee and the Depositor on the Closing Date, as such list
may be amended from time to time thereafter.
"Servicing Return Date": With respect to any Corrected Mortgage Loan, the
date that servicing thereof is returned by the Special Servicer to the Master
Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer and the
Special Servicer, to service and administer the Mortgage Loans and any REO
Properties for which such Person is responsible hereunder: (a) in accordance
with the higher standard of (i) the same manner in which, and with the same
care, skill, prudence and diligence with which, the Master Servicer or Special
Servicer, as the case may be, generally services and administers comparable
mortgage loans or assets, as applicable, for other third parties, and (ii) the
same manner in which, and with the same care, skill, prudence and diligence with
which, the Master Servicer or the Special Servicer, as the case may be,
generally services and administers comparable mortgage loans or assets, as
applicable, owned by it; (b) with a view to the timely collection of all Monthly
Payments of principal and interest under the Mortgage Loans or, if a Mortgage
Loan comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery on such Mortgage Loan to the Certificateholders (as a collective whole)
on a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders to be performed at the related
Net Mortgage Rate (or, in the case of a Hyper-Amortization Loan after its
Anticipated Repayment Date, the related Net Mortgage Rate in effect immediately
prior to such Anticipated Repayment Date)); and (c) without regard to: (i) any
relationship that the Master Servicer or the Special Servicer, as the case may
be, or any Affiliate thereof may have with any related Mortgagor; (ii) the
ownership of any Certificate by the Master Servicer or the Special Servicer, as
the case may be, or by any Affiliate thereof; (iii) the Master Servicer's
obligation to make Advances; (iv) the Special Servicer's obligation to make (or
to direct the Master Servicer to make) Servicing Advances; and (v) the right of
the Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, to receive compensation for its services
or reimbursement of costs hereunder or with respect to any particular
transaction.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02(a), a hypothetical
Certificate of any Class of REMIC II Regular Certificates evidencing a $1,000
denomination or, in the case of a Class X Certificate, a 100% Percentage
Interest in the related Class.
"Special Servicer": ________________________________, its successor in
interest, or any successor special servicer appointed as herein provided.
"Special Servicer Loan Status Report": A report or reports setting forth,
among other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report or reports, (i) the
aggregate unpaid principal balance of all Specially Serviced Mortgage Loans and
(ii) a loan-by-loan listing of all Specially Serviced Mortgage Loans indicating
their status, date and reason for transfer to the Special Servicer,
substantially in the form, and including such additional information, as is
contemplated on page [ ] of the Prospectus Supplement.
"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan and each REO Loan, the fee designated as such and payable to the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, 0._____% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which any of
the following events has occurred:
(a) the related Mortgagor has failed to make when due any Balloon Payment,
which failure has continued, or the Master Servicer determines, in its
good faith and reasonable judgment, will continue, unremedied for 30
days; or
(b) the related Mortgagor has failed to make when due any Monthly Payment
(other than a Balloon Payment) or any other payment required under the
related Mortgage Note or the related Mortgage, which failure has
continued, or the Master Servicer determines, in its good faith and
reasonable judgment, will continue, unremedied for 60 days; or
(c) the Master Servicer has determined, in its good faith and reasonable
judgment, that a default in the making of a Monthly Payment
(including, without limitation, a Balloon Payment) or any other
payment required under the related Mortgage Note or the related
Mortgage is likely to occur within 30 days and is likely to remain
unremedied for at least 60 days or, in the case of a Balloon Payment,
for at least 30 days; or
(d) there shall have occurred a default under the related loan documents,
other than as described in clause (a) or (b) above, that may, in the
Master Servicer's good faith and reasonable judgment, materially
impair the value of the related Mortgaged Property as security for the
Mortgage Loan or otherwise materially and adversely affect the
interests of Certificateholders, which default has continued
unremedied for the applicable cure period under the terms of the
Mortgage Loan (or, if no cure period is specified, 60 days); or
(e) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present
or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
related Mortgagor and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
(f) the related Mortgagor shall have consented to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to such Mortgagor or of or relating to all or
substantially all of its property; or
(g) the related Mortgagor shall have admitted in writing its inability to
pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made
an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations; or
(h) the Master Servicer shall have received notice of the commencement of
foreclosure or similar proceedings with respect to the related
Mortgaged Property;
provided that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, when the related Mortgaged Property has become an REO Property, or at such
time as such of the following as are applicable occur with respect to the
circumstances identified above that caused the Mortgage Loan to be characterized
as a Specially Serviced Mortgage Loan (and provided that no other Servicing
Transfer Event then exists):
(w) with respect to the circumstances described in clauses (a) and (b)
above, the related Mortgagor has made three consecutive full and
timely Monthly Payments under the terms of such Mortgage Loan (as such
terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses (c), (e), (f)
and (g) above, such circumstances cease to exist in the good faith and
reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (d) above, such
default is cured; and
(z) with respect to the circumstances described in clause (h) above, such
proceedings are terminated.
"Standby Fee": With respect to each Mortgage Loan and each REO Loan, the
fee designated as such and payable to the Special Servicer pursuant to the
second paragraph of Section 3.11(c).
"Standby Fee Rate": With respect to each Mortgage Loan and each REO Loan,
0.02% per annum.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the Due Date on
which the last payment of principal is due and payable under the terms of the
related Mortgage Note as in effect on the Closing Date, without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 3.20 and, in the case of a
Hyper-Amortization Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan (and any
successor REO Loan), a principal amount initially equal to the Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each Distribution
Date (to not less than zero) by (i) all payments (or P&I Advances in lieu
thereof) of, and all other collections allocated as provided in Section 1.02 to,
principal of or with respect to such Mortgage Loan (or successor REO Loan) that
are (or, if they had not been applied to cover any Additional Trust Fund
Expense, would have been) distributed to Certificateholders on such Distribution
Date, and (ii) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan (or successor REO Loan) during the related Collection Period.
Notwithstanding the foregoing, if a Liquidation Event occurs in respect of any
Mortgage Loan or REO Property, then the "Stated Principal Balance" of such
Mortgage Loan or of the related REO Loan, as the case may be, shall be zero
commencing as of the Distribution Date in the Collection Period next following
the Collection Period in which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K or Residual Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicer Termination Compensation": As defined in Section 3.22(d).
"Sub-Servicer Termination Fee": As defined in Section 3.22(d).
"Sub-Servicing Agreement": The written contract between the Master Servicer
or the Special Servicer, on the one hand, and any Sub-Servicer, on the other
hand, relating to servicing and administration of Mortgage Loans as provided in
Section 3.22.
"Tax Matters Person": With respect to each of REMIC I and REMIC II, the
Person designated as the "tax matters person" of such REMIC in the manner
provided under Treasury regulation section 1.860F-4(d) and temporary Treasury
regulation section 301.6231(a)(7)-1T. The "Tax Matters Person" for each of REMIC
I and REMIC II is the Holder of Certificates evidencing the largest Percentage
Interest in the related Class of Residual Certificates.
"Tax Returns": The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each of REMIC I and REMIC II due to its classification as a REMIC
under the REMIC Provisions, together with any and all other information, reports
or returns that may be required to be furnished to the Certificateholders or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal or Applicable State Law.
"Termination Strip": As defined in Section 3.22(d).
"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of REMIC I and REMIC II.
"Trustee": _________________, in its capacity as Trustee hereunder, its
successor in interest, or any successor trustee appointed as herein provided.
"Trustee Fee": The fee payable to the Trustee on each Distribution Date for
its services as Trustee hereunder, in an aggregate amount equal to one month's
interest at the Trustee Fee Rate in respect of each Mortgage Loan and REO Loan,
calculated on the same basis as is applicable to the accrual of interest on such
Mortgage (i.e., on the basis of, as applicable, a 360-day year consisting of
twelve 30-day months or the actual number of days elapsed during each calendar
month in a 360-day year) and accrued on the Stated Principal Balance of such
Mortgage Loan or REO Loan, as the case may be, immediately prior to such
Distribution Date for the most recently ended calendar month.
"Trustee Fee Rate": A rate of 0.005% per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC financing statements on Form UCC-1, Form
UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to any REMIC I Regular
Interest, for any Distribution Date, one month's interest (calculated on the
basis of a 360-day year consisting of twelve 30-day months) at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
I Regular Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of any REMIC I Regular Interest for
any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) the Net Aggregate Prepayment
Interest Shortfall, if any, for such Distribution Date, multiplied by (ii) a
fraction, the numerator of which is the Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest for such Distribution Date, and the
denominator of which is the aggregate Uncertificated Accrued Interest in respect
of all the REMIC I Regular Interests for such Distribution Date.
"Uncertificated Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Principal Balance of each REMIC I Regular Interest
shall equal the amount specified as its initial Uncertificated Principal Balance
in the Preliminary Statement hereto. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall be
permanently reduced by all distributions of principal deemed to have been made
thereon on such Distribution Date pursuant to Section 4.05(a) and, if and to the
extent appropriate, shall be further permanently reduced on such Distribution
Date as provided in Section 4.05(d).
"United States Person": A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 94.0% of the Voting Rights shall be allocated among the
Holders of the various outstanding Classes of Sequential Pay Certificates in
proportion to the respective Class Principal Balances of their Certificates, and
6.0% of the Voting Rights shall be allocated to the Holders of the Class X
Certificates. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the respective Adjusted Net Mortgage
Rates for all the Mortgage Loans and REO Loans, weighted on the basis of the
respective Stated Principal Balances of such Mortgage Loans and REO Loans
outstanding immediately prior to such Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as to
which a Workout Fee is payable, ___%.
SECTION 1.02 Certain Calculations in Respect of the Mortgage
Pool.
(a) All amounts collected in respect of any Group of Cross-Collateralized
Mortgage Loans in the form of payments from Mortgagors, Insurance Proceeds and
Liquidation Proceeds, shall be applied by the Master Servicer among such
Mortgage Loans in accordance with the express provisions of the related loan
documents and, in the absence of such express provisions, on a pro rata basis in
accordance with the respective amounts then "due and owing" as to each of the
Mortgage Loans constituting such Group. All amounts collected in respect of or
allocable to any particular individual Mortgage Loan (whether or not such
Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments
from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied for
purposes of this Agreement (including, without limitation, for purposes of
determining distributions on the Certificates pursuant to Article IV and
additional compensation payable to the Master Servicer, the Special Servicer and
any Sub-Servicers) as follows: first, as a recovery of any related unreimbursed
Servicing Advances and, if applicable, unpaid Liquidation Expenses; second, as a
recovery of accrued and unpaid interest (excluding, in the case of a
Hyper-Amortization Loan after its Anticipated Repayment Date, Additional
Interest) at the related Mortgage Rate on such Mortgage Loan to but not
including, as appropriate, the date of receipt or, in the case of a full Monthly
Payment from any Mortgagor, the related Due Date; third, as a recovery of
principal of such Mortgage Loan then due and owing, including, without
limitation, by reason of acceleration of the Mortgage Loan following a default
thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage
Loan, as a recovery of principal to the extent of its entire remaining unpaid
principal balance); fourth, as a recovery of amounts to be currently applied to
the payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items;
fifth, as a recovery of Reserve Funds to the extent then required to be held in
escrow; sixth, as a recovery of any Prepayment Premium then due and owing under
such Mortgage Loan; seventh, as a recovery of any Default Charges then due and
owing under such Mortgage Loan; eighth, as a recovery of any assumption fees and
modification fees then due and owing under such Mortgage Loan; ninth, as a
recovery of any other amounts then due and owing under such Mortgage Loan other
than remaining unpaid principal; tenth, as an early recovery of any remaining
principal of such Mortgage Loan to the extent of its entire remaining unpaid
principal balance; and, eleventh, in the case of a Hyper-Amortization Loan after
its Anticipated Repayment Date, as a recovery of accrued and unpaid Additional
Interest on such Hyper-Amortization Loan, to but not including the date of
receipt. The Master Servicer shall, to the fullest extent permitted by
applicable law and the related Mortgage Loan documents, apply all payments on
and proceeds of each Mortgage Loan to amounts actually due and owing from the
related Mortgagor in a manner consistent with the foregoing and shall maintain
accurate records of how all such payments and proceeds are actually applied and
are applied for purposes of this Agreement.
(b) Collections in respect of each REO Property (exclusive of amounts to be
applied to the payment of the costs of operating, managing, maintaining and
disposing of such REO Property) shall be applied for purposes of this Agreement
(including, without limitation for purposes of determining distributions on the
Certificates pursuant to Article IV and additional compensation payable to the
Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first,
as a recovery of any related unreimbursed Servicing Advances; second, as a
recovery of accrued and unpaid interest (excluding, in the case of an REO Loan
that relates to a Hyper-Amortization Loan after its Anticipated Repayment Date,
Additional Interest) on the related REO Loan at the related Mortgage Rate to but
not including the Due Date in the Collection Period of receipt; third, as a
recovery of principal of the related REO Loan to the extent of its entire unpaid
principal balance; fourth, as a recovery of any Prepayment Premium then due and
owing under such REO Loan; fifth, as a recovery of any other amounts (including,
without limitation, Default Charges) deemed to be due and owing in respect of
the related REO Loan; and, sixth, in the case of an REO Loan that relates to a
Hyper-Amortization Loan after its Anticipated Repayment Date, as a recovery of
accrued and unpaid Additional Interest on such REO Loan to but not including the
date of receipt.
(c) For the purposes of calculating distributions pursuant to this
Agreement, Additional Interest on a Hyper-Amortization Loan or a successor REO
Loan shall be deemed not to constitute principal or any portion thereof and
shall not be added to the unpaid principal balance or Stated Principal Balance
of such Hyper-Amortization Loan or successor REO Loan. To the extent any
Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO
Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Loan, as the case may be, that constitute additional
servicing compensation payable to the Master Servicer and/or Special Servicer
pursuant to Section 3.11, are insufficient to cover the full amount of such fees
and charges, such amounts shall be allocated between such of those fees and
charges as are payable to the Master Servicer, on the one hand, and such of
those fees and charges as are payable to the Special Servicer, on the other, pro
rata in accordance with their respective entitlements, and such payments so made
shall constitute the sole amount that will be paid to the Master Servicer and
the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the reports to be delivered thereby pursuant to Section 4.02(b).
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust be
established pursuant to this Agreement. _____________________ is hereby
appointed, and does hereby agree to act, as Trustee hereunder and, in such
capacity, to hold the Trust Fund in trust for the exclusive use and benefit of
all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) Each of the Depositor and, at the direction of the Depositor given
pursuant to the Mortgage Loan Purchase Agreement, the Mortgage Loan Seller,
concurrently with its execution and delivery hereof, does hereby assign,
transfer, sell and otherwise convey to the Trustee without recourse for the
benefit of the Certificateholders all the right, title and interest of the
Depositor and the Mortgage Loan Seller, respectively, in, to and under the
Mortgage Loans identified on the Mortgage Loan Schedule and all other assets
included or to be included in REMIC I. Such assignment includes (i) the Mortgage
Loans as from time to time are subject to this Agreement and all payments under
and proceeds of such Mortgage Loans received or receivable after the Cut-off
Date (other than payments of principal, interest and other amounts due and
payable on the Mortgage Loans on or before the Cut-off Date), together with all
documents delivered or caused to be delivered hereunder with respect to such
Mortgage Loans by the Mortgage Loan Seller; (ii) any REO Property acquired in
respect of a Mortgage Loan; and (iii) such funds or assets as from time to time
are deposited in the Distribution Account, the Certificate Account and the REO
Account (if established).
It is intended that the conveyance of the Mortgage Loans and the related
rights and property by the Depositor and the Mortgage Loan Seller to the
Trustee, as provided in this Section be, and be construed as, an absolute
transfer of the Mortgage Loans by the Depositor and the Mortgage Loan Seller to
the Trustee for the benefit of the Certificateholders. It is, further, not
intended that such conveyance be deemed a pledge of the Mortgage Loans by the
Depositor or the Mortgage Loan Seller to the Trustee to secure a debt or other
obligation of the Depositor or the Mortgage Loan Seller, as the case may be.
However, in the event that the Mortgage Loans are held to be property of the
Depositor or the Mortgage Loan Seller, or if for any reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans, then it is
intended that, (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (ii) the conveyance provided for in this Section shall be deemed
to be a grant by the Depositor and the Mortgage Loan Seller to the Trustee, for
the benefit of the Certificateholders, of a security interest in all of their
respective right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (A) the Mortgage
Notes, the Mortgages, any related insurance policies and all other documents in
the related Mortgage Files, (B) all amounts payable to the holders of the
Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including without limitation all amounts from time
to time held or invested in the Certificate Account, the Distribution Account or
the REO Account, whether in the form of cash, instruments, securities or other
property; (iii) the possession by the Trustee or its agent of the Mortgage Notes
and such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or a Person designated by such secured
party, for purposes of perfecting the security interest pursuant to the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction (including, without limitation, Section 9-305, 8-313 or 8-321
thereof); and (d) notifications to, and acknowledgments, receipts or
confirmations from, Persons holding such property shall be deemed to be
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. The Depositor, the
Mortgage Loan Seller and the Trustee shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement. At the Depositor's direction, the Trustee shall execute and
deliver, and the Master Servicer shall (at its expense) file, all filings
necessary to maintain the effectiveness of any original filings necessary under
the Uniform Commercial Code as in effect in any jurisdiction to perfect and
maintain the Trustee's security interest in or lien on the Trust Fund, including
without limitation (A) continuation statements and (B) such other statements as
may be occasioned by any transfer of any interest of the Trustee, the Master
Servicer, the Special Servicer or the Depositor in the Trust Fund. In connection
herewith, the Trustee shall have all of the rights and remedies of a secured
party and creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
(c) In connection with the Mortgage Loan Seller's assignment pursuant to
subsection (b) above, the Mortgage Loan Seller shall deliver to and deposit
with, or cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with a copy to the Master Servicer), on or before the Closing
Date, the Mortgage File for each Mortgage Loan so assigned by the Mortgage Loan
Seller hereunder. If the Mortgage Loan Seller is unable to deliver or cause the
delivery of any original Mortgage Note, it may deliver a copy of such Mortgage
Note, together with a lost note affidavit, and shall thereby be deemed to have
satisfied the document delivery requirements of this Section 2.01(c). If the
Mortgage Loan Seller cannot so deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of any of the documents and/or instruments
referred to in clauses [(ii), (iv), (viii), (xi)(A) and (xii)] of the definition
of "Mortgage File", with evidence of recording or filing (as the case may be)
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, as the case may be, the delivery requirements of this Section 2.01(c)
shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File,
provided that a copy of such document or instrument (without evidence of
recording or filing thereon, but certified (which certificate may relate to
multiple documents and/or instruments) by the Mortgage Loan Seller to be a true
and complete copy of the original thereof submitted for recording or filing, as
the case may be) is delivered to the Trustee or a Custodian appointed thereby on
or before the Closing Date, and either the original of such missing document or
instrument, or a copy thereof, with evidence of recording or filing, as the case
may be, thereon, is delivered to the Trustee or such Custodian within _____ days
of the Closing Date (or within such longer period after the Closing Date as the
Trustee may consent to, which consent shall not be unreasonably withheld so long
as the Mortgage Loan Seller has provided the Trustee with evidence of such
submission for recording or filing, as the case may be, or has certified to the
Trustee as to the occurrence of such submission for recording or filing, as the
case may be, and is, as certified to the Trustee no less often than monthly, in
good faith attempting to obtain from the appropriate recording or filing office
such original or copy). If the Mortgage Loan Seller cannot or does not so
deliver, or cause to be delivered, as to any Mortgage Loan, the original of any
of the documents and/or instruments referred to in clauses [(iii), (v), and
(xi)(B)] of the definition of "Mortgage File", because such document or
instrument has been delivered for recording or filing, as the case may be, the
delivery requirements of this Section 2.01(c) shall be deemed to have been
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the related Mortgage File, provided that a copy of such
document or instrument (without evidence of recording or filing thereon, but
certified (which certificate may relate to multiple documents and/or
instruments) by the Mortgage Loan Seller to be a true and complete copy of the
original thereof submitted for recording or filing, as the case may be) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such missing document or instrument, or
a copy thereof, with evidence of recording or filing, as the case may be,
thereon, is delivered to the Trustee or such Custodian within _____ days of the
Closing Date (or within such longer period after the Closing Date as the Trustee
may consent to, which consent shall not be unreasonably withheld so long as the
Mortgage Loan Seller has provided the Trustee with evidence of such submission
for recording or filing, as the case may be, or has certified to the Trustee as
to the occurrence of such submission for recording or filing, as the case may
be, and is, as certified to the Trustee no less often than monthly, in good
faith attempting to obtain from the appropriate recording or filing office such
original or copy). If the Mortgage Loan Seller cannot so deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred to in clause (ix) of the definition of
"Mortgage File" solely because such policy has not yet been issued, the delivery
requirements of this Section 2.01(c) shall be deemed to be satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that the Mortgage Loan Seller shall have
delivered to the Trustee or a Custodian appointed thereby, on or before the
Closing Date, a commitment for title insurance "marked-up" at the closing of
such Mortgage Loan, and the Mortgage Loan Seller shall deliver to the Trustee or
such Custodian, promptly following the receipt thereof, the original related
lender's title insurance policy (or a copy thereof). In addition,
notwithstanding anything to the contrary contained herein, if there exists with
respect to any Group of related Cross-Collateralized Mortgage Loans only one
original of any document referred to in the definition of "Mortgage File"
covering all the Mortgage Loans in such Group, then the inclusion of the
original of such document in the Mortgage File for any of the Mortgage Loans in
such Group shall be deemed an inclusion of such original in the Mortgage File
for each such Mortgage Loan. None of the Trustee, any Custodian, the Depositor,
the Master Servicer or the Special Servicer shall in any way be liable for any
failure by the Mortgage Loan Seller to comply with the delivery requirements of
this Section 2.01(c).
If any of the endorsements referred to in clause (i) of the definition of
"Mortgage File", any of the assignments of Mortgage referred to in clause (iii)
of the definition of "Mortgage File", any of the assignments of Assignment of
Leases referred to in clause (v) of the definition of "Mortgage File", or any of
the assignments of Security Agreement referred to in clause (vii) of the
definition of "Mortgage File" are delivered to the Trustee in blank, the Trustee
shall (without being obligated to record or file such) be responsible for
completing the related endorsement or assignment in the name of the Trustee (in
such capacity).
(d) The Mortgage Loan Seller shall, as to each Mortgage Loan, at its own
expense, promptly (and in any event within _____ days of the Closing Date)
submit or cause to be submitted for recording or filing, as the case may be, in
the appropriate public office for real property records or UCC Financing
Statements, as appropriate, each assignment referred to in clauses (iii) and (v)
of the definition of "Mortgage File" and each UCC-1, UCC-2 and UCC-3, if any,
referred to in clause (xi)(B) of the definition of "Mortgage File". Each such
assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC-1, UCC-2 and UCC-3
shall reflect that the file copy thereof should be returned to the Trustee
following filing. At such time as such assignments, UCC-1s, UCC-2s and UCC-3s
have been returned to the Trustee, the Trustee shall promptly forward a copy of
each thereof to the Master Servicer. If any such document or instrument is lost
or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Mortgage Loan Seller shall promptly prepare or cause the
preparation of a substitute therefor or cure or cause the curing of such defect,
as the case may be, and thereafter the Mortgage Loan Seller, shall, at its own
expense, submit the substitute or corrected documents or cause such to be
submitted for recording or filing, as appropriate.
(e) All documents and records in the Mortgage Loan Seller's possession (or
under its control) relating to the Mortgage Loans that are not required to be a
part of a Mortgage File in accordance with the definition thereof, together with
all Escrow Payments and Reserve Funds in the possession of the Mortgage Loan
Seller (or under its control) with respect to the Mortgage Loans, shall be
delivered or caused to be delivered by the Mortgage Loan Seller to the Master
Servicer, within _____ days of the Closing Date, and shall be retained by the
Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(f) The Mortgage Loan Seller shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, at its
own expense, promptly (and in any event within ____ days of the Closing Date)
notify the related ground lessor of the transfer of such Mortgage Loan to the
Trust pursuant to this Agreement and inform such ground lessor that any notices
of default under the related Ground Lease should thereafter be forwarded to the
Trustee.
SECTION 2.02 Acceptance of REMIC I by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to any
exceptions noted on the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Schedule VI, to the provisions of Section 2.01 and to the
further review provided for in this Section 2.02, of, with respect to each
Mortgage Loan, an original Mortgage Note endorsed to the Trustee, an original or
a copy of the Mortgage (with evidence of recording thereon), and an original
assignment of such Mortgage executed in favor of the Trustee (in such capacity)
and of all other assets included in REMIC I, in good faith and without notice of
any adverse claim, and declares that it or a Custodian on its behalf holds and
will hold the documents delivered or caused to be delivered by the Mortgage Loan
Seller in respect of the Mortgage Loans, and that it holds and will hold such
other assets included in REMIC I, in trust for the exclusive use and benefit of
all present and future Certificateholders.
(b) Within ___ days of the Closing Date (or, in the case of any Mortgage
Loan as to which a Servicing Transfer Event has occurred during such____-day
period of which event the Trustee has notice, within the shorter of ___ days of
the Closing Date and ____ Business Days of the Trustee's receiving such notice),
the Trustee or a Custodian on its behalf shall review each of the documents
delivered or caused to be delivered by the Mortgage Loan Seller with respect to
each Mortgage Loan pursuant to Section 2.01(c); and, promptly following such
review, the Trustee shall, subject to Section 2.02(d), certify in writing to
each of the Depositor, the Master Servicer, the Special Servicer and the
Mortgage Loan Seller that as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full), and except as specifically
identified in any exception report annexed to such certification, (i) all
documents specified in clauses [(i) through (iii), (ix)] and, if the Mortgage
Loan Schedule specifies that the related Mortgagor has a leasehold interest in
the related Mortgaged Property, (xiii) of the definition of "Mortgage File" are
in its possession or the possession of a Custodian on its behalf, or the
Mortgage Loan Seller has otherwise satisfied the delivery requirements in
respect of such documents in accordance with Section 2.01(c), (ii) all documents
received by it or any Custodian in respect of such Mortgage Loan have been
reviewed by it or by a Custodian on its behalf and appear regular on their face
and relate to such Mortgage Loan, and (iii) based on such examination and only
as to the foregoing documents, the information set forth in the Mortgage Loan
Schedule with respect to the items specified in clauses [(ii), (iii), (iv) and
(vi)(B)] of the definition of "Mortgage Loan Schedule" is correct.
(c) The Trustee or a Custodian on its behalf shall review each of the
documents relating to the Mortgage Loans received thereby subsequent to the
Closing Date; and, on or about the first anniversary of the Closing Date, the
Trustee shall, subject to Section 2.02(d), certify in writing to each of the
Depositor, the Master Servicer, the Special Servicer and, the Mortgage Loan
Seller that as to each Mortgage Loan listed on the Mortgage Loan Schedule (other
than any Mortgage Loan paid in full or otherwise liquidated), and except as
specifically identified in any exception report annexed to such certification,
(i) all documents specified in clauses [(i), (ii), (ix)] and, if the Mortgage
Loan Schedule specifies that the related Mortgagor has a leasehold interest in
the related Mortgaged Property, (xiii) of the definition of "Mortgage File" are
in its possession or the possession of a Custodian on its behalf, or the
Mortgage Loan Seller has otherwise satisfied the delivery requirements in
respect of such documents in accordance with Section 2.01(c), (ii) it or a
Custodian on its behalf has received either the original or copy of each of the
assignments specified in clauses [(iii) and (v)] of the definition of "Mortgage
File" that were delivered by the Mortgage Loan Seller with evidence of recording
thereon, (iii) all documents received by it or any Custodian in respect of such
Mortgage Loan have been reviewed by it or by such Custodian on its behalf and
appear regular on their face and relate to such Mortgage Loan, and (iv) based on
the examinations referred to in subsection (b) above and this subsection (c) and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule with respect to the items specified in clauses [(ii), (iii), (iv)
and (vi)(B)] of the definition of "Mortgage Loan Schedule", is correct.
(d) It is herein acknowledged that, notwithstanding any other provision
hereof, neither the Trustee nor any Custodian is under any duty or obligation
(i) to determine whether any of the documents specified in clauses [(iv) through
(viii), (x) through (xii) and (xiv) through (xv)] of the definition of "Mortgage
File" exist or are required to be delivered by the Mortgage Loan Seller in
respect of any Mortgage Loan or (ii) to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are genuine, enforceable, in
recordable form or appropriate for the represented purpose, or that they are
other than what they purport to be on their face.
(e) If, in the process of reviewing the documents delivered or caused to be
delivered by the Mortgage Loan Seller pursuant to Section 2.01(c), the Trustee
or any Custodian discovers that any document required to have been delivered
pursuant to Section 2.01(c) has not been so delivered, or discovers that any of
the documents that were delivered has not been properly executed, contains
information that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule, or is defective on its face
(each, including, without limitation, that a document is missing, a "Document
Defect"), or if, at any other time, the Trustee or any other party hereto
discovers a Document Defect in respect of any Mortgage Loan, the party
discovering such Document Defect shall promptly so notify each of the other
parties hereto. If and when such party is notified of or discovers any error in
the Mortgage Loan Schedule, the Mortgage Loan Seller shall promptly correct such
error and distribute a new, corrected Mortgage Loan Schedule to each of the
other parties hereto. Such new, corrected Mortgage Loan Schedule shall be deemed
to amend and replace the existing Mortgage Loan Schedule.
SECTION 2.03 Mortgage Loan Seller's Repurchase of Mortgage Loans for
Document Defects and Certain Breaches of Representations and
Warranties.
(a) Within ___ days of the earlier of discovery or receipt of notice by the
Mortgage Loan Seller, of a Document Defect in respect of any Mortgage Loan or a
breach of any representation or warranty set forth in Section 2.05(c) in respect
of any Mortgage Loan, which Document Defect or breach, as the case may be,
materially and adversely affects the value of such Mortgage Loan or the
interests of the Certificateholders therein, the Mortgage Loan Seller shall cure
such Document Defect or breach, as the case may be, in all material respects or
repurchase (or, cause an Affiliate to purchase) the affected Mortgage Loan at
the applicable Purchase Price by deposit of such Purchase Price into the
Certificate Account and delivery to the Trustee of a written certification that
such deposit has been made. Notwithstanding the immediately preceding sentence,
within ____ days of the earlier of discovery or receipt of notice by the
Mortgage Loan Seller that there is a breach of the representation and warranty
set forth in Section 2.05(c)(xxxi) (i.e., that any Mortgage Loan does not
constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code), the Mortgage Loan Seller shall repurchase such Mortgage Loan at the
applicable Purchase Price by deposit of such Purchase Price into the Certificate
Account and delivery to the Trustee of a written certification that such deposit
has been made.
(b) In connection with any repurchase of a Mortgage Loan contemplated by
this Section 2.03, the Trustee, the Master Servicer and the Special Servicer
shall each tender or cause to be tendered to the Mortgage Loan Seller, upon
delivery to each of the Trustee, the Master Servicer and the Special Servicer of
a receipt executed by the Mortgage Loan Seller, all portions of the Mortgage
File and other documents and funds pertaining to such Mortgage Loan possessed by
it (or any Custodian or Sub-Servicer on its behalf), and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to or at the
direction of the Mortgage Loan Seller, in the same manner. The form, sufficiency
and expense of all such instruments and certificates shall be the responsibility
of the Mortgage Loan Seller.
(c) This Section 2.03 provides the sole remedies available to the
Certificateholders, or to the Trustee on behalf of the Certificateholders,
respecting any Document Defect or any breach of any representation or warranty
set forth in Section 2.05(c) hereof. If the Mortgage Loan Seller defaults on its
obligations to repurchase any Mortgage Loan in accordance with Section 2.03(a)
hereof, or disputes its obligation to repurchase any Mortgage Loan in accordance
with any such provision, the Trustee shall promptly notify the
Certificateholders and, subject to Sections 8.01 and 8.02 and its right to
reimbursement pursuant to Section 8.05(b), shall take such action as may be
appropriate to enforce such payment or performance, including, without
limitation, the institution and prosecution of appropriate proceedings. If it is
judicially determined or subsequently agreed that the Mortgage Loan Seller is
required to repurchase such Mortgage Loan under Section 2.03(a) or 2.03(b)
hereof, the Mortgage Loan Seller shall reimburse the Trustee for all necessary
and reasonable costs and expenses incurred in connection with such enforcement,
and otherwise the Trustee's right of reimbursement shall be limited to amounts
on deposit in the Distribution Account from time to time in accordance with
Section 8.05(b) and to such other sources of security and indemnity as shall
have been offered to the Trustee by the Certificateholders.
SECTION 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other
parties to this Agreement and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's
certificate of incorporation or bylaws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets.
(iii) The Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Depositor, enforceable against the
Depositor in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Depositor to perform its obligations under
this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any
such approvals as have been obtained, and is not subject to any bulk
transfer or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor which would prohibit the
Depositor from entering into this Agreement or, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(b) Upon discovery by any of the parties hereto of a breach of any of the
foregoing representations and warranties which materially and adversely affects
the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
SECTION 2.05 Representations and Warranties of the Mortgage Loan Seller.
(a) The Mortgage Loan Seller hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Mortgage Loan Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
_______.
(ii) The execution and delivery of this Agreement by the Mortgage
Loan Seller, and the performance and compliance with the terms of this
Agreement by the Mortgage Loan Seller, will not violate the Mortgage
Loan Seller's certificate of incorporation and by-laws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets.
(iii) The Mortgage Loan Seller has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Mortgage Loan Seller, enforceable
against the Mortgage Loan Seller in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Mortgage Loan Seller is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Mortgage
Loan Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Mortgage Loan Seller
to perform its obligations under this Agreement or the financial
condition of the Mortgage Loan Seller.
(vi) No litigation is pending or, to the best of the Mortgage Loan
Seller's knowledge, threatened against the Mortgage Loan Seller which
would prohibit the Mortgage Loan Seller from entering into this
Agreement or, in the Mortgage Loan Seller's good faith and reasonable
judgment, is likely to materially and adversely affect either the
ability of the Mortgage Loan Seller to perform its obligations under
this Agreement or the financial condition of the Mortgage Loan Seller.
(b) The Mortgage Loan Seller hereby represents and warrants with respect to
(but solely with respect to) each Mortgage Loan, to the other parties hereto and
for the benefit of the Certificateholders, as of the date hereinbelow specified
or, if no such date is specified, as of the Closing Date, that:
(i) Immediately prior to the transfer thereof by the Mortgage
Loan Seller to the Trustee, the Mortgage Loan Seller had good and
marketable title to, and was the sole owner and holder of, such
Mortgage Loan, free and clear of any and all liens, encumbrances and
other interests on, in or to such Mortgage Loan (other than, in
certain cases, the right of a sub-servicer to primary service such
Mortgage Loan).
(ii) The Mortgage Loan Seller had full right and authority to
sell, assign and transfer such Mortgage Loan to or the Trustee.
(iii) The information pertaining to such Mortgage Loan set forth
in the Mortgage Loan Schedule was true and corrmct in all material
respects as of the Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Cut-off Date or at any
time during the twelve-month period prior thereto, 30 days or more
delinquent in respect of any Monthly Payment of principal and/or
interest required thereunder, without giving effect to any applicable
grace period.
(v) Each Mortgage securing such Mortgage Loan constitutes a valid
first lien upon the related Mortgaged Property, including, without
limitation, all buildings located thereon and all fixtures attached
thereto, subject only to (and such Mortgaged Property is free and
clear of all encumbrances and liens having priority over the lien of
such Mortgage, except for) (A) the lien of current real property taxes
and assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record, (C) the right of tenants (whether under ground leases, space
leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such
tenants are performing under such leases), (D) exceptions and
exclusions specifically referred to in the lender's title insurance
policy issued or, as evidenced by a "marked-up" commitment, to be
issued in respect of such Mortgage Loan and (E) if such Mortgage Loan
is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the exceptions set forth in the
foregoing clauses (A), (B), (C), (D), and (E), collectively,
"Permitted Encumbrances"). Such Permitted Encumbrances do not
materially interfere with the security intended to be provided by the
related Mortgage(s), the current use of the related Mortgaged
Property, or the current ability of such Mortgaged Property to
generate net operating income sufficient to service the Mortgage Loan.
(vi) The lien of each related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of the related Mortgage
Loan, its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the related Mortgage Loan
after all advances of principal, subject only to Permitted
Encumbrances (or, if a title insurance policy has not yet been issued
in respect of any Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance
"marked-up" at the closing of such loan).
(vii) The Mortgage Loan Seller has not waived any material
default, breach, violation or event of acceleration existing under the
related Mortgage or Mortgage Note.
(viii) There is no valid offset, defense or counterclaim to such
Mortgage Loan.
(ix) The Mortgage Loan Seller has not received actual notice (A)
that there is any proceeding pending or threatened for the total or
partial condemnation of the related Mortgaged Property or (B) that
there is any material damage at the related Mortgaged Property that
materially and adversely affects the value of such Mortgaged Property.
(x) At origination, such Mortgage Loan complied in all material
respects with all requirements of federal, state and local laws,
including, without limitation, laws pertaining to usury, relating to
the origination of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully
disbursed, and there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage(s) for such Mortgage Loan
and all other documents and instruments evidencing, guaranteeing,
insuring or otherwise securing such Mortgage Loan are each the legal,
valid and binding obligation of the maker thereof (subject to any
non-recourse provisions contained in any of the foregoing agreements
and any applicable state anti-deficiency legislation), enforceable in
accordance with their respective terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the rights of
creditors generally and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(xiii) The related Mortgaged Property is: (A) if a commercial
property, insured by a fire and extended perils insurance policy,
issued by an insurer meeting the requirements of such Mortgage Loan in
an amount not less than the greater of (1) the replacement cost and
(2) the amount necessary to avoid the operation of any co-insurance
provisions with respect to such Mortgaged Property, and is also
covered (except if such Mortgaged Property is operated as a mobile
home park), by rental insurance in an amount equal to the gross
rentals for at least a 12-month period (or, in the case of a Mortgaged
Property not having an elevator, for at least a 6-month period) and
broad form boiler and machinery insurance; no such insurance policy
provides that it may be cancelled, endorsed, altered or reissued to
effect a change in coverage unless such insurer shall have first given
the mortgagee under such Mortgage Loan thirty days prior written
notice, and no notice has been received as of the date hereof; all
premiums required to be paid on such policy have been paid; the
related Mortgage obligates the Mortgagor to maintain all such
insurance and, at the Mortgagor's failure to do so, authorizes the
mortgagee under such Mortgage Loan to purchase such insurance at the
Mortgagor's cost and expense and to seek reimbursement from such
Mortgagor; and (B) if a multifamily property, insured by a fire and
extended perils insurance policy, issued by an insurer meeting the
requirements of such Mortgage Loan and covering rent loss and such
other hazards, casualties, liabilities and contingencies the Master
Servicer shall require and in such amounts and for such periods as the
Master Servicer shall require; at least thirty days prior to the
expiration date of such policy, the related Mortgage requires the
Mortgagor to deliver to the mortgagee under such Mortgage Loan a
renewal policy in form satisfactory to the Master Servicer; all
premiums required to be paid on such policy have been paid; the
Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the
mortgagee to purchase such insurance at the Mortgagor's cost and
expense and to seek reimbursement from such Mortgagor. In addition, if
the related Mortgaged Property is located in a federally designated
special flood hazard area, the related Mortgagor is required to
maintain flood insurance in respect thereof (exclusive of any parking
lot or unused or undeveloped portion thereof).
(xiv) In connection with or subsequent to the origination of such
Mortgage Loan, one or more environmental site assessments (or an
update of a previously conducted assessment) were performed with
respect to the related Mortgaged Property, and the Mortgage Loan
Seller, having made no independent inquiry other than reviewing the
resulting report(s) and/or employing an environmental consultant to
perform the assessment(s) referenced herein, has no knowledge of any
material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in the related
report(s).
(xv) Except as indicated on the Mortgage Loan Schedule, such
Mortgage Loan is not cross-collateralized with other Mortgage Loans in
the Mortgage Pool. Such Mortgage Loan is not cross-collateralized with
a mortgage loan outside the Mortgage Pool.
(xvi) Except as indicated on Schedule III hereto or as contained
in the related Mortgage File, the terms of the Mortgage Note and
Mortgage(s) for such Mortgage Loan have not been impaired, waived,
altered or modified in any material respect.
(xvii) There are no delinquent taxes, ground rents, insurance
premiums, assessments, including, without limitation, assessments
payable in future installments, or other similar outstanding charges
(and, to the actual knowledge of the Mortgage Loan Seller, at
origination of such Mortgage Loan, there were no delinquent water
charges or sewer rents) affecting the related Mortgaged Property.
(xviii) The interest of the Mortgagor in the related Mortgaged
Property consists of a fee simple and/or leasehold interest in real
property.
(xix) Such Mortgage Loan is a whole loan and not a participation
interest.
(xx) The assignment of the related Mortgage to the Trustee
constitutes the legal, valid and binding assignment of such Mortgage
from the relevant assignor to the Trustee, and the assignment of the
related Assignment of Leases, if any, or of any other agreement
executed in connection with such Mortgage Loan to the Trustee
constitutes the legal, valid and binding assignment thereof from the
relevant assignor to the Trustee.
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan
that were required to be delivered to the mortgagee under the terms of
the related loan documents, have been received and, to the extent of
any remaining balances of such escrow deposits, are in the possession,
or under the control of the Mortgage Loan Seller or its agents (which
shall include the Master Servicer).
(xxii) As of the date of origination of such Mortgage Loan and as
of the Closing Date, the related Mortgaged Property was and is free
and clear of any mechanics' and materialmen's liens or liens in the
nature thereof which create a lien prior to that created by the
related Mortgage(s).
(xxiii) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at
the time of origination of such Mortgage Loan lies outside the
boundaries and building restriction lines of such property to any
material extent, and no improvements on adjoining properties
materially encroach upon such Mortgaged Property to any material
extent, and no improvement located on or forming part of such
Mortgaged Property is in material violation of any applicable zoning
laws or ordinances (except to the extent that they may constitute
legal non-conforming uses).
(xxiv) To the extent required under applicable law as of the
Closing Date and necessary for the enforceability or collectability of
the Mortgage Loan, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it held the Mortgage Loan.
(xxv) There is no material default, breach or event of
acceleration existing under the related Mortgage or Mortgage Note, and
the Mortgage Loan Seller has not received actual notice of any event
(other than payments due but not yet delinquent) that, with the
passage of time or with notice and the expiration of any grace or cure
period, would constitute such a material default, breach or event of
acceleration; provided, however, that this representation and warranty
does not cover any default, breach or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Mortgage Loan Seller in any of
paragraphs (iv), (xiv), (xvii), (xxi), (xxiii) and (xxix) of this
Section 2.05(c).
(xxvi) If such Mortgage Loan is secured in whole or in part by
the interest of a Mortgagor under a Ground Lease and by the related
fee interest, such fee interest is subordinate to the related Mortgage
and the related Mortgage does not by its terms provide that it will be
subordinated to the lien of any mortgage or any other lien upon such
fee interest.
(xxvii) Such Mortgage Loan does not contain any equity
participation by the lender, provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or provide for the negative amortization of
interest, except that, as identified on the Mortgage Loan Schedule,
such Mortgage Loan may provide that during the period commencing on a
specified date and continuing until such Mortgage Loan is paid in
full, additional interest will accrue (and may be compounded) on such
Mortgage Loan and shall be payable only after the outstanding
principal of the Mortgage Loan is paid in full.
(xxviii) No holder of such Mortgage Loan has, to the Mortgage
Loan Seller's knowledge, advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property, directly or indirectly, for
the payment of any amount required by the Mortgage Loan.
(xxix) To the Mortgage Loan Seller's knowledge, based on due
diligence customarily performed in the origination of comparable
mortgage loans, as of the date of origination of such Mortgage Loan,
(A) the related Mortgagor was in possession of all material licenses,
permits and authorizations required by applicable laws for the
ownership and operation of the related Mortgaged Property as it was
then operated and (B) all such licenses, permits and authorizations
were valid and in full force and effect.
(xxx) The related Mortgage(s) or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in clauses (c)(v) and (c)(xii)
above) such as to render the rights and remedies of the holders
thereof adequate for the practical realization against the related
Mortgaged Property of the principal benefits of the security intended
to be provided thereby.
(xxxi) Such Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
(xxxii) If such Mortgage Loan is secured by a mortgage lien on
the applicable Mortgagor's leasehold interest in the related Mortgaged
Property, but not a mortgage lien on the related fee interest, then
either (A) the related ground lessor has subordinated its interest in
the related Mortgaged Property to the interest of the holder of the
Mortgage Loan or (B) the related ground lessor has granted the holder
of the Mortgage Loan the right to cure any default or breach by the
lessee. Upon the foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the related Ground Lease is assignable to the
mortgagee under the leasehold estate and its assigns without the
consent of the ground lessor thereunder.
(xxxiii) No fraud with respect to such Mortgage Loan has taken
place on the part of the Mortgage Loan Seller in connection with the
origination of such Mortgage Loan.
(xxxiv) The terms of such Mortgage Loan provide or, at lender's
option, permit, and the terms of this Agreement and any Sub-Servicing
Agreement to which such Mortgage Loan is subject provide for purposes
of calculating distributions on the Certificates and additional
compensation payable to the Master Servicer, the Special Servicer and
any related Sub-Servicer, that payments on and proceeds of such
Mortgage Loan will be applied to principal and interest at the related
Mortgage Rate (excluding, in the case of a Hyper-Amortization Loan
after its Anticipated Repayment Date, Additional Interest) due and
owing at the time such payments or proceeds are received, prior to
being applied to any Default Charges, assumption fees and modification
fees then due and owing.
(xxxv) If such Mortgage Loan is, as of the Closing Date, subject
to a Sub-Servicing Agreement, such Sub-Servicing Agreement provides
that the related Sub-Servicer is not to receive any sub-servicing
compensation with respect to such Mortgage Loan during any period that
such Mortgage Loan is a Specially Serviced Mortgage Loan or an REO
Loan (except for any Termination Strip payable to a Sub-Servicer in
connection with a termination thereof without cause as contemplated by
Section 3.22(d) hereof).
(xxxvi) The servicing and collection practices used with respect
to such Mortgage Loan have been in all material respects legal and
prudent and have met customary standards utilized by prudent
institutional multifamily and commercial mortgage loan servicers.
(xxxvii) Unless the related Mortgaged Property is owner occupied,
the Mortgage File for such Mortgage Loan contains an Assignment of
Leases either as a separate instrument or incorporated into the
related Mortgage, which creates, in favor of the holder, a valid,
perfected and enforceable lien of the same priority as the related
Mortgage, in the property and rights described therein; provided that
the enforceability of such lien is subject to applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws affecting the
enforcement of creditors' rights generally, and by the application of
the rules of equity. The Mortgage Loan Seller has the full right to
assign to the Trustee such Assignment of Leases and the lien created
thereby as described in the immediately preceding sentence. No Person
other than the Mortgagor owns any interest in any payments due under
the related leases.
(xxxviii) If the related Mortgaged Property securing such
Mortgage Loan is encumbered by secured subordinated debt, then either
(A) the subordinate debt constitutes a "cash flow" mortgage loan (that
is, payments are required to be made thereon only to the extent that
certain net cash flow from the related Mortgaged Property (calculated
in accordance with the related loan documents) is sufficient after
payments on such Mortgage Loan have been made and certain expenses
have been paid) or (B) the holder of the subordinate debt has agreed
not to foreclose on the related Mortgaged Property so long as such
Mortgage Loan is outstanding and the Special Servicer on behalf of the
Trust is not pursuing a foreclosure action.
(xxxix) If such Mortgage Loan is secured by a mortgage lien on
the applicable Mortgagor's leasehold interest under a Ground Lease,
such Ground Lease has an original term (or an original term plus one
or more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the mortgagee if it takes
possession of such leasehold interest) that extends not less than 10
years beyond the stated maturity of the related Mortgage Loan.
(xl) In the event fraud was committed by the Mortgagor in
connection with the origination thereof, such Mortgage Loan becomes a
recourse obligation of the Mortgagor.
(xli) If such Mortgage Loan is a Hyper-Amortization Loan, it
commenced amortizing on its initial scheduled Due Date and provides
that: (i) its Mortgage Rate will increase by no more than two
percentage points in connection with the passage of its Anticipated
Repayment Date; (ii) its Anticipated Repayment Date is not less than
seven years following the origination of such Mortgage Loan; (iii) any
cash flow from the related Mortgaged Property that is applied to
amortize such Mortgage Loan following its Anticipated Repayment Date
shall, to the extent such net cash flow is in excess of the Monthly
Payment payable therefrom, be net of budgeted and discretionary
(servicer approved) capital expenditures; and (iv) if the property
manager for the related Mortgaged Property can be removed by or at the
direction of the lender on the basis of a debt service coverage test,
the subject debt service coverage ratio shall be calculated without
taking account of any increase in the related Mortgage Rate on such
Mortgage Loan's Anticipated Repayment Date. No Hyper-Amortization Loan
provides that the property manager for the related Mortgaged Property
can be removed by or at the direction of the lender solely because of
the passage of the related Anticipated Repayment Date.
(xlii) At origination of such Mortgage Loan, the related
Mortgagor was not, to the best of the Mortgage Loan Seller's actual
knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
(xliii) If such Mortgage Loan is secured by the interest of the
related Mortgagor under a Ground Lease, then, as of the origination of
such Mortgage Loan, such Ground Lease was in full force and effect
and, to the Mortgage Loan Seller's actual knowledge, no material
default existed under such Ground Lease.
(xliv) The Mortgage Loan Seller has no actual knowledge of any
pending litigation or other legal proceedings involving the related
Mortgagor or the related Mortgaged Property that can reasonably be
expected to materially interfere with the security intended to be
provided by the related Mortgage, the current use of the related
Mortgaged Property, or the current ability of the Mortgaged Property
to generate net operating income sufficient to service the Mortgage
Loan.
(xlv) If such Mortgage Loan had a Cut-off Date Balance greater
than 1% of the Initial Pool Balance, the related Mortgagor has
covenanted in its organizational documents and/or the Mortgage Loan
documents to own no significant asset other than the related Mortgaged
Property, Mortgaged Properties securing other Mortgage Loans and
assets incidental to its ownership and operation of such Mortgaged
Property or Properties.
(xlvi) Except as identified on Schedule IV hereto, neither the
related Mortgage Note nor the related Mortgage requires the mortgagee
to release all or any material portion of the related Mortgaged
Property from the lien of the related Mortgage except upon payment in
full of all amounts due under the related Mortgage Loan.
(xlvii) Except as identified on Schedule V hereto, such Mortgage
Loan does not permit the related Mortgaged Property to be encumbered
subsequent to the Closing Date by any lien junior to or of equal
priority with the lien of the related Mortgage without the prior
written consent of the holder thereof.
(c) It is understood and agreed that the representations and warranties set
forth in this Section 2.05 shall survive delivery of the respective Mortgage
Files to the Trustee or a Custodian on its behalf and shall inure to the benefit
of the Persons for whose benefit they were made for so long as the Trust remains
in existence, notwithstanding any restrictive or qualified endorsement or
assignment. Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth in subsection (a) above which
materially and adversely affects the interests of the Certificateholders or any
party hereto or a breach of any of the representations and warranties set forth
in subsection (b) above which materially and adversely affects the value of any
Mortgage Loan or the interests therein of the Certificateholders, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
SECTION 2.06 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the other parties
hereto and for the benefit of the Certificateholders, as of the Closing Date,
that:
(i) The Master Servicer is duly organized, validly existing and in
good standing as a ________________ under the laws of the State of
_____________, and the Master Servicer is in compliance with the laws
of each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master
Servicer's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default, in the Master Servicer's good faith
and reasonable judgment, is likely to materially and adversely affect
either the ability of the Master Servicer to perform its obligations
under this Agreement or the financial condition of the Master Servicer.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Master Servicer's good
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the
Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit the Master Servicer from entering into this Agreement
or, in the Master Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Master Servicer to perform its obligations under this Agreement or the
financial condition of the Master Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c). None of the
Master Servicer, its general partner or any of their respective
officers or employees that is involved in the servicing or
administration of by the Mortgage Loans has been refused such coverage
or insurance.
(b) The representations and warranties of the Master Servicer set forth in
Section 2.06(a) shall survive the execution and delivery of this Agreement and
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence. Upon discovery by any of the parties hereto
of a breach of any of such representations and warranties which materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to have made,
as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization, and without regard
to the references to general partner if such successor is not a partnership.
SECTION 2.07 Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Special Servicer is duly organized, validly existing and
in good standing as a ____________ under the laws of the State of
______________, and the Special Servicer is in compliance with the laws
of each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special
Servicer's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default, in the Special Servicer's good faith
and reasonable judgment, is likely to materially and adversely effect
either the ability of the Special Servicer to perform its obligations
under this Agreement or the financial condition of the Special
Servicer.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Special Servicer's good
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the
Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Special Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c). None of the
Special Servicer, its general partner or any of their respective
officers or employees that is involved in the servicing or
administration of the Mortgage Loans has been refused such coverage or
insurance.
(b) The representations and warranties of the Special Servicer set forth in
Section 2.07(a) shall survive the execution and delivery of this Agreement and
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence. Upon discovery by any of the parties hereto
of a breach of any of such representations and warranties which materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have made,
as of the date of its succession, each of the representations set forth in
Section 2.07(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.07(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization, and without regard
to the references to general partner if such successor is not a partnership.
SECTION 2.08 Representations and Warranties of the Trustee and the REMIC
Administrator.
(a) _______________________________________, [both] in its capacity as
Trustee [and in its capacity as REMIC Administrator] (the "Bank"), hereby
represents and warrants to the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Bank is a national bank duly organized, validly existing
and in good standing under the laws of the [United States] and is,
shall be or, if necessary, shall appoint a co-trustee that is, in
compliance with the laws of each State in which any Mortgaged Property
is located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank, and
the performance and compliance with the terms of this Agreement by the
Bank, do not violate the Bank's organizational documents or constitute
a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets, which default, in the Bank's
good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Bank to perform its
obligations under this Agreement or the financial condition of the
Bank.
(iii) The Bank has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Bank, enforceable against the Bank
in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Bank's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Bank to perform its obligations under this Agreement or
the financial condition of the Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank which would prohibit the Bank
from entering into this Agreement or, in the Bank's good faith and
reasonable judgment, is likely to materially and adversely affect
either the ability of the Bank to perform its obligations under this
Agreement or the financial condition of the Bank.
(b) The representations and warranties of the Bank set forth in Section
2.08(a) shall survive the execution and delivery of this Agreement and shall
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence. Upon discovery by any of the parties hereto
of a breach of any of such representations and warranties which materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and regardless of
whether the Trustee and the REMIC Administrator are different Persons) shall be
deemed to have made, as of the date of its succession, each of the
representations set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
SECTION 2.09 Issuance of the Class R-I Certificates; Creation of the REMIC
I Regular Interests.
Concurrently with the assignment to the Trustee of the assets included in
REMIC I, and in exchange therefor, at the direction of the Depositor, the REMIC
I Regular Interests have been issued hereunder and the Trustee has executed,
authenticated and delivered to or upon the order of the Depositor, the Class R-I
Certificates in authorized denominations. The interests evidenced by the Class
R-I Certificates, together with the REMIC I Regular Interests, constitute the
entire beneficial ownership of REMIC I. The rights of the Class R-I
Certificateholders and REMIC II to receive distributions from the proceeds of
REMIC I in respect of the Class R-I Certificates and the REMIC I Regular
Interests, respectively, and all ownership interests of the Class R-I
Certificateholders and REMIC II in and to such distributions, shall be as set
forth in this Agreement.
SECTION 2.10 Conveyance of REMIC I Regular Interests; Acceptance of REMIC
II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery hereof, does hereby assign without recourse all the right, title
and interest of the Depositor in and to the REMIC I Regular Interests to the
Trustee for the benefit of the Holders of the REMIC II Certificates. The Trustee
acknowledges the assignment to it of the REMIC I Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future Holders of the REMIC II Certificates.
SECTION 2.11 Issuance of the REMIC II Certificates.
Concurrently with the assignment to the Trustee of the REMIC I Regular
Interests, and in exchange therefor, at the direction of the Depositor, the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, the REMIC II Certificates in authorized denominations evidencing the
entire beneficial ownership of REMIC II. The rights of the respective Classes of
Holders of the REMIC II Certificates to receive distributions from the proceeds
of REMIC II in respect of their REMIC II Certificates, and all ownership
interests of the respective Classes of Holders of the REMIC II Certificates in
and to such distributions, shall be as set forth in this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service and
administer the Mortgage Loans that it is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee, and in the best interests
and for the benefit of the Certificateholders, in accordance with any and all
applicable laws and the terms of this Agreement, the Insurance Policies and the
respective Mortgage Loans and, to the extent consistent with the foregoing, in
accordance with the Servicing Standard. Without limiting the foregoing, and
subject to Section 3.21, (i) the Master Servicer shall service and administer
all Mortgage Loans as to which no Servicing Transfer Event has occurred and all
Corrected Mortgage Loans, and (ii) the Special Servicer shall service and
administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to
which a Servicing Transfer Event has occurred, and (y) each REO Property;
provided, however, that the Master Servicer shall continue to collect
information and prepare all reports to the Trustee required hereunder with
respect to any Specially Serviced Mortgage Loans and REO Properties (and the
related REO Loans), and further to render such incidental services with respect
to any Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein.
(b) Subject to Section 3.01(a), the Master Servicer and the Special
Servicer each shall have full power and authority, acting alone, to do or cause
to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, with respect to each of the Mortgage Loans it is
obligated to service hereunder, is hereby authorized and empowered by the
Trustee to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments. Subject to Section 3.10, the
Trustee shall, at the written request of a Servicing Officer of the Master
Servicer or the Special Servicer, furnish, or cause to be so furnished, to the
Master Servicer and the Special Servicer, as the case may be, any limited powers
of attorney and other documents necessary or appropriate to enable them to carry
out their servicing and administrative duties hereunder; provided, however, that
the Trustee shall not be held liable for any misuse of any such power of
attorney by the Master Servicer or the Special Servicer.
(c) The relationship of each of the Master Servicer and Special Servicer to
the Trustee under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
(d) In the event that any two or more Mortgage Loans are
cross-collateralized with each other, the Master Servicer or Special Servicer,
as applicable, in accordance with the terms of this Agreement, shall service and
administer such Mortgage Loans as a single Mortgage Loan as and when it deems
necessary and appropriate, consistent with the Servicing Standard. If any
Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan,
then each other Mortgage Loan that is cross-collateralized with it shall also
become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized
Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and
until all Servicing Transfer Events in respect of each other Mortgage Loan that
is cross-collateralized with it, are remediated or otherwise addressed as
contemplated in the definition of "Specially Serviced Mortgage Loan".
SECTION 3.02 Collection of Mortgage Loan Payments.
Each of the Master Servicer and the Special Servicer shall make reasonable
efforts to collect all payments called for under the terms and provisions of the
Mortgage Loans it is obligated to service hereunder, and shall, to the extent
such procedures shall be consistent with this Agreement (including without
limitation, the Servicing Standard), follow such collection procedures as it
would follow were it the owner of such Mortgage Loans; provided, however, that
nothing herein contained shall be construed as an express or implied guarantee
by the Master Servicer or the Special Servicer of the collectability of the
Mortgage Loans; and, provided, further, that neither the Master Servicer nor the
Special Servicer shall, with respect to any Hyper-Amortization Loan after its
Anticipated Repayment Date, take any enforcement action with respect to the
payment of Additional Interest (other than the making of requests for its
collection), unless (i) the taking of an enforcement action with respect to the
payment of other amounts due under such Mortgage Loan is, in the good faith and
reasonable judgment of the Special Servicer, and without regard to such
Additional Interest, also necessary, appropriate and consistent with the
Servicing Standard or (ii) all other amounts due under such Mortgage Loan have
been paid, the payment of such Additional Interest has not been forgiven in
accordance with Section 3.20 and, in the good faith and reasonable judgment of
the Special Servicer, the Liquidation Proceeds expected to be recovered in
connection with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated Advance Interest.
Consistent with the foregoing, the Master Servicer or the Special Servicer each
may waive any Default Charges in connection with any specific delinquent payment
on a Mortgage Loan it is obligated to service hereunder.
_________ (_____) days prior to the maturity date of each Balloon Mortgage
Loan, the Master Servicer shall send a notice to the related Mortgagor of such
maturity date (with a copy to be sent to the Special Servicer) and shall request
confirmation that the Balloon Payment will be paid by such date.
SECTION 3.03 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all the Mortgage Loans, establish and
maintain one or more accounts (the "Servicing Accounts"), into which all Escrow
Payments shall be deposited and retained. Subject to any terms of the related
Mortgage Loan documents that specify the nature of the account in which Escrow
Payments shall be held, each Servicing Account shall be an Eligible Account.
Withdrawals of amounts so collected in respect of any Mortgage Loan (and
interest earned thereon) from a Servicing Account may be made only: (i) to
effect payment of real estate taxes, assessments, insurance premiums, [ground
(if applicable)] and comparable items in respect of the related Mortgaged
Property; (ii) to reimburse the Master Servicer, the Special Servicer or the
Trustee, as applicable, for any unreimbursed Servicing Advances made thereby to
cover any of the items described in the immediately preceding clause (i); (iii)
to refund to the related Mortgagor any sums as may be determined to be overages;
(iv) to pay interest, if required and as described below, to the related
Mortgagor on balances in the Servicing Account (or, if and to the extent not
payable to the related Mortgagor, to pay such interest to the Master Servicer);
or (v) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. The Master Servicer shall pay or
cause to be paid to the Mortgagors interest, if any, earned on the investment of
funds in Servicing Accounts maintained thereby, if required by law or the terms
of the related Mortgage Loan. If the Master Servicer shall deposit in a
Servicing Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such Servicing Account, any provision herein to
the contrary notwithstanding. The Special Servicer shall promptly deliver all
Escrow Payments received by it to the Master Servicer for deposit in the
applicable Servicing Account.
(b) The Master Servicer shall (with the cooperation of the Special Servicer
in the case of Specially Serviced Mortgage Loans), (i) maintain accurate records
with respect to each Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien thereon
and the status of insurance premiums [and any ground rents] payable in respect
thereof and (ii) use reasonable efforts to obtain, from time to time, all bills
for the payment of such items (including renewal premiums) and shall effect
payment thereof prior to the applicable penalty or termination date. For
purposes of effecting any such payment, the Master Servicer shall apply Escrow
Payments as allowed under the terms of the related Mortgage Loan or, if such
Mortgage Loan does not require the related Mortgagor to escrow for the payment
of real estate taxes, assessments, insurance premiums, [ground rents (if
applicable)] and similar items, each of the Master Servicer and the Special
Servicer shall, as to those Mortgage Loans it is obligated to service hereunder
and subject to the Servicing Standard, enforce the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard, the Master Servicer shall,
as to all the Mortgage Loans (but at the direction of the Special Servicer in
the case of Specially Serviced Mortgage Loans), advance with respect to the
related Mortgaged Property all such funds as are necessary for the purpose of
effecting the payment of (i) real estate taxes, assessments and other similar
items, (ii) ground rents or other rents (if applicable), and (iii) premiums on
Insurance Policies, in each instance if and to the extent Escrow Payments (if
any) collected from the related Mortgagor are insufficient to pay such item when
due and the related Mortgagor has failed to pay such item on a timely basis, and
provided that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance. All such advances shall be reimbursable in the
first instance from related collections from the Mortgagors and further as
provided in Section 3.05(a). No costs incurred by the Master Servicer or the
Special Servicer in effecting the payment of real estate taxes, assessments and
similar items and, [if applicable, ground rents] on or in respect of such
Mortgaged Properties shall, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balances of the related Mortgage Loans, notwithstanding that the terms
of such Mortgage Loans so permit.
(d) The Master Servicer shall, as to all the Mortgage Loans, establish and
maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made to pay for or otherwise cover, or (if
appropriate) to reimburse the related Mortgagor in connection with, the specific
items for which such Reserve Funds were escrowed, all in accordance with the
Servicing Standard and the terms of the related Mortgage Note, Mortgage and any
agreement with the related Mortgagor governing such Reserve Funds. Subject to
the terms of the related Mortgage Note and Mortgage, all Reserve Accounts shall
be Eligible Accounts. The Special Servicer shall promptly deliver all Reserve
Funds received by it to the Master Servicer for deposit in the applicable
Reserve Account.
SECTION 3.04 Certificate Account and Distribution Account.
(a) The Master Servicer shall establish and maintain one or more accounts
(collectively, the "Certificate Account"), held on behalf of the Trustee in
trust for the benefit of the Certificateholders. The Certificate Account shall
be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the Certificate Account, within two Business Days of receipt (in
the case of payments by Mortgagors or other collections on or in respect of the
Mortgage Loans) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal, interest and any other amounts due and
payable on the Mortgage Loans on or before the Cut-off Date, which payments
shall be delivered promptly to the Mortgage Loan Seller or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest at the respective Mortgage
Rates on the Mortgage Loans and all Prepayment Premiums received in
respect of the Mortgage Loans;
(iii) to the extent allocable to the period that any Mortgage Loan is
a Specially Serviced Mortgage Loan, all payments on account of Default
Charges on such Mortgage Loan;
(iv) all Insurance Proceeds and Liquidation Proceeds (net of all
related Liquidation Expenses paid therefrom) received in respect of
any Mortgage Loan (other than Liquidation Proceeds that are received
in connection with a purchase by the Master Servicer or a Majority
Certificateholder of the Controlling Class of all of the Mortgage
Loans and any REO Properties in the Trust Fund and that are required
to be deposited in the Distribution Account pursuant to Section 9.01);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Certificate
Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with
losses resulting from a deductible clause in a blanket or master
single interest policy;
(vii) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c); and
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have
been made.
The foregoing requirements for deposit in the Certificate Account shall be
exclusive. Without limiting the generality of the foregoing, (A) actual payments
from Mortgagors in the nature of Escrow Payments, and amounts that the Master
Servicer and the Special Servicer are entitled to retain as additional servicing
compensation pursuant to Section 3.11(b) and Section 3.11(d), respectively, need
not be deposited by the Master Servicer in the Certificate Account and (B) with
respect to any amount representing a sub-servicing fee (including, without
limitation, a Primary Servicing Fee, if applicable) that otherwise would be
required to be deposited by the Master Servicer in the Certificate Account and
that, once so deposited, would have been permitted to be withdrawn immediately
from the Certificate Account pursuant to Section 3.05 as part of the payment of
the Master Servicing Fee, such amount shall be deemed to have been deposited to
and withdrawn from the Certificate Account for such purpose to the extent that
such sum has been retained by the Sub-Servicer pursuant to the related
Sub-Servicing Agreement. If the Master Servicer shall deposit in the Certificate
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Certificate Account, any provision herein to the
contrary notwithstanding. The Master Servicer shall promptly deliver to the
Special Servicer, as additional special servicing compensation in accordance
with Section 3.11(d), assumption fees, modification fees, Net Default Charges,
charges for beneficiary statements or demands, charges for checks returned for
insufficient funds and similar fees (excluding Prepayment Premiums) received by
the Master Servicer with respect to Specially Serviced Mortgage Loans. The
Certificate Account shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage pass-through certificates of other
series serviced and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through (iv)
above with respect to any Mortgage Loan, the Special Servicer shall promptly,
but in no event later than two Business Days after receipt, remit such amounts
to the Master Servicer for deposit into the Certificate Account in accordance
with the second preceding paragraph, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement or other appropriate reason. Any
such amounts received by the Special Servicer with respect to an REO Property
shall be deposited by the Special Servicer into the REO Account and remitted to
the Master Servicer for deposit into the Certificate Account pursuant to Section
3.16(c). With respect to any such amounts paid by check to the order of the
Special Servicer, the Special Servicer shall endorse such check to the order of
the Master Servicer and shall deliver promptly, but in no event later than two
Business Days after receipt, any such check to the Master Servicer by overnight
courier, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason.
(b) The Trustee shall establish and maintain one or more trust accounts
(collectively, the "Distribution Account") to be held in trust for the benefit
of the Certificateholders. The Distribution Account shall be an Eligible
Account. On each Master Servicer Remittance Date, the Master Servicer shall
deliver to the Trustee, for deposit in the Distribution Account, an aggregate
amount of immediately available funds equal to the Master Servicer Remittance
Amount for such Master Servicer Remittance Date. If, at 1:00 p.m., New York City
time, on any Master Servicer Remittance Date, the Trustee has not received the
Master Servicer Remittance Amount, the Trustee shall provide notice to the
Master Servicer in the same manner as required by Section 4.03(a) hereof with
respect to P&I Advances.
In addition, the Master Servicer shall, as and when required hereunder,
deliver to the Trustee for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(e) in connection with Prepayment Interest
Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or a
Majority Certificateholder of the Controlling Class in connection with
the purchase of all of the Mortgage Loans and any REO Properties
pursuant to Section 9.01, exclusive of the portion of such Liquidation
Proceeds required to be deposited in the Certificate Account pursuant
to Section 9.01.
The Trustee shall, upon receipt, deposit in the Distribution Account any
and all amounts received or advanced by the Trustee that are required by the
terms of this Agreement to be deposited therein.
(c) Funds in the Certificate Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall give notice to the other parties hereto of the location of the
Certificate Account as of the Closing Date and of the new location of the
Certificate Account prior to any change thereof. The Trustee shall give notice
to the other parties hereto of the location of the Distribution Account as of
the Closing Date and of the new location of the Distribution Account prior to
any change thereof.
SECTION 3.05 Permitted Withdrawals From the Certificate Account and the
Distribution Account.
(a) The Master Servicer may, from time to time, make withdrawals from the
Certificate Account for any of the following purposes (the order set forth below
not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution
Account the Master Servicer Remittance Amount for and, to the extent
permitted or required by Section 4.03(a), any P&I Advances to be made
on each Master Servicer Remittance Date;
(ii) to reimburse the Trustee or the Master Servicer, as
applicable, in that order, for ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances made thereby
in respect of any Mortgage Loan or REO Loan, the Trustee's and the
Master Servicer's respective rights to reimbursement pursuant to this
clause (ii) with respect to any P&I Advance being payable from, and
limited to, amounts that represent Late Collections of interest and
principal (net of related Master Servicing Fees, Workout Fees and/or
Liquidation Fees payable therefrom) received in respect of the
particular Mortgage Loan or REO Loan as to which such P&I Advance was
made;
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan, the
Master Servicer's right to payment pursuant to this clause (iii) with
respect to any Mortgage Loan or REO Loan being payable from, and
limited to, amounts received on or in respect of such Mortgage Loan
(whether in the form of payments, Liquidation Proceeds or Insurance
Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections
on the Mortgage Loans and any REO Properties, earned and unpaid
Special Servicing Fees in respect of each Specially Serviced Mortgage
Loan and REO Loan;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by Section 3.11(c);
(vi) to reimburse the Trustee, the Special Servicer or the Master
Servicer, as applicable, in that order, for any unreimbursed Servicing
Advances made thereby with respect to any Mortgage Loan or REO
Property, the Trustee's, the Special Servicer's and the Master
Servicer's respective rights to reimbursement pursuant to this clause
(vi) with respect to any Servicing Advance being payable from, and
limited to, (A) payments made by the related Mortgagor that are
allocable to cover the item in respect of which such Servicing Advance
was made, and (B) Liquidation Proceeds (net of Liquidation Fees
payable therefrom), Insurance Proceeds and, if applicable, REO
Revenues received in respect of the particular Mortgage Loan or REO
Property as to which such Servicing Advance was made;
(vii) to reimburse the Trustee, the Special Servicer or the
Master Servicer, as applicable, in that order, out of general
collections on the Mortgage Loans and any REO Properties, for any
unreimbursed Advances made thereby with respect to any Mortgage Loan,
REO Loan or REO Property that have been determined to be
Nonrecoverable Advances;
(viii) to pay the Trustee, the Special Servicer or the Master
Servicer, as applicable, in that order, any Advance Interest due and
owing thereto, the Trustee's, the Special Servicer's and the Master
Servicer's respective rights to payment pursuant to this clause (viii)
being payable from, and limited to, Default Charges collected in
respect of the Mortgage Loan or REO Loan as to which the related
Advances were made (but only to the extent allocable to the period
when such Mortgage Loan was a Specially Serviced Mortgage Loan or an
REO Loan);
(ix) at or following such time as the Master Servicer reimburses
itself, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above or
Section 3.03, and insofar as payment has not already been made
pursuant to clause (viii) above, to pay the Trustee, the Special
Servicer or the Master Servicer, as the case may be, and in that
order, out of general collections on the Mortgage Loans and any REO
Properties, any related Advance Interest accrued and payable on such
Advance;
(x) to pay the Master Servicer, as additional servicing
compensation in accordance with Sections 3.06(b) and 3.11(b), any Net
Investment Earnings in respect of amounts held in the Certificate
Account for any Collection Period;
(xi) to pay the Master Servicer, as additional servicing
compensation in accordance with Section 3.11(b), any Prepayment
Interest Excesses and, to the extent not allocable to the period that
any Mortgage Loan is a Specially Serviced Mortgage Loan or REO Loan,
any Default Charges collected on the Mortgage Loans, and to pay the
Special Servicer, as additional servicing compensation in accordance
with Section 3.11(d), any Net Default Charges collected on any
Mortgage Loan to the extent allocable to the period that such Mortgage
Loan is a Specially Serviced Mortgage Loan or REO Loan;
(xii) to reimburse, out of general collections on the Mortgage
Loans and any REO Properties, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Depositor, or any of their
respective directors, officers, employees and agents any amounts
reimbursable to any such Person pursuant to Section 6.03, or to pay
directly to any third party any amount which if paid by any such
Person would be reimbursable thereto pursuant to Section 6.03;
(xiii) to pay, out of general collections on the Mortgage Loans
and any REO Properties, for (A) the reasonable costs of the advice of
counsel contemplated by Section 3.17(a), (B) the reasonable costs of
the Opinions of Counsel contemplated by Sections 3.09(b)(ii) and
3.16(a), (C) the reasonable costs of Appraisals obtained pursuant to
Section 3.11(g) or 4.03(c), (D) the reasonable costs of obtaining any
REO Extension sought by the Special Servicer as contemplated by
Section 3.16(a), and (E) the cost of recording this Agreement in
accordance with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the Majority
Certificateholder of the Controlling Class, the Mortgage Loan Seller
or any other Person, as the case may be, with respect to each Mortgage
Loan, if any, previously purchased by such Person pursuant to this
Agreement, all amounts received thereon subsequent to the date of
purchase;
(xv) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section 8.05(b)
and Section 8.13(a);
(xvi) to pay any costs and expenses contemplated in Section
3.11(h), the last sentence of Section 7.02 and the last sentence of
Section 8.08(a); and
(xvii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any particular time
(after withdrawing any portion of such amounts deposited in the Certificate
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xvi)
above, then the corresponding withdrawals from the Certificate Account shall be
made in the following priority and subject to the following rules: (A) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
provided that where, as in clauses (ii), (vi) and (vii), an order of priority is
set forth to govern the application of funds withdrawn from the Certificate
Account pursuant to such clauses, payments, reimbursements or remittances
pursuant to any such clause shall be made in such order of priority to the
extent of available funds; and (B) if the payment, reimbursement or remittance
can be made from any funds on deposit in the Certificate Account, then
(following any withdrawals made from the Certificate Account in accordance with
the immediately preceding clause (A) above) such payment, reimbursement or
remittance shall be made from such general funds remaining on a pro rata basis
with any and all other payments, reimbursements or remittances to be made from
such general funds; provided that where, as in clauses (viii) and (ix), an order
of priority is set forth to govern the application of funds withdrawn from the
Certificate Account pursuant to such clauses, payments, reimbursements or
remittances pursuant to any such clause shall be made in such order of priority
to the extent of available funds.
The Master Servicer shall keep and maintain separate accounting records, on
a loan-by-loan and property-by-property basis when appropriate, in connection
with any withdrawal from the Certificate Account pursuant to clauses (ii)
through (xiv) above.
The Master Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account.
(b) The Trustee may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01;
(ii) to pay the Trustee accrued and unpaid Trustee Fees pursuant
to Section 8.05(a);
(iii) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section
8.05(b);
(iv) as contemplated by Section 11.01(g), to pay for the
reasonable costs of the Opinions of Counsel sought by the Trustee as
contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Trustee which amendment
is in furtherance of the rights and interests of Certificateholders;
(v) to pay for the reasonable costs of the Opinions of Counsel
sought by the Trustee as contemplated by Section 11.02(a);
(vi) to (A) pay any and all federal, state and local taxes
imposed on REMIC I or REMIC II or on the assets or transactions of
either such REMIC, together with all incidental costs and expenses,
and any and all reasonable expenses relating to tax audits, if and to
the extent that either (1) none of the Trustee, the Master Servicer,
the Special Servicer or the REMIC Administrator is liable therefor
pursuant to Section 10.01(d) and/or Section 10.01(h) or (2) any such
Person that may be so liable has failed to timely make the required
payment, and (B) reimburse the REMIC Administrator for reasonable
expenses incurred by and reimbursable to it by the Trust pursuant to
Section 10.01(d) and/or Section 10.01(g); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Smction 9.01.
SECTION 3.06 Investment of Funds in the Certificate Account and the REO
Account.
(a) The Master Servicer may direct any depository institution maintaining
the Certificate Account, and the Special Servicer may direct any depository
institution maintaining the REO Account, to invest, or if it is such depository
institution, may itself invest, the funds held therein (each such account, for
purposes of this Section 3.06, an "Investment Account") in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn from such
account pursuant to this Agreement. All such Permitted Investments shall be held
to maturity, unless payable on demand, in which case such investments may be
sold at any time. Any investment of funds in an Investment Account shall be made
in the name of the Trustee for the benefit of the Certificateholders (in its
capacity as such). The Master Servicer (with respect to Permitted Investments of
amounts in the Certificate Account) and the Special Servicer (with respect to
Permitted Investments of amounts in the REO Account), on behalf of the Trustee
for the benefit of the Certificateholders, shall (and the Trustee hereby
designates the Master Servicer and the Special Servicer, as applicable, as the
Person that shall) maintain continuous possession of any Permitted Investment
that is either (i) a "certificated security", as such term is defined in the
UCC, or (ii) other property in which a secured party may perfect its security
interest by possession under the UCC or any other applicable law. Possession of
any such Permitted Investment by the Master Servicer or the Special Servicer
shall constitute possession by a person designated by the Trustee for purposes
of Section 8-313 of the UCC and possession by the Trustee, as secured party, for
purposes of Section 9-305 of the UCC and any other applicable law. If amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Master Servicer (in the case of the
Certificate Account) or the Special Servicer (in the case of the REO Account)
shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last
day such Permitted Investment may otherwise mature hereunder
in an amount equal to the lesser of (1) all amounts then
payable thereunder and (2) the amount required to be withdrawn
on such date; and
(y) demand payment of all amounts due thereunder promptly
upon determination by the Master Servicer or the Special
Servicer, as the case may be, that such Permitted Investment
would not constitute a Permitted Investment in respect of
funds thereafter on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds in
the Certificate Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.05(a). Whether or not the Special Servicer directs
the investment of funds in the REO Account, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Investment Account for each Collection Period, shall
be for the sole and exclusive benefit of the Special Servicer and shall be
subject to its withdrawal in accordance with Section 3.16(b). If any loss shall
be incurred in respect of any Permitted Investment on deposit in any Investment
Account, the Master Servicer (in the case of the Certificate Account) and the
Special Servicer (in the case of the REO Account) shall promptly deposit therein
from its own funds, without right of reimbursement, no later than the end of the
Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, for such Collection Period. The Trustee shall have no
liability whatsoever with respect to any such losses, except to the extent that
it is the obligor on any such Permitted Investment.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment and the Master Servicer or the Special Servicer, as applicable, has
not taken such action, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% of the Voting
Rights allocated to any Class, shall take such action as may be appropriate to
enforce such payment or performance, including, without limitation, the
institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment Account,
for purposes of the calculations hereunder, including, without limitation, the
calculation of the Available Distribution Amount and the Master Servicer
Remittance Amount, the amounts so invested (but not any interest earned thereon)
shall be deemed to remain on deposit in such Investment Account.
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.
(a) Each of the Master Servicer and the Special Servicer shall, as to those
Mortgage Loans it is obligated to service hereunder, use its best efforts in
accordance with the Servicing Standard to cause the related Mortgagor to
maintain (and, if the related Mortgagor does not so maintain, the Master
Servicer (even in the case of Specially Serviced Mortgage Loans) shall itself
maintain (subject to the provisions of this Agreement regarding Nonrecoverable
Advances, and further subject to Section 3.11(h) hereof), to the extent the
Trustee, as mortgagee on behalf of the Certificateholders, has an insurable
interest and to the extent available at commercially reasonable rates) all
insurance coverage as is required under the related Mortgage (subject to
applicable law); provided that if any Mortgage permits the holder thereof to
dictate to the Mortgagor the insurance coverage to be maintained on such
Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate,
shall impose such insurance requirements as are consistent with the Servicing
Standard. The Special Servicer shall cause to be maintained for each REO
Property, in each case with an insurer that possesses the Required Claims-Paying
Ratings at the time such policy is purchased, no less insurance coverage than
was previously required of the related Mortgagor under the related Mortgage and,
if the related Mortgage did not so require, hazard insurance, public liability
insurance and business interruption or rent loss insurance in such amounts as
are consistent with the Servicing Standard, and the Special Servicer shall be
reimbursed for the premium costs thereof as a Servicing Advance pursuant to and
to the extent permitted under Section 3.05(a). All such insurance policies shall
contain a "standard" mortgagee clause, with loss payable to the Master Servicer
(in the case of insurance maintained in respect of the Mortgaged Properties) or
the Special Servicer (in the case of insurance maintained in respect of REO
Properties) on behalf of the Trustee, shall be issued by an insurer authorized
under applicable law to issue such insurance, and, unless prohibited by the
related Mortgage, may contain a deductible clause (not in excess of a customary
amount). Any amounts collected by the Master Servicer or Special Servicer under
any such policies (other than amounts to be applied to the restoration or repair
of the related Mortgaged Property or REO Property or amounts to be released to
the related Mortgagor, in each case in accordance with the Servicing Standard)
shall be deposited in the Certificate Account, subject to withdrawal pursuant to
Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan,
or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the
case of amounts received in respect of an REO Property. Any cost incurred by the
Master Servicer or the Special Servicer, as applicable, in maintaining any such
insurance shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit.
(b) (i) If the Master Servicer or the Special Servicer shall obtain and
maintain a blanket policy insuring against hazard losses on any or all of the
Mortgaged Properties (in the case of the Master Servicer) or REO Properties (in
the case of the Special Servicer), then, to the extent such policy (i) is
obtained from a Qualified Insurer that possesses the Required Claims-Paying
Ratings, and (ii) provides protection equivalent to the individual policies
otherwise required, the Master Servicer or the Special Servicer, as the case may
be, shall conclusively be deemed to have satisfied its obligation to cause
hazard insurance to be maintained on the Mortgaged Properties or REO Properties,
as applicable, so covered, and the premium costs thereof shall be, if and to the
extent they are specifically attributable either to a specific Mortgaged
Property during any period that the related Mortgagor has failed to maintain the
hazard insurance required under the related Mortgage Loan in respect of such
Mortgaged Property or to a specific REO Property, a Servicing Advance
reimbursable pursuant to and to the extent permitted under Section 3.05(a);
provided that, to the extent that such premium costs are attributable to
properties other than Mortgaged Properties and/or REO Properties or are
attributable to Mortgaged Properties as to which the hazard insurance required
under the related Mortgage Loan is being maintained, they shall be borne by the
Master Servicer or Special Servicer, as the case may be, without right of
reimbursement. Such a blanket policy may contain a deductible clause (not in
excess of a customary amount), in which case the Master Servicer or the Special
Servicer, as appropriate, shall, if there shall not have been maintained on the
related Mortgaged Property or REO Property, as applicable, a hazard insurance
policy complying with the requirements of Section 3.07(a), and there shall have
been one or more losses which would have been covered by such property specific
policy (taking into account any deductible clause that would have been permitted
therein), promptly deposit into the Certificate Account from its own funds
(without right of reimbursement) the amount of such losses up to the difference
between the amount of the deductible clause in such blanket policy and the
amount of any deductible clause that would have been permitted under such
property specific policy. The Master Servicer and the Special Servicer each
agree to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims under any such blanket policy maintained by it in a
timely fashion in accordance with the terms of such policy.
(ii) If the Master Servicer shall cause any Mortgaged Property or the
Special Servicer shall cause any REO Property to be covered by a master single
interest insurance policy naming the Master Servicer or the Special Servicer, as
applicable, on behalf of the Trustee as the loss payee, then to the extent such
policy (i) is obtained from a Qualified Insurer that possesses the Required
Claims-Paying Ratings and (ii) provides protection equivalent to the individual
policies otherwise required, the Master Servicer or the Special Servicer, as
applicable, shall conclusively be deemed to have satisfied its obligation to
cause such insurance to be maintained on such Mortgaged Property (in the case of
the Master Servicer) or REO Property (in the case of the Special Servicer). If
the Master Servicer shall cause any Mortgaged Property as to which the related
Mortgagor has failed to maintain the required insurance coverage, or the Special
Servicer shall cause any REO Property, to be covered by such master single
interest insurance policy, then the incremental costs of such insurance
applicable to such Mortgaged Property or REO Property (i.e., other than any
minimum or standby premium payable for such policy whether or not any Mortgaged
Property or REO Property is covered thereby) paid by the Master Servicer or the
Special Servicer, as applicable, shall constitute a Servicing Advance. The
Master Servicer shall, consistent with the Servicing Standard and the terms of
the related Mortgage Loan documents, pursue the related Mortgagor for the amount
of such incremental costs. All other costs associated with any such master
single interest insurance policy (including, without limitation, any minimum or
standby premium payable for such policy) shall be borne by the Master Servicer
or Special Servicer, as the case may be, without right of reimbursement. Such
master single interest insurance policy may contain a deductible clause (not in
excess of a customary amount), in which case the Master Servicer or the Special
Servicer, as applicable, shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property, as the case may
be, a policy otherwise complying with the provisions of Section 3.07(a), and
there shall have been one or more losses which would have been covered by such
property specific policy had it been maintained, promptly deposit into the
Certificate Account from its own funds (without right of reimbursement) the
amount not otherwise payable under the master single interest policy because of
such deductible clause, to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan, or, in the
absence of any such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard.
(c) Each of the Master Servicer and the Special Servicer shall at all times
during the term of this Agreement keep in force with recognized insurers that
possess the Required Claims-Paying Ratings a fidelity bond in such form and
amount as would permit it to be a qualified ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac
seller-servicer of multifamily mortgage loans. Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provision if an Affiliate thereof has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Master Servicer or the Special Servicer, as the case may be. Such fidelity bond
shall provide that it may not be canceled without 30 days' prior written notice
to the Trustee.
In addition, each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement keep in force with recognized
insurers that possess the Required Claims-Paying Ratings a policy or policies of
insurance covering loss occasioned by the errors and omissions of its officers
and employees in connection with its obligation to service the Mortgage Loans
for which it is responsible hereunder, which policy or policies shall be in such
form and amount as would permit it to be a qualified ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
seller-servicer of multifamily mortgage loans. Any such errors and omissions
policy, if required, shall provide that it may not be canceled without 30 days'
prior written notice to the Trustee.
It is understood and agreed that the Rating Agencies have affirmed in
writing that the use of certain specified insurance carriers by the Master
Servicer, the Special Servicer and/or Sub-Servicers will not, in and of itself,
cause a downgrade, qualification or change in the rating assigned to any Class
of Certificates, notwithstanding that such insurance carriers do not possess the
Required Claims-Paying Ratings as of the Closing Date. It is further understood
and agreed that if the claims-paying ratings of any such insurance carrier are
downgraded below the level assigned as of the Closing Date, such insurance
carrier promptly shall be replaced by a Qualified Insurer that possesses the
Required Claims-Paying Ratings.
(d) All insurance coverage required to be maintained under this Section
3.07 shall be obtained from Qualified Insurers.
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing.
(a) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or of a
controlling interest in the related Mortgagor; or
(ii) provides that such Mortgage Loan may not be assumed without
the consent of the mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund,
each of the Master Servicer and the Special Servicer shall, on behalf of the
Trustee as the mortgagee of record, as to those Mortgage Loans it is obligated
to service hereunder, exercise (or waive its right to exercise) any right it may
have with respect to such Mortgage Loan (x) to accelerate the payments thereon,
or (y) to withhold its consent to any such sale or other transfer, in a manner
consistent with the Servicing Standard, but subject to Section 3.20(a)(iii);
provided that, notwithstanding anything to the contrary contained herein,
neither the Master Servicer nor the Special Servicer shall waive any right it
has, or grant any consent it is otherwise entitled to withhold, under any
related "due-on-sale" clause unless it first (1) shall have provided, at least
five Business Days prior to the granting of such waiver or consent, to any
single Holder that constitutes the Majority Certificateholder of the Controlling
Class and, in the case of the Master Servicer, to the Special Servicer written
notice of the matter and a written explanation of the surrounding circumstances,
(2) upon request made within such five Business Day-period, shall have discussed
the matter with any such single Holder that constitutes the Majority
Certificateholder of the Controlling Class and/or, in the case of the Master
Servicer, with the Special Servicer and (3) if the then-outstanding principal
balance of the subject Mortgage Loan (together with the then-outstanding
aggregate principal balance of all other Mortgage Loans to the same Mortgagor or
to other Mortgagors that are, to the Master Servicer's or Special Servicer's, as
applicable, actual knowledge, Affiliates of the Mortgagor under the subject
Mortgage Loan) is more than 2% of the then-outstanding aggregate principal
balance of the Mortgage Pool, shall have obtained written confirmation from each
Rating Agency that such action shall not result in a qualification, downgrade or
withdrawal of the rating then assigned by such Rating Agency to any Class of
Certificates; and provided, further, that, notwithstanding anything to the
contrary contained herein, neither the Master Servicer nor the Special Servicer
shall waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-sale" clause governing the transfer of any
Mortgaged Property which secures, or controlling interests in any Mortgagor
under, a Group of Cross-Collateralized Mortgage Loans unless all of the
Mortgaged Properties securing, or a controlling interest in all the Mortgagors
(if more than one) under, such Group of Cross-Collateralized Mortgage Loans are
transferred simultaneously to the same transferee. In the event that the Master
Servicer or Special Servicer intends or is required, in accordance with the
preceding sentence, the Mortgage Loan documents or applicable law, to permit the
transfer of any Mortgaged Property, the Master Servicer or the Special Servicer,
as the case may be, may, if consistent with the Servicing Standard, enter into a
substitution of liability agreement, pursuant to which the original Mortgagor
and any original guarantors are released from liability, and the transferee and
any new guarantors are substituted therefor and become liable under the Mortgage
Note and any related guaranties and, in connection therewith, may require from
the related Mortgagor a reasonable and customary fee for the additional services
performed by it, together with reimbursement for any related costs and expenses
incurred by it (but only to the extent that charging such fee will not be a
"significant modification" of the Mortgage Loan, or result in the receipt by
REMIC I or REMIC II of net income from a "prohibited transaction", under the
REMIC Provisions). The Master Servicer or the Special Servicer, as the case may
be, shall promptly notify the Trustee in writing of any such agreement and
forward the original thereof to the Trustee for inclusion in the related
Mortgage File.
(b) As to each Mortgage Loan which contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any additional
lien or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any such
additional lien or other encumbrance on the related Mortgaged
Property;
then, for so long as such Mortgage Loan is included in the Trust Fund, each of
the Master Servicer and the Special Servicer shall on behalf of the Trustee as
the mortgagee of record, as to those Mortgage Loans it is obligated to service
hereunder, exercise (or waive its right to exercise) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, but subject to
Section 3.20(a)(iii); provided that, notwithstanding anything to the contrary
contained herein, neither the Master Servicer nor the Special Servicer shall
waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause unless it first (1)
shall have provided, at least five Business Days prior to the granting of such
waiver or consent, to any single Holder that constitutes the Majority
Certificateholder of the Controlling Class and, in the case of the Master
Servicer, to the Special Servicer written notice of the matter and a written
explanation of the surrounding circumstances, and (2) upon request made within
such five Business Day-period, shall have discussed the matter with any such
single Holder that constitutes the Majority Certificateholder of the Controlling
Class and/or, in the case of the Master Servicer, with the Special Servicer; and
provided, further, that, notwithstanding anything to the contrary contained
herein, neither the Master Servicer nor the Special Servicer shall waive any
right it has, or grant any consent it is otherwise entitled to withhold, under
any related "due-on-encumbrance" clause until it has received written
confirmation from each Rating Agency that such action would not result in the
qualification, downgrade or withdrawal of the rating then assigned by such
Rating Agency to any Class of Certificates.
(c) Nothing in this Section 3.08 shall constitute a waiver of the Trustee's
right, as the mortgagee of record, to receive notice of any assumption of a
Mortgage Loan, any sale or other transfer of the related Mortgaged Property or
the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through (d) of
this Section 3.09, exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert (which may include
an REO Acquisition) the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, and which are
not released from the Trust Fund pursuant to any other provision hereof, if the
Special Servicer determines, consistent with the Servicing Standard, that such
action would be in the best economic interest of the Trust; provided that
neither the Master Servicer nor the Special Servicer shall, with respect to any
Hyper-Amortization Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection) unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Additional Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other amounts
due under such Mortgage Loan have been paid, the payment of such Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the good
faith and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated Advance Interest. The Special Servicer shall advance or direct the
Master Servicer to advance, as contemplated by Section 3.19(d), all costs and
expenses to be incurred on behalf of the Trust in any such proceedings, subject
to each of the Master Servicer and the Special Servicer being entitled to
reimbursement for any such advance as a Servicing Advance as provided in Section
3.05(a), and further subject to the Special Servicer's being entitled to pay out
of the related Liquidation Proceeds any Liquidation Expenses incurred in respect
of any Mortgage Loan, which Liquidation Expenses were outstanding at the time
such proceeds are received. In connection with the foregoing, in the event of a
default under any Mortgage Loan or Group of Cross-Collateralized Mortgage Loans
that are secured by real properties located in multiple states, and such states
include the State of California or another state with a statute, rule or
regulation comparable to the State of California's "one action" rule, then the
Special Servicer shall consult with Independent counsel regarding the order and
manner in which the Special Servicer should foreclose upon or comparably proceed
against such properties (the cost of such consultation to be advanced by the
Master Servicer as a Servicing Advance, at the direction of the Special
Servicer, subject to the Master Servicer's being entitled to reimbursement
therefor as a Servicing Advance as provided in Section 3.05(a)). When applicable
state law permits the Special Servicer to select between judicial and
non-judicial foreclosure in respect of any Mortgaged Property, the Special
Servicer shall make such selection in a manner consistent with the Servicing
Standard. Nothing contained in this Section 3.09 shall be construed so as to
require the Special Servicer, on behalf of the Trust, to make an offer on any
Mortgaged Property at a foreclosure sale or similar proceeding that is in excess
of the fair market value of such property, as determined by the Special Servicer
in its reasonable and good faith judgment taking into account the factors
described in Section 3.18(e) and the results of any Appraisal obtained pursuant
to the following sentence or otherwise, all such offers to be made in a manner
consistent with the Servicing Standard. If and when the Special Servicer or the
Master Servicer deems it necessary and prudent for purposes of establishing the
fair market value of any Mortgaged Property securing a defaulted Mortgage Loan,
whether for purposes of making an gffer at(foreclosure or otherwise, the Special
Servicer or the Master Servicer, as the case may be, is authorized to have an
Appraisal completed with respect to such property (the cost of which Appraisal
shall be advanced by the Master Servicer as a Servicing Advance, subject to its
being entitled to reimbursement therefor as a Servicing Advance as provided in
Section 3.05(a), such Advance to be made at the direction of the Special
Servicer when the Appraisal is obtained by the Special Service).
(b) The Special Servicer shall not acquire any personal property pursuant
to this Section 3.09 (with the exception of cash or cash equivalents pledged as
collateral for a Mortgage Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the reasonable cost of which may be withdrawn from the Certificate
Account pursuant to Section 3.05(a)) to the effect that the holding of
such personal property by the Trust will not cause either of REMIC I
or REMIC II to fail to qualify as a REMIC at any time that any
Certificate is outstanding or, subject to Section 3.17, cause the
imposition of a tax on the Trust under the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section 3.09, neither
the Special Servicer nor the Master Servicer shall, on behalf of the Trustee,
initiate foreclosure proceedings, obtain title to a Mortgaged Property in lieu
of foreclosure or otherwise, have a receiver of rents appointed with respect to
any Mortgaged Property, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on a Phase I Environmental Assessment (and any
additional environmental testing that the Special Servicer deems necessary and
prudent) of such Mortgaged Property performed by an Independent Person who
regularly conducts Phase I Environmental Assessments and such additional
environmental testing, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such
actions as are necessary to bring the Mortgaged Property in compliance
therewith and proceeding against the Mortgaged Property is reasonably
likely to produce a greater recovery to Certificateholders on a
present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders to be
performed at the related Net Mortgage Rate (or, in the case of a
Hyper-Amortization Loan after its Anticipated Repayment Date, at the
related Net Mortgage Rate immediately prior to the Anticipated
Repayment Date)), taking into consideration any associated
liabilities, than not taking such actions and not proceeding against
such Mortgaged Property; and
(ii) there are no circumstances or conditions present at the Mortgaged
Property relating to the use, management or disposal of Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any applicable
environmental laws and/or regulations or, if such circumstances or
conditions are present for which any such action could be required,
that taking such actions with respect to such Mortgaged Property and
proceeding against the Mortgaged Property is reasonably likely to
produce a greater recovery to Certificateholders on a present value
basis (the relevant discounting of anticipated collections that will
be distributable to Certificateholders to be performed at the related
Net Mortgage Rate (or, in the in the case of a Hyper-Amortization Loan
after its Anticipated Repayment Date, at the related Net Mortgage Rate
immediately prior to the Anticipated Repayment Date)), taking into
consideration any associated liabilities, than not taking such actions
and not proceeding against such Mortgaged Property.
The cost of such Phase I Environmental Assessment and any such additional
environmental testing, as well as the cost of any remedial, corrective or other
further action contemplated by clause (i) and/or clause (ii) of the preceding
paragraph, shall be advanced by the Master Servicer at the direction of the
Special Servicer given in accordance with the Servicing Standard; provided,
however, that the Master Servicer shall not be obligated in connection therewith
to advance any funds which, if so advanced, would constitute a Nonrecoverable
Servicing Advance. Amounts so advanced shall be subject to reimbursement as
Servicing Advances in accordance with Section 3.05(a).
(d) If the environmental testing contemplated by Section 3.09(c) above
establishes that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a defaulted Mortgage Loan, the Special Servicer shall take
such action as is in accordance with the Servicing Standard (other than
proceeding against the Mortgaged Property, but including the sale of the
affected Mortgage Loan) and, at such time as it deems appropriate, may, on
behalf of the Trustee, release all or a portion of such Mortgaged Property from
the lien of the related Mortgage; provided that prior to the release of all or a
portion of the related Mortgaged Property from the lien of the related Mortgage,
(i) the Special Servicer shall have notified the Trustee in writing of its
intention to so release all or a portion of such Mortgaged Property, (ii) the
Trustee shall have notified the Certificateholders in writing of the Special
Servicer's intention to so release all or a portion of such Mortgaged Property
and (iii) the Holders of Certificates entitled to a majority of the Voting
Rights shall not have objected to such release within 30 days of the Trustee's
distributing such notice.
(e) The Special Servicer shall provide written reports to the Trustee and
the Master Servicer monthly regarding any actions taken by the Special Servicer
with respect to any Mortgaged Property securing a defaulted Mortgage Loan as to
which the environmental testing contemplated in subsection (c) above has
revealed that either of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof has not been satisfied or that any remedial, corrective
or other further action contemplated by either such clause is required, in each
case until the earliest to occur of (i) satisfaction of both such conditions and
completion of all such remedial, corrective or other further action, (ii)
repurchase of the related Mortgage Loan by the Mortgage Loan Seller and (iii)
release of the lien of the related Mortgage on such Mortgaged Property. The
Trustee shall forward copies of all such reports to the Certificateholders and
the Rating Agencies promptly following the receipt thereof.
(f) The Special Servicer shall file the information returns with respect to
the receipt of any mortgage interest received in a trade or business, the
reports of foreclosures and abandonments and reports relating to any
cancellation of indebtedness income with respect to any Mortgaged Property
required by Sections 6050H, 6050J and 6050P of the Code and deliver to the
Trustee an Officer's Certificate stating that such reports have been filed. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by such Sections 6050H, 6050J and 6050P of the Code.
(g) The Special Servicer shall have the right to determine, in accordance
with the Servicing Standard, the advisability of the maintenance of an action to
obtain a deficiency judgment if the state in which the Mortgaged Property is
located and the terms of the Mortgage Loan permit such an action. The Master
Servicer, at the direction of the Special Servicer, shall advance the costs
incurred in any such deficiency action, subject to its being entitled to
reimbursement therefor as a Servicing Advance as provided in Section 3.05(a).
(h) The Special Servicer shall maintain accurate records, certified by a
Servicing Officer, of each Final Recovery Determination in respect of any
Mortgage Loan or REO Property and the basis thereof. [Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Master Servicer and the Rating Agencies no later than the ______
Business Day following such Final Recovery Determination.]
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer or Special Servicer of a notification that payment in full shall
be escrowed in a manner customary for such purposes, the Master Servicer or
Special Servicer, as the case may be, shall immediately notify the Trustee and
request delivery of the related Mortgage File by delivering thereto a Request
for Release in the form of Exhibit D attached hereto signed by a Servicing
Officer of the Master Servicer or Special Servicer, as applicable. Any such
Request for Release shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required to
be deposited in the Certificate Account pursuant to Section 3.04(a) have been or
will be so deposited. Upon receipt of such notice and request conforming in all
material respects to the provisions hereof, the Trustee shall promptly release,
or cause any related Custodian to release, the related Mortgage File to the
Master Servicer or Special Servicer, as applicable. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Certificate Account.
(b) If from time to time, and as appropriate for servicing or foreclosure
of any Mortgage Loan, the Master Servicer or the Special Servicer shall
otherwise require any Mortgage File (or any portion thereof), then, upon request
of the Master Servicer or the Special Servicer and receipt therefrom of a
Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation which are
required to be deposited into the Certificate Account pursuant to Section
3.04(a) have been or will be so deposited, or that such Mortgage Loan has become
an REO Property, the Request for Release shall be released by the Trustee to the
Master Servicer or the Special Servicer, as applicable.
(c) The Trustee, if requested, shall promptly execute and deliver to the
Special Servicer any court pleadings, requests for trustee's sale or other
documents furnished by the Special Servicer and certified by it as being
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Mortgage Note or Mortgage
or otherwise available at law or in equity or for any other purpose necessary or
advisable in the reasonable, good faith judgment of the Special Servicer;
provided, however, that the Special Servicer shall be responsible for the
preparation of all such documents and pleadings; and when submitted to the
Trustee for signature, such documents or pleadings shall be accompanied by a
certificate of a Servicing Officer requesting that such pleadings or documents
be executed by the Trustee and certifying as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
SECTION 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer shall
be entitled to receive the Master Servicing Fee with respect to each Mortgage
Loan (including, without limitation, each Specially Serviced Mortgage Loan) and
REO Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee
shall accrue at the applicable Master Servicing Fee Rate on the basis of the
same principal amount and for the same number of days respecting which any
related interest payment due on such Mortgage Loan or deemed to be due on such
REO Loan is computed under the terms of the related Mortgage Note (as such terms
may be changed or modified at any time following the Closing Date) and
applicable law, and without giving effect to any Additional Interest that may
accrue on any Hyper-Amortization Loan after its Anticipated Repayment Date. The
Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease
to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid
Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from
payments of interest on each Mortgage Loan and REO Revenues allocable as
interest on each REO Loan. The Master Servicer shall be entitled to recover
unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of
Insurance Xroceeds or Liquidation Proceeds, to the extent permitted by Section
3.05(a). The right to receive the Master Servicing Fee may not be transferred in
whole or in part except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement or except as
provided in Section 3.22(d). The Master Servicer shall, monthly out of its
Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer
such Sub-Servicer's sub-servicing fee (including, without limitation, any
Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is
entitled thereto under the applicable Sub-Servicing Agreement.
(b) The Master Servicer shall be entitled to receive as additional
servicing compensation:
(i) Default Charges, assumption fees, modification fees, charges for
beneficiary statements or demands and any similar fees (excluding
Prepayment Premiums), in each case to the extent actually paid by a
Mortgagor with respect to a Mortgage Loan that is not a Specially
Serviced Mortgage Loan;
(ii) amounts collected for checks returned for insufficient funds, to
the extent actually paid by a Mortgagor with respect to any Mortgage
Loan;
(iii) any Prepayment Interest Excesses collected on the Mortgage
Loans;
(iv) interest or other income earned on deposits in the Certificate
Account, in accordance with Section 3.06(b) (but only to the extent of
the Net Investment Earnings, if any, with respect to the Certificate
Account for each Collection Period); and
(v) to the extent not required to be paid to any Mortgagor under
applicable law or under the related Mortgage, any interest or other
income earned on deposits in the Servicing Accounts maintained by the
Master Servicer;
provided that with respect to the items of additional servicing compensation set
forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the
amounts described therein to the related Sub-Servicer to the extent such
Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement.
The Master Servicer shall be required to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts due and owing to any
Sub-Servicer retained by it and the premiums for any blanket policy insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of the Certificate Account, and the Master
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate on the basis of the same
principal amount and for the same number of days respecting which any related
interest payment due on such Mortgage Loan or deemed to be due on such REO Loan
is computed under the terms of the related Mortgage Note (as such terms may be
modified at any time following the Closing Date) and applicable law, and without
giving effect to any Additional Interest that may accrue on any
Hyper-Amortization Loan after its Anticipated Repayment Date. The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan
shall cease to accrue as of the date a Liquidation Event occurs in respect
thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special
Servicing Fees shall be payable monthly out of general collections on the
Mortgage Loans and any REO Properties on deposit in the Certificate Account
pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Standby Fee with respect to each Mortgage Loan
and each REO Loan. As to each Mortgage Loan and each REO Loan, the Standby Fee
shall accrue from time to time at the Standby Fee Rate on the basis of the same
principal amount and for the same number of days respecting which any related
interest payment due on such Mortgage Loan or deemed to be due on such REO Loan
is computed under the terms of the related Mortgage Note (as such terms may be
modified at any time following the Closing Date) and applicable law, and without
giving effect to any Additional Interest that may accrue on any
Hyper-Amortization Loan after its Anticipated Repayment Date. Standby Fees shall
be payable monthly by the Master Servicer on a loan-by-loan basis out of its
Master Servicing Fees received with respect to each Mortgage Loan and each REO
Loan.
As further compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Workout Fee with respect to each Corrected
Mortgage Loan, unless the basis on which such Mortgage Loan became a Corrected
Mortgage Loan was the remediation of a circumstance or condition relating to the
Mortgage Loan Seller's obligation to repurchase such Mortgage Loan pursuant to
Section 2.03, in which case, if such Mortgage Loan is repurchased within the
______ day period described in Section 2.03(a), no Workout Fee will be payable
from or based upon the receipt of, any Purchase Price paid by the Mortgage Loan
Seller in satisfaction of such repurchase obligation. Furthermore, no Workout
Fees will be payable from or based upon the receipt of any Liquidation Proceeds
paid by any Majority Certificateholder of the Controlling Class or the Master
Servicer in connection with the purchase of all the Mortgage Loans and any REO
Properties in the Trust Fund pursuant to Section 9.01 hereof. As to each
Corrected Mortgage Loan, subject to the exceptions provided for in the two
preceding sentences, the Workout Fee shall be payable from, and shall be
calculated by application of the Workout Fee Rate to, each collection of
interest (other than Default Interest and, in the case of a Hyper-Amortization
Loan after its Anticipated Repayment Date, Additional Interest) and principal
received on such Mortgage Loan for so long as it remains a Corrected Mortgage
Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to
be payable if a Servicing Transfer Event occurs with respect thereto or if the
related Mortgaged Property becomes an REO Property; provided that a new Workout
Fee will become payable if and when such Mortgage Loan again becomes a Corrected
Mortgage Loan. If the Special Servicer is terminated other than for cause or
resigns in accordance with clause (ii) of the first paragraph of Section 6.04,
it shall retain the right to receive any and all Workout Fees payable in respect
of Mortgage Loans that became Corrected Mortgage Loans during the period that it
acted as Special Servicer and were still such at the time of such termination or
resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
Mortgage Loan ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special Servicer
shall also be entitled to receive a Liquidation Fee with respect to each
Specially Serviced Mortgage Loan or REO Property as to which it receives any
full or discounted payoff from the related Mortgagor or any Liquidation Proceeds
(other than in connection with the purchase of any such Specially Serviced
Mortgage Loan or REO Property by the Special Servicer pursuant to Section 3.18,
by the Master Servicer or the Majority Certificateholder of the Controlling
Class pursuant to Section 3.18 or Section 9.01, or by the Mortgage Loan Seller
pursuant to Section 2.03 within _____ days of its discovery or notice of the
breach or Document Defect that gave rise to the repurchase obligation, and other
than in connection with the condemnation or other governmental taking of a
Mortgaged Property or REO Property). As to each such Specially Serviced Mortgage
Loan or REO Property, the Liquidation Fee shall be payable from, and shall be
calculated by application of the Liquidation Fee Rate to, such full or
discounted payoff and/or Liquidation Proceeds (excluding any portion of such
payoff and/or proceeds that represents accrued but unpaid Additional Interest
with respect to a Hyper-Amortization Loan after its Anticipated Repayment Date
or accrued but unpaid Default Interest); provided that no Liquidation Fee will
be payable with respect to any such Specially Serviced Mortgage Loan that
becomes a Corrected Mortgage Loan; and provided, further, that (without limiting
the Special Servicer's right to any Workout Fee that is properly payable
therefrom), no Liquidation Fee will be payable from, or based upon the receipt
of, Liquidation Proceeds collected as a result of any purchase of a Specially
Serviced Mortgage Loan or REO Property described in the parenthetical to the
first sentence of this paragraph or in connection with a condemnation or other
governmental taking of a Mortgaged Property or REO Property.
Notwithstanding anything to the contrary herein, a Liquidation Fee and a
Workout Fee relating to the same Mortgage Loan shall not be paid from the same
proceeds on or with respect to such Mortgage Loan.
The Special Servicer's right to receive the Special Servicing Fee, the
Standby Fee, the Workout Fee and/or the Liquidation Fee may not be transferred
in whole or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement.
(d) The Special Servicer shall be entitled to receive as additional special
servicing compensation:
(i) (A) to the extent allocable to the period when any Mortgage Loan
is a Specially Serviced Mortgage Loan or to the extent allocable to an
REO Loan, any Net Default Charges actually collected on such Mortgage
Loan or REO Loan, as the case may be, and (B) assumption fees,
modification fees, charges for beneficiary statements or demands and
any similar fees (excluding Prepayment Premiums) actually collected on
or with respect to Specially Serviced Mortgage Loans or REO Loans; and
(ii) interest or other income earned on deposits in the REO Account,
if established, in accordance with Section 3.06(b) (but only to the
extent of the Net Investment Earnings, if any, with respect to the REO
Account for each Collection Period).
To the extent the amounts described in clause (i)(B) of the preceding
paragraph are collected by the Master Servicer, the Master Servicer shall
promptly pay such amounts to the Special Servicer and shall not be required to
deposit such amounts in the Certificate Account pursuant to Section 3.04(a).
Additional servicing compensation to which the Master Servicer (or, if so
provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained
thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees,
modification fees, charges for beneficiary statements or demands and any similar
fees (excluding Prepayment Premiums) collected by the Special Servicer on
Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or
in the form of amounts collected for checks returned for insufficient funds with
respect to any Mortgage Loans (including, without limitation, Specially Serviced
Mortgage Loans), shall be paid promptly to the Master Servicer by the Special
Servicer.
The Special Servicer shall be required to pay out of its own funds all
overhead, general and administrative expenses incurred by it in connection with
its servicing activities hereunder (including, without limitation, payment of
any amounts due and owing to any Sub-Servicers retained by it and the premiums
for any blanket policy obtained by it insuring against hazard losses pursuant to
Section 3.07(b)), if and to the extent such expenses are not payable directly
out of the Certificate Account or the REO Account and the Master Servicer is not
required to advance such expenses at the direction of the Special Servicer, and
the Special Servicer shall not be entitled to reimbursement except as expressly
provided in this Agreement.
(e) If the Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so within 15 days after
such Servicing Advance is required to be made, the Trustee shall, if it has
actual knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure, as applicable, to the
Master Servicer and/or the Special Servicer. If such Servicing Advance is not
made by the Master Servicer or the Special Servicer within one Business Day
after such notice then (subject to Section 3.11(g) below), the Trustee shall
make such Servicing Advance. Any failure by the Master Servicer or the Special
Servicer to make a Servicing Advance it is required to make hereunder shall
constitute an Event of Default by the Master Servicer or the Special Servicer,
as the case may be, subject to and as provided in Section 7.01(a).
(f) As and to the extent permitted by Section 3.05(a), the Master Servicer,
the Special Servicer (to the extent it has not already been reimbursed for any
such Servicing Advance by the Master Servicer) and the Trustee shall each be
entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each Servicing Advance made thereby (out of its
own funds) for so long as such Servicing Advance is outstanding, and such
interest will be paid: first, out of any Default Charges collected on or in
respect of the related Mortgage Loan during, and allocable to, the period, if
any, that it was a Specially Serviced Mortgage Loan or an REO Loan; and second,
at any time coinciding with or following the reimbursement of such Servicing
Advance, out of general collections on the Mortgage Loans and any REO Properties
on deposit in the Certificate Account. As and to the extent provided in Sections
3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special
Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby
as soon as practicable after funds available for such purpose are(deposited in
the Certificate Account or a Servicing Account.
(g) Notwithstanding anything to the contrary set forth herein, none of the
Master Servicer, the Special Servicer or the Trustee, shall be required to make
any Servicing Advance (including, without limitation, an Emergency Advance) that
it determines in its reasonable, good faith judgment would constitute a
Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances
shall be reimbursable pursuant to Section 3.05(a)(vii) out of general
collections on the Mortgage Pool on deposit in the Certificate Account. The
determination by the Master Servicer, the Special Servicer or, if applicable,
the Trustee, that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be evidenced by an Officer's Certificate delivered promptly to
the Trustee (or, if applicable, retained thereby), the Depositor and the Rating
Agencies, setting forth the basis for such determination, together with (if such
determination is prior to the liquidation of the related Mortgage Loan or REO
Property) a copy of an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, which shall have been performed within the twelve
months preceding such determination, and further accompanied by any other
information, including, without limitation, engineers' reports, environmental
surveys, inspection reports, rent rolls, income and expense statements or
similar reports, that the Master Servicer or the Special Servicer may have
obtained and that supports such determination. If such an Appraisal shall not
have been required and performed pursuant to the terms of this Agreement, the
Master Servicer or the Special Servicer, as the case may be, may, subject to its
reasonable and good faith determination that such Appraisal will demonstrate the
nonrecoverability of a Servicing Advance, obtain an Appraisal for such purpose
at the expense of the Trust. The Trustee shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Master
Servicer or the Special Servicer with respect to a particular Servicing Advance,
and the Master Servicer shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Special Servicer with respect
to a particular Servicing Advance.
(h) Notwithstanding anything to the contrary set forth herein, the Master
Servicer shall (at the direction of the Special Servicer if a Specially Serviced
Mortgage Loan or an REO Property is involved) pay directly out of the
Certificate Account any servicing expense that, if paid by the Master Servicer
or the Special Servicer, would constitute a Nonrecoverable Servicing Advance;
provided that the Master Servicer (or the Special Servicer, if a Specially
Serviced Mortgage Loan or an REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment is in the best
interests of the Certificateholders (as a collective whole), as evidenced by an
Officer's Certificate delivered promptly to the Trustee, the Depositor and the
Rating Agencies, setting forth the basis for such determination and accompanied
by any information that the Master Servicer or the Special Servicer may have
obtained that supports such determination.
SECTION 3.12 Inspections; Collection of Financial Statements.
(a) Commencing in 199_, the Master Servicer shall inspect or cause the
inspection of each Mortgaged Property at least once every two years (or, if the
related Mortgage Loan has a then current balance greater than $2,000,000, at
least once every year), provided that at least 50% of the Mortgaged Properties
(by both number and aggregate Stated Principal Balances of the related Mortgage
Loans) will be inspected each year by the Master Servicer (or an entity employed
by the Master Servicer for such purpose) or, in accordance with the second
succeeding sentence, by the Special Servicer. The Master Servicer shall be
responsible for such inspections only in respect of (i) Mortgage Loans that are
not Specially Serviced Mortgage Loans and (ii) Corrected Mortgage Loans. The
Special Servicer, subject to statutory limitations or limitations set forth in
the related Mortgage Loan documents, shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after the
servicing of the related Mortgage Loan is transferred thereto pursuant to
Section 3.21(a). The Master Servicer and the Special Servicer shall each prepare
or cause to be prepared as soon as reasonably possible a written report of each
such inspection performed or caused to be performed thereby detailing the
condition of the Mortgaged Property and specifying the existence of (i) any
vacancy in the Mortgaged Property that is, in the reasonable judgment of the
Master Servicer or Special Servicer (or their respective designees), as the case
may be, material and is evident from such inspection, (ii) any abandonment of
the Mortgaged Property, (iii) any change in the condition or value of the
Mortgaged Property that is, in the reasonable judgment of the Master Servicer or
Special Servicer (or their respective designees), as the case may be, material
and is evident from such inspection, (iv) any waste on or deferred maintenance
in respect of the Mortgaged Property that is evident from such inspection or (v)
any capital improvements made that are evident from such inspection. The Master
Servicer and Special Servicer each shall, within ____ days of the preparation
thereof, deliver to the Trustee, any single Holder that then constitutes the
Majority Certificateholder of the Controlling Class, the Rating Agencies and
each other a copy of (and, upon request, shall promptly discuss therewith the
contents of) each such written report prepared or caused to be prepared by or on
behalf of it. Furthermore, the Master Servicer shall obtain (and shall deliver
to the requesting party and the Trustee) such additional information with
respect to the matters addressed in such written report as the Special Servicer,
and/or any single Holder that then constitutes the Majority Certificateholder of
the Controlling Class, may reasonably request and shall cooperate with and
reasonably assist the Special Servicer in making direct inquiries with any
Mortgagor to the extent any such direct inquiry by the Special Servicer would
not violate the terms of any applicable Sub-Servicing Agreement; provided that
if the Special Servicer or any such Certificateholder shall desire such an
inquiry to be made of a Mortgagor, and if the subject Mortgage Loan is then
being primary serviced by a Sub-Servicer, then the Master Servicer shall in each
instance (regardless of whether such Mortgage Loan was originated by such
Sub-Servicer), unless otherwise agreed by such Sub-Servicer, first request that
such Sub-Servicer make such inquiry (and the Master Servicer or the Special
Servicer may contact such Mortgagor directly in such instance if such request
has been so made to such Sub-Servicer and the requested information has not
thereafter been obtained by such Sub-Servicer within a reasonable time). The
Trustee shall make available to Certificateholders, Certificate Owners and
prospective Certificateholders and Certificate Owners (which prospective
Certificateholders and Certificate Owners have been certified to it as such by a
Certificateholder or a Certificate Owner), in accordance with Section 8.12(b),
copies of all the written reports delivered to it pursuant to this Section
3.12(a) and, if and to the extent delivered to it in a written or electronic
format, the related additional information referred to in the preceding
sentence. In the absence of actual knowledge that the Master Servicer or the
Special Servicer is in default under this Section 3.12(a), the Trustee shall
have no obligation to confirm that inspections of the Mortgaged Properties are
being performed in accordance with this Section 3.12(a). The preceding sentence
notwithstanding, in the event the Trustee has received, as of December 31 of any
calendar year, inspection reports with respect to less than 50% of the Mortgaged
Properties as set forth in the first sentence of this Section 3.12(a), the
Trustee shall notify the Master Servicer of such fact in writing on or before
January 31 of the immediately succeeding calendar year. The notice provided by
the Trustee to the Master Servicer of the deficiency in the number of inspection
reports provided to the Trustee, shall constitute notice "requiring the same to
be remedied" within the meaning of Section 7.01(a)(vi) hereof and shall so state
on its face. If the Master Servicer does not provide satisfactory evidence
(which shall include the presentation of the required reports) of the
performance of the number of inspections required pursuant to the first sentence
of this Section 3.12(a) within _____ days of such notice, the Master Servicer
shall be deemed to have failed duly to observe and perform in all material
respects its covenants and agreements set forth in this Section 3.12(a).
(b) The Special Servicer, in the case of the Specially Serviced Mortgage
Loans and REO Properties, and the Master Servicer, in the case of all other
Mortgage Loans, shall make reasonable efforts to collect or otherwise obtain
promptly (from the related Mortgagor in the case of a Mortgage Loan) annual and
quarterly operating statements and rent rolls of the related Mortgaged Property
or REO Property (and financial statements of the related Mortgagor in the case
of a Mortgage Loan), whether or not delivery of such items is required pursuant
to the terms of the related Mortgage. The Special Servicer, in the case of the
Specially Serviced Mortgage Loans and REO Properties, and the Master Servicer,
in the case of all other Mortgage Loans, shall promptly: (i) review all such
items as may be collected; (ii) prepare written reports based on such reviews
identifying the revenues, expenses, Net Operating Income and Debt Service
Coverage Ratios for the related Mortgage Loans and REO Loans and any
extraordinary increases or decreases in expenses or revenues associated with the
related Mortgaged Properties and REO Properties; (iii) deliver copies of the
collected items, and of the written reports prepared in respect thereof, to the
Trustee, any single Holder that then constitutes the Majority Certificateholder
of the Controlling Class, the Rating Agencies and each other, in each case
within ____ days of its receipt or preparation, as applicable (it being
understood and agreed that with respect to Mortgage Loans (including, without
limitation, Specially Serviced Mortgage Loans) that are primary serviced by a
Sub-Servicer, such collected items shall be deemed to have been received by the
Master Servicer or the Special Servicer, as the case may be, at the same time
they are received by the applicable Sub-Servicer); and (iv) promptly upon the
request of any Person referred in the immediately preceding clause (iii), to
discuss therewith the contents of the collected items and the written reports
referred to in the immediately preceding clause (iii). Furthermore, the Master
Servicer shall obtain (and shall deliver to the requesting party and the
Trustee) such additional information with respect to the matters addressed in
the collected items and written reports referred to above as the Special
Servicer, and/or any single Holder that then constitutes the Majority
Certificateholder of the Controlling Class, may reasonably request and shall
cooperate with and reasonably assist the Special Servicer in making direct
inquiries with any Mortgagor to the extent any such direct inquiry by the
Special Servicer would not violate the terms of any applicable Sub-Servicing
Agreement; provided that if the Special Servicer or any such Certificateholder
shall desire such an inquiry to be made of a Mortgagor, and if the subject
Mortgage Loan is then being primary serviced by a Sub-Servicer, then the Master
Servicer shall in each instance (regardless of whether such Mortgage Loan was
originated by such Sub-Servicer), unless otherwise agreed by such Sub-Servicer,
first request that such Sub-Servicer make such inquiry (and the Master Servicer
or the Special Servicer may contact such Mortgagor directly in such instance if
such request has been so made to such Sub-Servicer and the requested information
has not thereafter been obtained by such Sub-Servicer within a reasonable time).
The Trustee shall make available to Certificateholders, Certificate Owners and
prospective Certificateholders and Certificate Owners (which prospective
Certificateholders and Certificate Owners have been certified to it as such by a
Certificateholder or a Certificate Owner), in accordance with Section 8.12(b),
copies of all the written reports delivered to it pursuant to this Section
3.12(b) and, if and to the extent delivered to it in written or electronic
format, the related additional information referred to in the preceding
sentence. In the absence of actual knowledge that the Master Servicer or the
Special Servicer is in default under this Section 3.12(b), the Trustee shall
have no obligation to confirm that the Master Servicer or the Special Servicer
has or is attempting to collect any of the items described above in this Section
3.12(b).
SECTION 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to the
Trustee, with a copy to the Depositor, on or before __________ of each year,
beginning _________, 199_, an Officer's Certificate stating that (i) a review of
the activities of the Master Servicer or the Special Servicer, as the case may
be, during the preceding calendar year, and of its performance under this
Agreement during such calendar year, has been made under the signing officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has in all
material respects fulfilled all of its obligations under this Agreement
thzoughout such calendar year, or, if there has been a material default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof, and (iii) the Master Servicer or the
Special Servicer, as the case may be, has received no notice regarding the
qualification or status as a REMIC of, or otherwise asserting a tax (other than
ad valorem real property taxes or other similar taxes on REO Property) on the
income or assets of, any portion of the Trust Fund from the Internal Revenue
Service or from any other governmental agency or body or, if it has received any
such notice, specifying the details thereof. The signing officer shall have no
personal liability with respect to the content of any such statement, and the
Master Servicer or the Special Servicer, as the case may be, shall be deemed to
have made such statement and shall assume any liability resulting therefrom.
The Master Servicer and the Special Servicer, to the extent applicable,
will reasonably cooperate with the Depositor in conforming any Officer's
Certificate delivered pursuant to this Section 3.13 to requirements imposed by
the Commission on the Depositor in connection with the Commission's issuance of
a no-action letter relating to the Depositor's reporting requirements in respect
of the Trust pursuant to the Exchange Act.
SECTION 3.14 Reports by Independent Public Accountants.
On or before __________ of each year, beginning _______, 199___ (or, as to
any such year, such earlier date as is contemplated by the last sentence of this
paragraph), each of the Master Servicer and the Special Servicer, at its
expense, shall cause a firm of independent public accountants that is a member
of the American Institute of Certified Public Accountants to furnish a statement
to the Depositor and the Trustee to the effect that such firm has examined such
documents and records as it has deemed necessary and appropriate relating to the
Master Servicer's or the Special Servicer's, as the case may be, servicing of
the Mortgage Loans under this Agreement or the servicing of mortgage loans
similar to the Mortgage Loans under substantially similar agreements for the
preceding calendar year (or during the period from the date of commencement of
the Master Servicer's or the Special Servicer's, as the case may be, duties
hereunder until the end of such preceding calendar year in the case of the first
such certificate) and that the assertion of the management of the Master
Servicer or the Special Servicer, as the case may be, that it maintained an
effective internal control system over servicing of the Mortgage Loans or
similar mortgage loans is fairly stated in all material respects, based upon
established criteria, which statement meets the standards applicable to
accountants' reports intended for general distribution. In rendering its report
such firm may rely, as to matters relating to the direct servicing of
securitized commercial and multifamily mortgage loans by Sub-Servicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those Sub-Servicers.
If the Depositor notifies the Trustee, the Master Servicer and the Special
Servicer on or before _________ of any year that such statements are required to
be filed with the Commission as part of the Form 10-K for the Trust covering the
prior calendar year, each of the Master Servicer and the Special Servicer shall
deliver such statement in respect of it by ____________ of such year.
The Master Servicer and the Special Servicer, to the extent applicable,
will reasonably cooperate with the Depositor in conforming any reports delivered
pursuant to this Section 3.14 to requirements imposed by the Commission on the
Depositor in connection with the Commission's issuance of a no-action letter
relating to the Depositor's reporting requirements in respect of the Trust
pursuant to the Exchange Act.
SECTION 3.15 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall provide or cause
to be provided to the other such party, the Depositor, the Trustee and the
Rating Agencies, and to the OTS, the FDIC, and any other federal or state
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Mortgage Loans and
the other assets of the Trust Fund that are within its control which may be
required by this Agreement or by applicable law. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it.
SECTION 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate of
sale shall be issued to the Trustee on behalf of the Certificateholders. The
Special Servicer shall sell any REO Property by the end of the third calendar
year following the year in which the Trust acquires ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) is granted an extension of time (an "REO Extension") by the
Internal Revenue Service to sell such REO Property or (ii) obtains for the
Trustee and the REMIC Administrator an Opinion of Counsel, addressed to the
Trustee and the REMIC Administrator, to the effect that the holding by the Trust
of such REO Property subsequent to the end of the third calendar year following
the year in which such acquisition occurred, will not result in the imposition
of taxes on "prohibited transactions" of REMIC I or REMIC II as defined in
Section 860F of the Code or cause REMIC I or REMIC II to fail to qualify as a
REMIC at any time that any Certificates are outstanding. If the Special Servicer
is granted the REO Extension contemplated by clause (i) of the immediately
preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii)
of the immediately preceding sentence, the Special Servicer shall sell such REO
Property within such period longer than three years following the year that such
property was acquired, as is permitted by such REO Extension or such Opinion of
Counsel, as the case may be. Any reasonable expense incurred by the Special
Servicer in connection with its being granted the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall be
an expense of the Trust payable out of the Certificate Account pursuant to
Section 3.05(a). Any REO Extension shall be requested by the Special Servicer no
later than ___ days before the end of the third calendar year following the year
in which the Trust acquired ownership of the related REO Property.
(b) The Special Servicer shall segregate and hold all funds collected and
received in connection with any REO Property separate and apart from its own
funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"REO Account"), to be held on behalf of the Trustee in trust for the benefit of
the Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property. The REO Account shall be an Eligible Account and may
consist of one account for all the REO Properties. The Special Servicer shall
deposit, or cause to be deposited, in the REO Account, within two Business Days
of receipt, all REO Revenues, Liquidation Proceeds (net of all Liquidation
Expenses paid therefrom) and Insurance Proceeds received in respect of an REO
Property. The Special Servicer is authorized to pay out of related Liquidation
Proceeds any Liquidation Expenses incurred in respect of an REO Property and
outstanding at the time such proceeds are received. Funds in the REO Account may
be invested in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall be entitled to make withdrawals from the REO Account to
pay itself, as additional servicing compensation in accordance with Section
3.11(d), interest and investment income earned in respect of amounts held in the
REO Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the REO Account for any Collection Period).
The Special Servicer shall give notice to the other parties hereto of the
location of the REO Account when first established and of the new location of
the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only to the extent of amounts on deposit in the REO
Account relating to such REO Property. Within one Business Day following the end
of each Collection Period, the Special Servicer shall withdraw from the REO
Account and deposit into the Certificate Account or deliver to the Master
Servicer (which shall deposit such amounts into the Certificate Account) the
aggregate of all amounts received in respect of each REO Property during such
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that the Special Servicer may retain in the REO
Account such portion of proceeds and collections as may be necessary to maintain
a reserve of sufficient funds for the proper operation, management, maintenance
and disposition of the related REO Property (including without limitation the
creation of a reasonable reserve for repairs, replacements and necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items to be incurred during the following twelve-month
period.
(d) The Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17 Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property securing a
defaulted Mortgage Loan, the Special Servicer shall review the operation of such
Mortgaged Property and determine the nature of the income that would be derived
from such property if it were acquired by the Trust. If the Special Servicer
determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property
would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the
tax imposed on "prohibited transactions" under Section 860F of the
Code (either such tax referred to herein as an "REO Tax"), such
Mortgaged Property may be Directly Operated by the Special Servicer as
REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an
REO Tax, but that a lease of such property to another party to operate
such property, or the performance of some services by an Independent
Contractor with respect to such property, or another method of
operating such property would not result in income subject to an REO
Tax, then the Special Servicer may (provided, that in the good faith
and reasonable judgment of the Special Servicer, it is commercially
feasible) acquire such Mortgaged Property as REO Property and so lease
or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax
and that no commercially feasible means exists to operate such
property as REO Property without the Trust incurring or possibly
incurring an REO Tax on income from such property, the Special
Servicer shall deliver to the REMIC Administrator, in writing, a
proposed plan (the "Proposed Plan") to manage such property as REO
Property. Such plan shall include potential sources of income, and to
the extent commercially feasible, estimates of the amount of income
from each such source. Within a reasonable period of time after
receipt of such plan, the REMIC Administrator shall consult with the
Special Servicer and shall advise the Special Servicer of the Trust's
federal income tax reporting position with respect to the various
sources of income that the Trust would derive under the Proposed Plan.
In addition, the REMIC Administrator shall (to the maximum extent
possible) advise the Special Servicer of the estimated amount of taxes
that the Trust would be required to pay with respect to each such
source of income. After receiving the information described in the two
preceding sentences from the REMIC Administrator, the Special Servicer
shall either (A) implement the Proposed Plan (after acquiring the
respective Mortgaged Property as REO Property) or (B) manage and
operate such property in a manner that would not result in the
imposition of an REO Tax on the income derived from such property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the good faith and reasonable judgment of
the Special Servicer as to which means would be in the best interest of the
Certificateholders by maximizing (to the extent commercially feasible) the net
after-tax REO Revenues received by the Trust with respect to such property
without materially impairing its marketability and, to the extent consistent
with the foregoing, in the same manner as would prudent mortgage loan servicers
and asset managers operating acquired mortgaged property comparable to such REO
Property. Both the Special Servicer and the REMIC Administrator may consult with
counsel knowledgeable in such matters at (to the extent reasonable) the expense
of the Trust in connection with determinations required under this Section
3.17(a). Neither the Special Servicer nor the REMIC Administrator shall be
liable to the Certificateholders, the Trust, the other parties hereto or each
other for errors in judgment made in good faith in the reasonable exercise of
their discretion while performing their respective responsibilities under this
Section 3.17(a) or, to the extent it relates to federal income tax consequences
for the Trust, Section 3.17(b) below. Nothing in this Section 3.17(a) is
intended to prevent the sale of a Defaulted Mortgage Loan or REO Property
pursuant to the terms and subject to the conditions of Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders solely for the purpose of its prompt disposition and sale in
a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as contemplated by Section 3.17(a), result in the receipt by either of
REMIC I or REMIC II of any "income from non-permitted assets" within the meaning
of Section 860F(a)(2)(B) of the Code or in an Adverse REMIC Event in respect of
any such REMIC. Except as provided in Section 3.17(a), the Special Servicer
shall not enter into any lease, contract or other agreement that causes REMIC I
to receive, and (unless required to do so under any lease, contract or agreement
to which the Special Servicer or the Trust may become a party or successor to a
party due to a foreclosure, deed-in-lieu of foreclosure or other similar
exercise of a creditor's rights or remedies with respect to a Mortgage Loan)
shall not cause or allow REMIC I to receive any "net income from foreclosure
property" that is subject to taxation under the REMIC Provisions. Subject to the
foregoing, however, the Special Servicer shall have full power and authority to
do any and all things in connection therewith as are consistent with the
Servicing Standard and, consistent therewith, shall withdraw from the REO
Account, to the extent of amounts on deposit therein with respect to any REO
Property, funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO Property
that may result in the imposition of a lien thereon;
[(iii) any ground rents in respect of such REO Property;] and
(iv) all costs and expenses necessary to maintain, lease, sell, protect,
manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any
REO Property are insufficient for the purposes set forth in clauses (i) through
[(iv)] above with respect to such REO Property, the Special Servicer shall
direct the Master Servicer to make (and the Master Servicer shall so make)
Servicing Advances in such amounts as are necessary for such purposes unless (as
evidenced in the manner contemplated by Section 3.11(g)) the Special Servicer or
the Master Servicer determines, in its reasonable, good faith judgment, that
such payment would be a Nonrecoverable Servicing Advance.
(c) The Special Servicer may (and, except as otherwise permitted by Section
3.17(a), shall if it would avoid an Adverse REMIC Event) contract with any
Independent Contractor for the operation and management of any REO Property,
provided that:
(i) the terms and conditions of any such contract may not be inconsistent
herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor [(which shall be expenses of
the Trust)] shall be reasonable and customary in consideration of the
nature and locality of the REO Property;
(iii) any such contract shall be consistent with the provisions of Treasury
Regulation ss.1.856-4(b)(5) and, to the extent consistent therewith,
shall be administered to require that the Independent Contractor, in a
timely manner, (A) to the extent of available revenue from the REO
Property, pay all costs and expenses incurred in connection with the
operation and management of such REO Property, including, without
limitation, those listed in Section 3.17(b) above, and (B) remit all
related revenues collected (net of [its fees and] such costs and
expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any such
contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties
and obligations hereunder with respect to the operation and management
of any such REO Property;
(v) the Special Servicer shall be obligated with respect thereto to the
same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property;
and
(vi) the appointment of such Independent Contractor will not result in a
qualification, downgrading or withdrawal of any of the ratings then
assigned to the Certificates by such Rating Agency (as evidenced in
writing or otherwise by such Rating Agency).
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 3.18 Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale or purchase
of, a Mortgage Loan or REO Property only on the terms and subject to the
conditions set forth in this Section 3.18 or as otherwise expressly provided in
or contemplated by Sections 2.03 and 9.01.
(b) [If the Special Servicer has determined, in its good faith and
reasonable judgment, that any Defaulted Mortgage Loan will become the subject of
a foreclosure sale or similar proceeding, and that the sale of such Mortgage
Loan under the circumstances provided in this Section 3.18(b) or in Section
3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall
promptly so notify in writing the Trustee and the Master Servicer, and the
Trustee shall, within 10 days after receipt of such notice, notify all the
Certificateholders of the Controlling Class. The Majority Certificateholder of
the Controlling Class may at its option purchase from the Trust, at a price
equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The
Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be
deposited into the Certificate Account, and the Trustee, upon receipt of an
Officer's Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the Certificateholder(s)
effecting such purchase (or any designee thereof) the related Mortgage File, and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be provided to it and are reasonably necessary
to vest in the Certificateholder(s) effecting such purchase (or any designee
thereof) ownership of such Mortgage Loan. In connection with any such purchase,
the Special Servicer shall deliver the related Servicing File to the
Certificateholder(s) effecting such purchase (or any designee thereof).
(c) If the Majority Certificateholder of the Controlling Class has not
purchased any Defaulted Mortgage Loan described in the first sentence of Section
3.18(b) within 15 days of its having received notice in respect thereof pursuant
to Section 3.18(b)] above, either the Special Servicer or, subject to the
Special Servicer's prior rights in such regard, the Master Servicer may at its
option purchase such Mortgage Loan from the Trust, at a price equal to the
Purchase Price. The Purchase Price for any such Mortgage Loan purchased under
this paragraph (c) shall be deposited into the Certificate Account, and the
Trustee, upon receipt of an Officer's Certificate from the Master Servicer to
the effect that such deposit has been made, shall release or cause to be
released to the Master Servicer or the Special Servicer, as applicable, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the Master Servicer or the Special
Servicer, as applicable, the ownership of such Mortgage Loan. In connection with
any such purchase by the Master Servicer, the Special Servicer shall deliver the
related Servicing File to the Master Servicer.
(d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not
otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and
when the Special Servicer determines, consistent with the Servicing Standard,
that such a sale would be in the best economic interests of the Trust. Such
offer shall be made in a commercially reasonable manner (which, for purposes
hereof, includes an offer to sell without representation or warranty other than
customary warranties of title, loan status, condition and similar customary
matters, if liability for breach thereof is limited to recourse against the
Trust) for a period of not less than 30 days. Unless the Special Servicer
determines that acceptance of any offer would not be in the best economic
interests of the Trust, the Special Servicer shall accept the highest cash offer
received from any Person that constitutes a fair price for such Mortgage Loan.
In the absence of any offer determined as provided below to be fair, the Special
Servicer shall proceed with respect to such Defaulted Mortgage Loan in
accordance with Section 3.09 and, otherwise, in accordance with the Servicing
Standard.
The Special Servicer shall use its best efforts to solicit offers for each
REO Property in such manner as will be reasonably likely to realize a fair price
within the time period provided for by Section 3.16(a). The Special Servicer
shall accept the first (and, if multiple offers are received contemporaneously,
highest) cash offer received from any Person that constitutes a fair price
(determined pursuant to Section 3.18(e) below) for such REO Property. If the
Special Servicer reasonably believes that it will be unable to realize a fair
price (determined pursuant to Section 3.18(e) below) for any REO Property within
the time constraints imposed by Section 3.16(a), the Special Servicer shall
dispose of such REO Property upon such terms and conditions as the Special
Servicer shall deem necessary and desirable to maximize the recovery thereon
under the circumstances and, in connection therewith, shall accept the highest
outstanding cash offer, regardless of from whom received.
The Special Servicer shall give the Trustee and the Master Servicer not
less than five Business Days' prior written notice of its intention to sell any
Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No
Interested Person shall be obligated to submit an offer to purchase any such
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee nor any of its respective Affiliates may make an
offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant
hereto.
(e) Whether any cash offer constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer or, if such cash offer is
from an Interested Person, by the Trustee. In determining whether any offer
received from an Interested Person represents a fair price for any such Mortgage
Loan or REO Property, the Trustee shall be supplied with and shall rely on the
most recent Appraisal or updated Appraisal conducted in accordance with this
Agreement within the preceding 12-month period or, in the absence of any such
Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained
by the Special Servicer. Such appraiser shall be selected by the Special
Servicer if neither the Special Servicer nor any Affiliate thereof is making an
offer with respect to a Defaulted Mortgage Loan or REO Property and shall be
selected by the Trustee if the Special Servicer or an Affiliate thereof is
making such an offer. The cost of any such narrative appraisal shall be advanced
by the Master Servicer, at the direction of the Special Servicer, and shall
constitute a Servicing Advance. When any Interested Person is among those making
an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special
Servicer shall require that all offers be submitted in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the
offered amount. In determining whether any offer from a Person other than an
Interested Person constitutes a fair price for any such Mortgage Loan or REO
Property, the Special Servicer shall take into account (in addition to the
results of any Appraisal, updated Appraisal or narrative Appraisal that it may
have obtained pursuant to this Agreement within the prior 12 months), and in
determining whether any offer from an Interested Person constitutes a fair price
for any such Mortgage Loan or REO Property, any appraiser or other expert in
real estate matters shall be instructed to take into account, as applicable,
among other factors, the period and amount of any delinquency on the affected
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation to
dispose of any REO Property within the time period specified in Section 3.16(a).
Notwithstanding the other provisions of this Section 3.18, no cash offer from
any Interested Person or any Affiliate thereof in an amount less than the
related Purchase Price shall constitute a fair price for any Defaulted Mortgage
Loan or REO Property unless such offer is the highest cash offer received and at
least two additional offers (not including the offers of Interested Persons or
any Affiliates thereof) have been received fzom Independent third parties
reflecting prices less than the related Purchase Price. The Purchase Price for
any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair
price.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer
shall act on behalf of the Trustee in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Mortgage
Loan or REO Property, and the collection of all amounts payable in connection
therewith. In connection therewith, the Special Servicer may charge prospective
offerors, and may retain, fees that approximate the Special Servicer's actual
costs in the preparation and delivery of information pertaining to such sales or
evaluating offers without obligation to deposit such amounts into the
Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property
shall be final and without recourse to the Trustee or the Trust (except such
recourse imposed by those representations and warranties typically given in such
transactions, any prorations applied thereto and any customary closing matters),
and if such sale is consummated in accordance with the terms of this Agreement,
none of the Special Servicer, the Master Servicer or the Trustee shall have any
liability to any Certificateholder with respect to the purchase price therefor
accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for
cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC
Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(h) Notwithstanding any of the foregoing paragraphs of this Section 3.18,
the Special Servicer shall not be obligated to accept the highest cash offer if
the Special Servicer determines, in accordance with the Servicing Standard, that
rejection of such offer would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash offer (from
any Person other than itself or an Affiliate) if it determines, in accordance
with the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations or the terms
(other than price) offered by the prospective buyer making the lower offer are
more favorable).
SECTION 3.19 Additional Obligations of the Master Servicer and the Special
Servicer
(a) The Master Servicer shall maintain at its Primary Servicing Office and
shall, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
Certificate Owner or any Person identified to the Master Servicer as a
prospective transferee of a Certificate or an interest therein, copies of the
Servicing Files; provided that, if the Master Servicer in its reasonable, good
faith determination believes that any item of information contained in such
Servicing Files is of a nature that it should be conveyed to all
Certificateholders at the same time, it shall, as soon as reasonably possible
following its receipt of any such item of information, disclose such item of
information to the Trustee as part of the reports to be delivered to the Trustee
by the Master Servicer pursuant to Section 4.02(b), and until the Trustee has
either disclosed such information to all Certificateholders in a Distribution
Date Statement or has properly filed such information with the Commission on
behalf of the Trust under the Exchange Act, the Master Servicer shall be
entitled to withhold such item of information from any Certificateholder or
Certificate Owner or prospective transferee of a Certificate or an interest
therein; and provided, further, that the Servicer shall not be required to make
particular items of information contained in the Servicing File for any Mortgage
Loan available to any Person if the disclosure of such particular items of
information is expressly prohibited by the provisions of any related Mortgage
Loan documents. Except as set forth in the provisos to the preceding sentence,
copies of all or any portion of any Servicing File are to be made available by
the Master Servicer upon request; however, the Master Servicer shall be
permitted to require payment of a sum sufficient to cover the reasonable
out-of-pocket costs and expenses of providing such service. The Special Servicer
shall, as to each Specially Serviced Mortgage Loan and REO Property, promptly
deliver to the Master Servicer a copy of each document or instrument added to
the related Servicing File, and the Master Servicer shall in no way be in
default under this Section 3.19(a) solely by reason of the Special Servicer's
failure to do so.
In connection with providing access to or copies of the items described in
the preceding paragraph, the Master Servicer may require, unless the Depositor
directs otherwise, (a) in the case of Certificate Owners, a written confirmation
executed by the requesting Person, in form reasonably satisfactory to the Master
Servicer, generally to the effect that such Person is a beneficial holder of
Certificates and will otherwise keep such information confidential and (b) in
the case of a prospective purchaser, confirmation executed by the requesting
Person generally to the effect that such Person is a prospective purchaser of a
Certificate or an interest therein, is requesting the information for use in
evaluating a possible investment in Certificates and will otherwise keep such
information confidential. All Certificateholders, by the acceptance of their
Certificates, shall be deemed to have agreed to keep such information
confidential, except to the extent that the Depositor grants written permission
to the contrary. The Master Servicer shall not be liable for the dissemination
of information in accordance with this Section 3.19(a).
(b) Within 30 days (or within such longer period as the Master Servicer or
the Special Servicer, as applicable, is (as certified thereby to the Trustee in
writing) diligently and in good faith proceeding to obtain the Appraisal
referred to below) after the earliest of (i) the date on which any Mortgage Loan
becomes a Modified Mortgage Loan, (ii) the 90th day following the occurrence of
any uncured delinquency in Monthly Payments with respect to any Mortgage Loan,
(iii) the date on which a receiver is appointed in respect of the Mortgaged
Property securing any Mortgage Loan, (iv) the date on which the Mortgagor under
any Mortgage Loan becomes the subject of bankruptcy or insolvency proceedings,
and (v) the date on which the Mortgaged Property securing any Mortgage Loan
becomes an REO Property (each such Mortgage Loan and any related REO Loan, until
it ceases to be such in accordance with the following paragraph, a "Required
Appraisal Loan"), the Master Servicer or Special Servicer, as applicable, shall
obtain an Appraisal of the related Mortgaged Property; unless an Appraisal
thereof had previously been obtained within the prior twelve months. The cost of
such Appraisal shall be advanced by the Master Servicer, subject to its being
entitled to reimbursement therefor as a Servicing Advance as provided in Section
3.05(a), such Advance to be made at the direction of the Special Servicer when
the Appraisal is obtained by the Special Servicer.
With respect to each Required Appraisal Loan (unless such loan has become a
Corrected Mortgage Loan and has remained current for twelve consecutive Monthly
Payments, and no other Servicing Transfer Event has occurred with respect
thereto during such twelve months, in which case it will cease to be a Required
Appraisal Loan), the Special Servicer shall, within 30 days of each anniversary
of such loan's becoming a Required Appraisal Loan, order an update of the prior
Appraisal (the cost of which shall be advanced by the Master Servicer as a
Servicing Advance at the direction of the Special Servicer, subject to the
Master Servicer's right to reimbursement as provided in Section 3.05(a)). Based
upon such Appraisal, the Special Servicer shall redetermine and report to the
Trustee the Appraisal Reduction Amount, if any, with respect to such loan.
(c) The Master Servicer and the Special Servicer shall each deliver to the
other and to the Trustee (for inclusion in the Mortgage File) and the Rating
Agencies copies of all Appraisals, environmental reports and engineering reports
(or, in each case, updates thereof) obtained with respect to any Mortgaged
Property or REO Property.
(d) No more frequently than once per calendar month, the Special Servicer
may require the Master Servicer, and the Master Servicer shall be obligated, to
reimburse the Special Servicer for any Servicing Advances made by the Special
Servicer, but not previously reimbursed (whether pursuant to Section 3.05(a),
this Section 3.19(d) or otherwise) to the Special Servicer, and to pay the
Special Servicer interest thereon at the Reimbursement Rate from the date made
to, but not including, the date of reimbursement. Such reimbursement and any
accompanying payment of interest shall be made within ten (10) days of the
request therefor by wire transfer of immediately available funds to an account
designated by the Special Servicer. Upon the Master Servicer's reimbursement to
the Special Servicer of any Servicing Advance and payment to the Special
Servicer of interest thereon, all in accordance with this Section 3.19(d), the
Master Servicer shall for all purposes of this Agreement be deemed to have made
such Servicing Advance at the same time as the Special Servicer originally made
such Advance, and accordingly, the Master Servicer shall be entitled to
reimbursement for such Advance, together with Advance Interest thereon, at the
same time, in the same manner and to the same extent as the Master Servicer
would otherwise have been entitled if it had actually made such Servicing
Advance.
Notwithstanding anything to the contrary contained in this Agreement, if
the Special Servicer (i) is required under any other provision of this Agreement
to direct the Master Servicer to make a Servicing Advance or (ii) is otherwise
aware a reasonable period in advance that it is reasonably likely that the
Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) preceding), and shall use reasonable efforts to (in the case of
clause (ii) preceding), request that the Master Servicer make such Servicing
Advance, such request to be made in writing and in a timely manner that does not
materially and adversely affect the interests of any Certificateholder and at
least five Business Days prior to the date on which failure to make such
Servicing Advance would (with notice from the Trustee regardless of whether such
notice is actually received) constitute an Event of Default pursuant to Section
7.01(a)(v); provided, however, that the Special Servicer shall have an
obligation to make any Emergency Advance or any other Servicing Advance with
respect to which it would, under the circumstances, be inconsistent with the
Servicing Standard for the Special Servicer to request that the Master Servicer
make such Servicing Advance (in lieu of making such Servicing Advance itself and
seeking reimbursement therefor as provided herein); and provided, further, that
the Special Servicer shall, with respect to Specially Serviced Mortgage Loans
and REO Properties, make any Servicing Advance that it fails to timely request
the Master Servicer to make. The Master Servicer shall have the obligation to
make any such Servicing Advance that it is requested by the Special Servicer to
make within five Business Days of the Master Servicer's receipt of such request.
Subject to the foregoing, the Special Servicer shall be relieved of any
obligations with respect to a Servicing Advance that it timely requests the
Master Servicer to make (regardless of whether or not the Master Servicer shall
make such Servicing Advance), other than an Emergency Advance or any other
Servicing Advance with respect to which it would, under the circumstances, be
inconsistent with the Servicing Standard for the Special Servicer to request
that the Master Servicer make such Servicing Advance (in lieu of making such
Servicing Advance itself and seeking reimbursement therefor as provided herein).
The Master Servicer shall be entitled to reimbursement for any Servicing Advance
made by it at the direction of the Special Servicer, together with Advance
Interest thereon, at the same time, in the same manner and to the same extent as
the Master Servicer is entitled with respect to any other Servicing Advance made
thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d) or any
other provision of this Agreement to the contrary, the Master Servicer shall not
be required to reimburse the Special Servicer for, or make at the Special
Servicer's direction, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to reimburse it for or make hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer and the Trustee in writing of such
determination. Such notice shall not obligate the Special Servicer to make such
Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit in the
Distribution Account on each Master Servicer Remittance Date, without any right
of reimbursement therefor, an amount equal to the lesser of (i) the aggregate of
all Prepayment Interest Shortfalls incurred in connection with Principal
Prepayments received in respect of the Mortgage Pool during the most recently
ended Collection Period, and (ii) that portion of its aggregate Master Servicing
Fee for the related Collection Period that is, in the case of each and every
Mortgage Loan and REO Loan, calculated at 0.040% per annum, together with the
total amount of additional master servicing compensation to which the Master
Servicer is entitled under Section 3.11(b) and that was received during such
Collection Period.
(f) Except under the same circumstances that it would be permitted to waive
a prepayment lockout provision in the subject Mortgage Loan pursuant to Section
3.20(a), neither the Master Servicer nor the Special Servicer shall consent to
any Mortgagor's prepaying its Mortgage Loan, partially or in its entirety, if
the Mortgagor would be prohibited from doing so without such consent.
(g) The Master Servicer shall not exercise any discretionary right it has
with respect to any Mortgage Loan pursuant to the related Mortgage Note or
Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Mortgage Loan except in the case of a default
thereunder.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer and the Special Servicer each may, consistent with
the Servicing Standard, agree to any modification, waiver or amendment of any
term of, forgive or defer the payment of interest (including, without
limitation, Default Interest and Additional Interest) on and principal of,
forgive late payment charges and Prepayment Premiums on, permit the release,
addition or substitution of collateral securing, and/or permit the release of
the Mortgagor on or any guarantor of any Mortgage Loan it is required to service
and administer hereunder, without the consent of the Trustee or any
Certificateholder, subject, however, to each of the following limitations,
conditions and restrictions:
(i) other than as expressly provided in Section 3.02 (with respect
to Default Charges), Section 3.08 (with respect to due-on-sale and
due-on-encumbrance clauses) and Section 3.20(f) (with respect to
Additional Interest), the Master Servicer shall not agree to any
modification, waiver or amendment of any term of, or take any of the
other acts referenced in this Section 3.20(a) with respect to, any
Mortgage Loan it is required to service and administer hereunder that
would affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder or, in the Master
Servicer's good faith and reasonable judgment, materially impair the
security for such Mortgage Loan or reduce the likelihood of timely
payment of amounts due thereon; the Special Servicer may, however,
agree to any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.20(a) with respect
to, a Specially Serviced Mortgage Loan that would have any such effect,
but only if a material default on such Mortgage Loan has occurred or,
in the Special Servicer's reasonable and good faith judgment, a default
in respect of payment on such Mortgage Loan is reasonably foreseeable,
and such modification, waiver, amendment or other action is reasonably
likely to produce a greater recovery to Certificateholders (as a
collective whole) on a present value basis (the relevant discounting of
anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate
(or, in the case of a Hyper-Amortization Loan after its Anticipated
Repayment Date, the related Net Mortgage Rate in effect immediately
prior to such Anticipated Repayment Date)), than would liquidation;
(ii) the Special Servicer may not, in connection with any
particular extension, extend the maturity date of any Specially
Serviced Mortgage Loan beyond _________ ____, 20__;
(iii) neither the Master Servicer nor the Special Servicer shall
make or permit any modification, waiver or amendment of any term of, or
take any of the other acts referenced in this Section 3.20(a) or in
Section 3.08 with respect to, any Mortgage Loan that would (A) cause
REMIC I or REMIC II to fail to qualify as a REMIC under the Code or
result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day of either such REMIC under the
REMIC Provisions or (B) cause any Mortgage Loan to cease to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (neither the Master Servicer nor the Special Servicer shall be
liable for decisions made under this subsection which were made in good
faith and, unless it would constitute bad faith or negligence to do so,
each of the Master Servicer and the Special Servicer may rely on
Opinions of Counsel in making such decisions);
(iv) neither the Master Servicer nor the Special Servicer shall
permit any Mortgagor to add or substitute any collateral for an
outstanding Mortgage Loan, which additional or substitute collateral
constitutes real property, unless the Special Servicer shall have first
determined in accordance with the Servicing Standard, based upon a
Phase I Environmental Assessment (and such additional environmental
testing as the Special Servicer deems necessary and appropriate)
prepared by an Independent Person who regularly conducts Phase I
Environmental Assessments (and such additional environmental testing),
at the expense of the Mortgagor, that such additional or substitute
collateral is in compliance with applicable environmental laws and
regulations and that there are no circumstances or conditions present
with respect to such new collateral relating to the use, management or
disposal of any Hazardous Materials for which investigation, testing,
monitoring, containment, clean-up or remediation would be required
under any then applicable environmental laws and/or regulations; and
(v) neither the Master Servicer nor the Special Servicer shall
release any collateral securing an outstanding Mortgage Loan
(including, without limitation, as part of a substitution of
collateral), except in connection with a payment in full or, subject to
the other provisions of this Section 3.20, a discounted payoff of such
Mortgage Loan, or except as provided in Section 3.09(d), or except
where the Rating Agencies have been notified in writing and (A) either
(1) the use of the collateral to be released will not, in the Master
Servicer's or Special Servicer's, as the case may be, good faith and
reasonable judgment, materially and adversely affect the Net Operating
Income being generated by or the use of the related Mortgaged Property,
or (2) there is a corresponding principal paydown of such Mortgage Loan
in an amount at least equal to, or a delivery of substitute collateral
with an appraised value at least equal to, the appraised value of the
collateral to be released, (B) the remaining Mortgaged Property and any
substitute collateral is, in the Master Servicer's or Special
Servicer's, as the case may be, good faith and reasonable judgment,
adequate security for the remaining Mortgage Loan and (C) if the
collateral that is being released has an Appraised Value in excess of
$3,000,000, __________ has confirmed in writing that such release
and/or substitution would not result in the downgrade, qualification or
withdrawal of the rating then assigned by __________ to any Class of
Certificates;
provided that (1) the limitations, conditions and restrictions set forth in
clauses (i) through (v) above shall not apply to any of the acts referenced in
this Section 3.20(a) in respect of any Mortgage Loan that is expressly provided
for, or that the related Mortgagor is permitted to effect without the
mortgagee's consent, in any event under the terms of such Mortgage Loan in
effect on the Closing Date, and (2) notwithstanding clauses (i) through (v)
above, neither the Master Servicer nor the Special Servicer shall be required to
oppose the confirmation of a plan in any bankruptcy or similar proceeding
involving a Mortgagor if in their reasonable and good faith judgment such
opposition would not ultimately prevent the confirmation of such plan or one
substantially similar.
(b) The Special Servicer shall have no liability to the Trust, the
Certificateholders or any other Person if its analysis and determination that
the modification, waiver, amendment or other action contemplated by Section
3.20(a) is reasonably likely to produce a greater recovery to Certificateholders
on a present value basis than would liquidation, should prove to be wrong or
incorrect, so long as the analysis and determination were made on a reasonable
basis in good faith by the Special Servicer and the Special Servicer has
complied with the Servicing Standard in ascertaining the pertinent facts. Each
such determination shall be evidenced by an Officer's Certificate to such effect
to be delivered by the Special Servicer to the Trustee.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a),
shall not, for purposes hereof, including, without limitation, calculating
monthly distributions to Certificateholders, be added to the unpaid principal
balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer and the Special Servicer each may, as a condition
to its granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing (except with respect to any waiver
pursuant to subsection (f) below), the granting of which is within the Master
Servicer's or Special Servicer's, as the case may be, discretion pursuant to the
terms of the instruments evidencing or securing the related Mortgage Loan and is
permitted by the terms of this Agreement, require that such Mortgagor pay to it,
as additional servicing compensation, a reasonable and customary fee (not to
exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for
the additional services performed in connection with such request, together with
any related costs and expenses incurred by it.
(e) All modifications, waivers, amendments and other actions entered into
or taken in respect of the Mortgage Loans pursuant to the preceding subsections
of this Section 3.20 shall be in writing. Each of the Master Servicer and the
Special Servicer shall notify the other such party and the Trustee, in writing,
of any modification, waiver, amendment or other action entered into or taken in
respect of any Mortgage Loan pursuant to this Section 3.20 and the date thereof,
and shall deliver to the Trustee or the related Custodian for deposit in the
related Mortgage File (with a copy to the other such party), an original
counterpart of the agreement relating to such modification, waiver, amendment or
other action, promptly (and in any event within ____ Business Days) following
the execution thereof. In addition, following the execution of any modification,
waiver or amendment agreed to by the Special Servicer pursuant to Section
3.20(a) above, the Special Servicer shall deliver to the Master Servicer and the
Trustee an Officer's Certificate setting forth in reasonable detail the basis of
the determination made by it pursuant to clause (i) of Section 3.20(a).
(f) With respect to any Hyper-Amortization Loan after its Anticipated
Repayment Date, the Master Servicer shall be permitted, in its discretion, to
waive (such waiver to be in writing addressed to the related Mortgagor, with a
copy to the Trustee) all or any accrued Additional Interest if, prior to the
related maturity date, the related Mortgagor has requested the right to prepay
the Mortgage Loan in full together with all payments required by the Mortgage
Loan in connection with such prepayment except for all or a portion of accrued
Additional Interest, provided that the Master Servicer's determination to waive
the right to such accrued Additional Interest is reasonably likely to produce a
greater payment to Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate in effect
immediately prior to the related Anticipated Repayment Date) than a refusal to
waive the right to such Additional Interest. The Master Servicer will have no
liability to the Trust, the Certificateholders or any other person so long as
such determination is based on such criteria.
SECTION 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, the Master Servicer shall promptly give notice
thereof, and deliver the related Servicing File, to the Special Servicer and
shall use its best efforts to provide the Special Servicer with all information,
documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. The Master Servicer shall use its best efforts to comply with the
preceding sentence within five Business Days of the occurrence of each related
Servicing Transfer Event.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan, the Special Servicer shall promptly give notice
thereof, and return the related Servicing File, to the Master Servicer and upon
giving such notice, and returning such Servicing File, to the Master Servicer,
the Special Servicer's obligation to service such Mortgage Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan, shall terminate, and the obligations of the Master Servicer to
service and administer such Mortgage Loan shall resume.
Notwithstanding other provisions in this Agreement to the contrary, the
Master Servicer shall remain responsible for the accounting, data collection,
reporting and other basic Master Servicer administrative functions with respect
to Specially Serviced Mortgage Loans, provided that the Special Servicer shall
establish procedures for the Master Servicer as to the application of receipts
and tendered payments and shall have the exclusive responsibility for and
authority over all contacts (including billing and collection) with and notices
to Mortgagors and similar matters relating to each Specially Serviced Mortgage
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master Servicer
and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Group; provided that no Cross-Collateralized
Mortgage Loan may become a Corrected Mortgage Loan at any time that a continuing
Servicing Transfer Event exists with respect to another Cross-Collateralized
Mortgage Loan in the same Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents contemplated by the
definition of "Mortgage File" and generated while such Mortgage Loan is a
Specially Serviced Mortgage Loan, for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Mortgagor generated while such Mortgage Loan is a Specially Serviced
Mortgage Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in the
event that the Master Servicer and the Special Servicer are the same Person, all
notices, certificates, information, consents and documents required to be given
or delivered by the Master Servicer to the Special Servicer or vice versa shall
be deemed to be given or delivered, as the case may be, without the necessity of
any action on such Person's part.
SECTION 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and, with the consent of the Depositor, the Special
Servicer, may each enter into Sub-Servicing Agreements to provide for the
performance by third parties of any or all of its obligations hereunder,
provided that, in each case, the Sub-Servicing Agreement: (i) is not
inconsistent with this Agreement; (ii) expressly or effectively provides that if
the Master Servicer or Special Servicer, as the case may be, shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), any successor to the Master Servicer or the
Special Servicer, as the case may be, hereunder (including the Trustee if the
Trustee has become such successor pursuant to Section 7.02) may thereupon either
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or Special Servicer, as the
case may be, under such agreement or, subject to the provisions of Section
3.22(d), terminate such rights and obligations, in either case without payment
of any fee except as set forth in Section 3.22(d); (iii) in the case of a
Sub-Servicing Agreement entered into by the Master Servicer, expressly or
effectively provides that such agreement shall be suspended with respect to any
Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a
Specially Serviced Mortgage Loan (but only until such time as such Mortgage Loan
becomes a Corrected Mortgage Loan) and, except as set forth in Section 3.22(d),
the Sub-Servicer shall not receive or accrue an entitlement to any sub-servicing
compensation in respect of a Specially Serviced Mortgage Loan or an REO Loan;
(iv) in the case of a Sub-Servicing Agreement entered into by the Special
Servicer, relates only to Specially Serviced Mortgage Loans or REO Properties
and expressly or effectively provides that such agreement shall terminate with
respect to any such Mortgage Loan that becomes a Corrected Mortgage Loan; (v) in
the case of a Sub-Servicing Agreement entered into by the Master Servicer,
provides that the related Sub-Servicer shall comply with all reasonable requests
for additional information made by the Master Servicer and, further, provides
that the failure of the related Sub-Servicer to furnish the Master Servicer on
timely basis with any required reports, statements or other information,
including without limitation, the reports referred to in Section 3.12, either
(A) shall permit the Master Servicer to make necessary inquiries of the related
Borrower directly or (B) shall (subject to a cure period not to exceed ______
days) constitute an event of default thereunder for which the Master Servicer
may terminate such Sub-Servicer without payment of any termination fee (it being
understood that notwithstanding anything to the contrary in this clause (v), the
obligations of a Sub-Servicer in respect of the second sentence of Section
3.12(b) hereof may be limited to the provision of reports as agreed between the
Master Servicer and such Sub-Servicer and response to reasonable inquiries from
the Master Servicer with respect thereto); and (vi) in the case of a
Sub-Servicing Agreement entered into by the Master Servicer subsequent to the
Closing Date, is approved by the Majority Certificateholder of the Controlling
Class and the Special Servicer (such approval not to be unreasonably withheld);
[provided that, without in any way limiting the obligations of the Master
Servicer hereunder or its liability or responsibility for the performance of
such obligations, the requirements of items (i) through (v) of this sentence
shall not (for the first six months following the Closing Date) apply with
respect to any Sub-Servicing Agreement to which the Master Servicer is a party
in effect on the Closing Date and covering one or more Mortgage Loans (it being
understood and agreed that the Master Servicer shall cause each such
Sub-Servicing Agreement then still in effect to satisfy such requirements by the
end of such six-month period).] References in this Agreement to actions taken or
to be taken by the Master Servicer or the Special Servicer, as the case may be,
include actions taken or to be taken by a Sub-Servicer on behalf of the Master
Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer or the Special Servicer, as the case may be, hereunder to
make Advances shall be deemed to have been advanced by the Master Servicer or
the Special Servicer, as the case may be, out of its own funds and, accordingly,
such Advances shall be recoverable by such Sub-Servicer in the same manner and
out of the same funds as if such Sub-Servicer were the Master Servicer or the
Special Servicer, as the case may be, and, for so long as they are outstanding,
such Advances shall accrue interest in accordance with Section 3.11(f) and/or
Section 4.03(d), such interest to be allocable between the Master Servicer or
the Special Servicer, as the case may be, and such Sub-Servicer as they may
agree. For purposes of this Agreement, the Master Servicer and the Special
Servicer each shall be deemed to have received any payment when a Sub-Servicer
retained by it receives such payment. The Master Servicer and the Special
Servicer each shall notify the other such party, the Trustee and the Depositor
in writing promptly of the appointment by it of any Sub-Servicer, and shall
deliver to the Trustee copies of all Sub-Servicing Agreements, and any
amendments thereto and modifications thereof, entered into by it promptly upon
its execution and delivery of such documents; provided that the foregoing
requirements set forth in this sentence shall not apply in the case of the
Sub-Servicing Agreements in effect as of the Closing Date that are listed on
Schedule II hereto or in the case of the Sub-Servicers thereunder. Furthermore,
the Master Servicer shall not consent to the amendment or modification of any
Sub-Servicing Agreement to which it is a party without having obtained the prior
consent of the Special Servicer and the Majority Certificateholder of the
Controlling Class, which consent shall not be unreasonably withheld; provided
that no such consent of the Special Servicer or the Majority Certificateholder
of the Controlling Class shall be required with respect to any amendment or
modification of a Sub-Servicing Agreement in effect on the Closing Date and
covering one or more Mortgage Loans, if and to the extent that such modification
or amendment is effected during the first 180 days following the Closing Date in
order to correct any inconsistency between such Sub-Servicing Agreement and this
Agreement.
(b) Each Sub-Servicer [(i)] shall be authorized to transact business in the
state or states in which the Mortgaged Properties for the Mortgage Loans it is
to service are situated, if and to the extent required by applicable law, [and
(ii) shall be an approved conventional seller/servicer of multifamily mortgage
loans for ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or a HUD-Approved Servicer.]
(c) The Master Servicer and the Special Servicer, for the benefit of the
Trustee and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust) each monitor the performance and enforce the
obligations of its Sub-Servicers under the related Sub-Servicing Agreements.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the terms of this Agreement, and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer or the Special Servicer, as the case may
be, in its good faith business judgment, would require were it the owner of the
Mortgage Loans. Promptly upon becoming aware of a default under any
Sub-Servicing Agreement to which it is a party, the Master Servicer or the
Special Servicer, as the case may be, shall notify the other such party, the
Trustee and the Certificateholders of the Controlling Class.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II hereto, the initial Master Servicer
in its [partnership] capacity hereby agrees that it shall not, in its capacity
as Master Servicer, terminate any Sub-Servicer thereunder without cause. In the
event of the resignation, removal or other termination of the initial Master
Servicer (or any successor Master Servicer) hereunder for any reason, the
successor to the initial Master Servicer (or to such successor Master Servicer)
shall elect, with respect to any Sub-Servicing Agreement existing at the time of
such termination (i) to assume the rights and obligations of the predecessor
Master Servicer under such Sub-Servicing Agreement and continue the
sub-servicing arrangements thereunder on the same terms (including without
limitation the obligation to pay the same sub-servicing fee), (ii) to enter into
a new Sub-Servicing Agreement with such Sub-Servicer and on such terms as the
new Master Servicer and such Sub-Servicer shall mutually agree (it being
understood that such Sub-Servicer is under no obligation to accept any such new
Sub-Servicing Agreement or to enter into or continue negotiations with the new
Master Servicer) or (iii) to terminate such Sub-Servicing Agreement without
cause, provided that no Sub-Servicer may be terminated without cause unless it
receives Sub-Servicer Termination Compensation. For purposes hereof, a
Sub-Servicer shall receive "Sub-Servicer Termination Compensation" if any
successor Master Servicer elects to terminate such Sub-Servicer without cause,
in which case either of the following shall occur: (i) such successor Master
Servicer shall pay to such Sub-Servicer a fee (a "Sub-Servicer Termination Fee")
in an amount equal to two times the product of (A) the Primary Servicing Fee
Rate in effect under such Sub-Servicing Agreement at the time of such
Sub-Servicer's termination and (B) the then-current outstanding principal
balance of the Mortgage Loans serviced by such Sub-Servicer or (ii) such
successor Master Servicer shall agree to pay such Sub-Servicer an interest-only
strip (the "Termination Strip") out of its related Master Servicing Fees for
each Mortgage Loan serviced by such Sub-Servicer at the time of such
Sub-Servicer's termination (such strip to be calculated in the same manner as
the related Master Servicing Fees, but at a per annum rate equal to the
applicable Primary Servicing Fee Rate minus 0.___%). Any subsequent successor
Master Servicer shall be obligated to pay any such Termination Strip agreed to
by a predecessor Master Servicer. Nothing in the foregoing provisions of this
Section 3.22(d) shall limit the ability of the initial or a successor Master
Servicer to terminate a Sub-Servicer at any time for cause; provided, however,
that the parties hereto understand and agree that the refusal or failure of a
Sub-Servicer to enter into or continue negotiations with a successor Master
Servicer concerning a new Sub-Servicing Agreement shall not constitute cause for
termination. It shall be the corporate obligation (not reimbursable by the Trust
or any of the other parties to this Agreement) of the Person, who as successor
Master Servicer, terminates any Sub-Servicer without cause, and of its
successors and assigns in such capacity (to the extent contemplated by the
second preceding sentence), to pay Sub-Servicer Termination Compensation to such
terminated Sub-Servicer. References in this Section 3.22(d) to Master Servicer,
successor Master Servicer or subsequent successor Master Servicer shall mean the
Trustee, if it is then Master Servicer, successor Master Servicer or subsequent
Master Servicer pursuant to the operation of Section 7.02.
(e) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer and
the Special Servicer shall each remain obligated and liable to the Trustee and
the Certificateholders for the performance of its obligations and duties under
this Agreement in accordance with the provisions hereof to the same extent and
under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible.
SECTION 3.23 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.
The Majority Certificateholder of the Controlling Class may at any time and
from time to time replace any existing Special Servicer or any Special Servicer
that has resigned or otherwise ceased to serve as Special Servicer. Such
Majority Certificateholder shall so designate a Person to so serve by the
delivery to the Trustee of a written notice stating such designation, subject to
the approval of the Trustee, which approval shall not be unreasonably withheld.
The Trustee shall, promptly after receiving any such notice, so notify the
Rating Agencies. If the Trustee approves the designated Person (based upon the
servicing qualifications and financial condition of such designated Person) as a
replacement Special Servicer, which approval shall not be unreasonably withheld,
the designated Person shall become the Special Servicer as of the date the
Trustee shall have received: (i) written confirmation from each Rating Agency
stating that if the designated Person were to serve as Special Servicer
hereunder, none of the then-current ratings assigned by such Rating Agency to
the respective Classes of the Certificates would be qualified, downgraded or
withdrawn as a result thereof; (ii) a written acceptance of all obligations of
the Special Servicer under this Agreement, executed by the designated Person;
and (iii) an Opinion of Counsel (at the expense of the Person designated to
become the Special Servicer or at the expense of the Majority Certificateholder
that made the designation) to the effect that the designation of such Person to
serve as Special Servicer is in compliance with this Section 3.23, that upon the
execution and delivery of the written acceptance referred to in the immediately
preceding clause (ii), the designated Person shall be bound by the terms of this
Agreement and that this Agreement shall be enforceable against the designated
Person in accordance with its terms. The existing Special Servicer shall be
deemed to have resigned simultaneously with such designated Person's becoming
the Special Servicer hereunder; provided, however, that (i) the terminated
Special Servicer shall continue to be entitled to receive all amounts accrued or
owing to it under this Agreement on or prior to the effective date of such
resignation, whether in respect of Servicing Advances or otherwise, (ii) if it
was terminated without cause, it shall be entitled to a portion of certain
Workout Fees thereafter received on the Corrected Mortgage Loans (but only if
and to the extent permitted by Section 3.11(c)), and (iii) it and its directors,
officers, employees and agents shall continue to be entitled to the benefits of
Section 6.03, notwithstanding any such resignation. Such terminated Special
Servicer shall cooperate with the Trustee and the replacement Special Servicer
in effecting the termination of its responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
replacement Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the terminated Special
Servicer to the REO Account or delivered to the Master Servicer or that are
thereafter received by the terminated Special Servicer with respect to Specially
Serviced Mortgage Loans and REO Properties.
SECTION 3.24 Confidentiality.
The Master Servicer and the Special Servicer shall each keep confidential
and shall not disclose to any Person other than each other, the Depositor, the
Trustee and the Rating Agencies, without the related Sub-Servicer's prior
written consent, any information which it obtains in its capacity as Master
Servicer or Special Servicer with regard to the Sub-Servicer (other than the
name of the Sub-Servicer) or the Mortgage Loans or any related Mortgagor
including, without limitation, credit information with respect to any such
Mortgagor (collectively, "Confidential Information"), except (i) to the extent
that it is appropriate for the Master Servicer to do so in working with legal
counsel, auditors, taxing authorities or other governmental authorities, (ii) to
the extent required by this Agreement or any Sub-Servicing Agreement, (iii) to
the extent such information is otherwise publicly available, (iv) to the extent
such disclosure is required by law or (v) to the extent such information is
required to be delivered to third parties (including, without limitation,
property inspectors, tax service companies, insurance carriers, and data systems
vendors) in connection with the performance of the Master Servicer's or the
Special Servicer's obligations hereunder. For purposes of this paragraph, the
terms "Master Servicer" and "Special Servicer" shall mean the divisions or
departments of such corporate entities involved in providing services hereunder
and their respective officers, directors and employees, and shall not include
any other divisions or departments, or any Affiliates, of the Master Servicer or
Special Servicer (including without limitation any investor in any of the
Certificates and any such division, department or Affiliate engaged in the
origination of, or investment in, commercial or multifamily mortgage loans), all
of which shall be regarded as Persons not entitled to Confidential Information.
SECTION 3.25 No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall solicit or
permit any Affiliate to solicit, either directly or indirectly, prepayments from
any Mortgagors under the Mortgage Loans; provided however, that the foregoing
restriction shall not be interpreted to prohibit such solicitation by a division
or department of, or an Affiliate of, the Master Servicer or the Special
Servicer if such solicitation occurs incidentally in the normal course of
business and such solicitation is not conducted, in whole or in part, (i) by a
Person engaged at any time in activities relating to the servicing of Mortgage
Loans or (ii) based upon or otherwise with the benefit of any information
obtained by or through the Master Servicer or Special Servicer or from
documentation relating to the Certificates, including without limitation any
listing of the Mortgage Loans or related Mortgagors or Mortgaged Properties.
Each Sub-Servicing Agreement shall contain a provision identical to the
foregoing with respect to the related Sub-Servicer.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01 Distributions on the Certificates.
(a) On each Distribution Date, the Trustee shall apply amounts on deposit
in the Distribution Account, in each case to the extent of the remaining portion
of the Available Distribution Amount, in the following order of priority:
(i) to distributions of interest to the Holders of the Class A-1
Certificates, the Holders of the Class A-2 Certificates and the Holders
of the Class X Certificates, pro rata in accordance with the respective
amounts of Distributable Certificate Interest payable in respect of
such Classes of Certificates described in this clause (i), in an amount
equal to all Distributable Certificate Interest in respect of each such
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(ii) to distributions of principal, first to the Holders of the
Class A-1 Certificates and second to the Holders of the Class A-2
Certificates, in each case, in an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(iii) to distributions to the Holders of the Class A-1
Certificates and the Holders of the Class A-2 Certificates, pro rata in
accordance with the respective amounts of previously allocated Realized
Losses and Additional Trust Fund Expenses reimbursable in respect of
such Classes of Certificates described in this clause (iii), in an
amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated
to each such Class of Certificates and that remain unreimbursed
immediately prior to such Distribution Date;
(iv) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(v) if the Class Principal Balances of the Class A-1 and Class A-2
Certificates have been reduced to zero, to distributions of principal
to the Holders of the Class B Certificates, in an amount (not to exceed
the Class Principal Balance of the Class B Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
remaining Principal Distribution Amount for such Distribution Date;
(vi) to distributions to the Holders of the Class B Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated
to the Class B Certificates and that remain unreimbursed immediately
prior to such Distribution Date;
(vii) to distributions of interest to the Holders of the Class C
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(viii) if the Class Principal Balances of the Class A-1, Class A-2
and Class B Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class C Certificates, in an amount (not
to exceed the Class Principal Balance of the Class C Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution
Date;
(ix) to distributions to the Holders of the Class C Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated
to the Class C Certificates and that remain unreimbursed immediately
prior to such Distribution Date;
(x) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xi) if the Class Principal Balances of the Class A-1, Class A-2,
Class B and Class C Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class D Certificates,
in an amount (not to exceed the Class Principal Balance of the Class D
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xii) to distributions to the Holders of the Class D Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated
to the Class D Certificates and that remain unreimbursed immediately
prior to such Distribution Date;
(xiii) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xiv) if the Class Principal Balances of the Class A-1, Class A-2,
Class B, Class C and Class D Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class E Certificates,
in an amount (not to exceed the Class Principal Balance of the Class E
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xv) to distributions to the Holders of the Class E Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated
to the Class E Certificates and that remain unreimbursed immediately
prior to such Distribution Date;
(xvi) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xvii) if the Class Principal Balances of the Class A-1, Class
A-2, Class B, Class C, Class D and Class E Certificates have been
reduced to zero, to distributions of principal to the Holders of the
Class F Certificates, in an amount (not to exceed the Class Principal
Balance of the Class F Certificates outstanding immediately prior to
such Distribution Date) equal to the entire remaining Principal
Distribution Amount for such Distribution Date;
(xviii) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class F Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xix) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xx) if the Class Principal Balances of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E and Class F Certificates have been
reduced to zero, to distributions of principal to the Holders of the
Class G Certificates, in an amount (not to exceed the Class Principal
Balance of the Class G Certificates outstanding immediately prior to
such Distribution Date) equal to the entire remaining Principal
Distribution Amount for such Distribution Date;
(xxi) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated
to the Class G Certificates and that remain unreimbursed immediately
prior to such Distribution Date;
(xxii) to distributions of interest to the Holders of the Class H
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxiii) if the Class Principal Balances of the Class A-1, Class
A-2, Class B, Class C, Class D, Class E, Class F and Class G
Certificates have been reduced to zero, to distributions of principal
to the Holders of the Class H Certificates, in an amount (not to exceed
the Class Principal Balance of the Class H Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
remaining Principal Distribution Amount for such Distribution Date;
(xxiv) to distributions to the Holders of the Class H
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class H Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxv) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxvi) if the Class Principal Balances of the Class A-1, Class
A-2, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to distributions of principal
to the Holders of the Class J Certificates, in an amount (not to exceed
the Class Principal Balance of the Class J Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
remaining Principal Distribution Amount for such Distribution Date;
(xxvii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class J Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxviii) to distributions of interest to the Holders of the Class
K Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxix) if the Class Principal Balances of the Class A-1, Class
A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H and
Class J Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class K Certificates, in an amount (not
to exceed the Class Principal Balance of the Class K Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution
Date;
(xxx) to distributions to the Holders of the Class K Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated
to the Class K Certificates and that remain unreimbursed immediately
prior to such Distribution Date; and
(xxxi) to distributions to the Holders of the Class R-I
Certificates, in an amount equal to the balance, if any, of the
Available Distribution Amount for such Distribution Date remaining
after the distributions to be made on such Distribution Date pursuant
to clauses (i) through (xxx) above;
provided that, on each Distribution Date coinciding with or following the Senior
Principal Distribution Cross-Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
above, will be so made to the Holders of the respective Classes of Class A
Certificates, subject to available funds, up to an amount equal to, and pro rata
as among such Classes in accordance with, the respective then outstanding Class
Principal Balances of such Classes of Certificates, and without regard to the
Principal Distribution Amount for such date; and provided, further, that, on the
Final Distribution Date, the payments of principal to be made pursuant to any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi) and (xxix) above
with respect to any Class of Sequential Pay Certificates, will be so made to the
Holders thereof, subject to available funds, up to an amount equal to the entire
then outstanding Class Principal Balance of such Class of Certificates, and
without regard to the Principal Distribution Amount for such date. References to
"remaining Principal Distribution Amount" in clause (ii) above, in connection
with payments of principal to be made to the Holders of any Class of Class A
Certificates, shall be to the Principal Distribution Amount for such
Distribution Date, net of any distributions of principal made in respect thereof
to the Holders of each other Class of Class A Certificates, if any, that
pursuant to clause (ii) above has an earlier right to payment with respect
thereto. References to "remaining Principal Distribution Amount" in any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi) and (xxix)
above, in connection with the payments of principal to be made to the Holders of
any Class of Sequential Pay Certificates, shall be to the Principal Distribution
Amount for such Distribution Date, net of any payments of principal made in
respect thereof to the Holders of each other Class of Sequential Pay
Certificates that has a higher Payment Priority.
Any Prepayment Premium (whether described in the related Mortgage Loan
documents as a fixed prepayment premium or a yield maintenance amount) actually
collected with respect to a Mortgage Loan or REO Loan during any particular
Collection Period will be distributed on the related Distribution Date as
follows:
(i) first, to the Holders of the Class X Certificates and the
Holders of the respective Class or Classes of Sequential Pay
Certificates then entitled to distributions of principal on such
Distribution Date, up to an amount equal to the corresponding PV Yield
Loss Amount (as defined below) for each such Class of Certificates, pro
rata in accordance with their respective entitlements; and
(ii) then, to the extent of any portion of such Prepayment Premium
remaining following the distributions described in the preceding clause
(i), to the Holders of the Class X Certificates.
The "PV Yield Loss Amount" for any Distribution Date shall mean, with
respect to any Class of REMIC II Regular Certificates as to which any payment of
principal is to be applied on such Distribution Date in reduction of its Class
Principal Balance or Class Notional Amount, as the case may be, an amount equal
to the product of the applicable Annuity Factor and the applicable Lost Coupon
Amount.
For purposes of computing the PV Yield Loss Amount for any Class of REMIC
II Regular Certificates for any Distribution Date, the following definitions
shall apply:
The "Annuity Factor" for any Class of REMIC II Regular Certificates shall
be equal to the following:
-n
1-(1+T)
-------
T
where n equals either (i) one-twelfth of the number of months from such
Distribution Date to the Assumed Final Distribution Date for such Class, if the
Assumed Final Distribution Date for such Class is later than such Distribution
Date, or (ii) zero, if the Assumed Final Distribution Date for such Class
coincides with or is earlier than such Distribution Date, and T equals the
Reinvestment Yield.
The "Assumed Final Distribution Date" for each Class of REMIC II Regular
Certificates is the Distribution Date in the month set forth below with respect
to such Class.
Month of Assumed Final
Class Distribution Date
----- -----------------
Class A-1 __________, 20__
Class A-2 __________, 20__
Class X __________, 20__
Class B __________, 20__
Class C __________, 20__
Class D __________, 20__
Class E __________, 20__
Class F __________, 20__
Class G __________, 20__
Class H __________, 20__
Class J __________, 20__
Class K __________, 20__
The "Lost Coupon Amount" shall mean: (a) with respect to any Class of
Sequential Pay Certificates as to which a payment of principal is to be applied
on such Distribution Date in reduction of its Class Principal Balance, the
product of (x) the amount, if any, by which the Pass-Through Rate for such Class
exceeds the applicable Reinvestment Yield and (y) the aggregate amount of
principal paid to such Class in reduction of its Class Principal Balance on such
Distribution Date; and (b) with respect to the Class X Certificates, the product
of (x) the Pass-Through Rate applicable to such Class for such Distribution Date
and (y) the aggregate amount of the reduction of its Class Notional Amount on
such Distribution Date.
The "Reinvestment Yield" for any Class of REMIC II Regular Certificates and
any Distribution Date shall be a rate determined by the Trustee, in good faith,
equal to the average yield for "This Week" as most recently reported by the
Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) for U.S.
Treasury securities with a maturity coterminous with the Assumed Final
Distribution Date for such Class. If there is no U.S. Treasury security listed
with a maturity coterminous with the Assumed Final Distribution Date for such
Class, then the Reinvestment Yield shall be a rate determined by the Trustee, in
good faith, equal to the interpolated yield to maturity of U.S. Treasury
securities with maturities next longer and shorter than such remaining term to
maturity (such interpolated yield to be rounded to the nearest whole multiple of
1/100 of 1% per annum, if the interpolated yield is not such a multiple). In the
event the yields of U.S. Treasury securities are no longer published in Federal
Reserve Statistical Release H.15(519), the Trustee shall select a comparable
publication to determine the Reinvestment Yield.
(b) All distributions made with respect to each Class on each Distribution
Date shall be allocated pro rata among the outstanding Certificates in such
Class based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions [no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates),] or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. The final distribution on each Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to such Certificate) will be made in like
manner, but only upon presentation and surrender of such Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution. Any distribution that is to be
made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Registrar or to any other address of
which the Trustee was subsequently notified in writing.
(c) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(d) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of their Certificates, and all rights and
interests of the Certificateholders in and to such distributions, shall be as
set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts properly previously
distributed on the Certificates. Distributions in reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated to a Class of
Certificates shall not constitute distributions of principal and shall not
result in a reduction of the related Class Principal Balance.
(e) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall, as
soon as practicable in the month in which such Distribution Date occurs, mail to
each Holder of such Class of Certificates as of the date of mailing a notice to
the effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date
but only upon presentation and surrender of such Certificates at the
Corporate Trust Office or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(e) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(e). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute to the Class
R-II Certificateholders all unclaimed funds and other assets which remain
subject hereto.
(f) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders.
SECTION 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer.
(a) On each Distribution Date, the Trustee shall forward by mail to each
Holder (and, if it shall have certified to the Trustee as to its Ownership
Interest in a Class of Book-Entry Certificates, each Certificate Owner) of the
REMIC II Regular Certificates and to the Rating Agencies a statement (a
"Distribution Date Statement"), substantially in the form contemplated on [pages
_______ through __________] of the Prospectus Supplement, as to the
distributions made on such Distribution Date setting forth:
(i) the amount of the distribution, if any, on such Distribution Date
to the Holders of each Class of REMIC II Regular Certificates in
reduction of the Class Principal Balance thereof;
(ii) the amount of the distribution, if any, on such Distribution Date
to the Holders of each Class of REMIC II Regular Certificates
allocable to Distributable Certificate Interest and the amount of the
distribution, if any, on such Distribution Date to the Holders of each
Class of REMIC II Regular Certificates allocable to Prepayment
Premiums;
(iii) the Available Distribution Amount for such Distribution Date;
(iv) the aggregate amount of P&I Advances made in respect of the
immediately preceding Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(vi) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Pool as of the end of the Collection Period for the
immediately preceding Distribution Date;
(vii) as of the close of business on the last day of the most recently
ended calendar month, the number, aggregate unpaid principal balance
and specific identification (by loan number) of Mortgage Loans (A)
delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or
more days, and (D) as to which foreclosure proceedings have been
commenced;
(viii) the book value (within the meaning of 12 C.F.R. ss.571.13 or
comparable provision), property type and address of any REO Property
included in the Trust Fund as of the end of the Collection Period for
such Distribution Date and the unpaid principal balance and Assumed
Monthly Payment of the related REO Loan;
(ix) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of REMIC II Regular Certificates for
such Distribution Date;
(x) the aggregate amount of Distributable Certificate Interest payable
in respect of each Class of REMIC II Regular Certificates on such
Distribution Date, including, without limitation, any Distributable
Certificate Interest remaining unpaid from prior Distribution Dates;
(xi) any unpaid Distributable Certificate Interest in respect of each
Class of REMIC II Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xii) the Pass-Through Rate for each Class of REMIC II Regular
Certificates for such Distribution Date;
(xiii) the Principal Distribution Amount for such Distribution Date,
separately identifying the respective components of such amount;
(xiv) the aggregate of all Realized Losses incurred during the related
Collection Period and, aggregated by type, all Additional Trust Fund
Expenses incurred during the related Collection Period;
(xv) the Class Principal Balance or Class Notional Amount, as the case
may be, of each Class of REMIC II Regular Certificates outstanding
immediately before and immediately after such Distribution Date,
separately identifying any reduction therein due to the allocation of
Realized Losses and Additional Trust Fund Expenses on such
Distribution Date;
(xvi) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that remain unallocated following such Distribution Date;
(xvii) the Certificate Factor for each Class of REMIC II Regular
Certificates immediately following such Distribution Date;
(xviii) the aggregate amount of servicing compensation paid to the
Master Servicer, the Special Servicer, and their respective
Sub-Servicers, collectively and separately, during the related
Collection Period (and separately identifying the portion of such
compensation paid to each such Person that constitutes Default
Charges, assumption fees and modification fees);
(xix) a brief description of any material waiver, modification or
amendment of any Mortgage Loan entered into by the Master Servicer or
Special Servicer pursuant to Section 3.20 during the related
Collection Period;
(xx) any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution
Date (or, in the case of the initial Distribution Date, since the
Closing Date); and
(xxi) such additional information, if any, as is contemplated on
[pages __________ through ______] of the Prospectus Supplement.
In the case of information furnished pursuant to clauses (i) and (ii)
above, the amounts shall be expressed as a dollar amount in the aggregate for
all Certificates of each applicable Class and per Single Certificate. Except
with respect to the Certificate Factor (required to be reported by clause (xvii)
above), financial information reported by the Trustee to the Certificateholders
pursuant to this Section 4.02 shall be expressed as a dollar amount rounded to
the nearest whole cent. Absent actual knowledge of an error therein, the Trustee
shall have no obligation to recompute, recalculate or verify any information
provided to it by the Master Servicer or Special Servicer. The calculations by
the Trustee contemplated by this Section 4.02 shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
In addition, the Trustee shall so deliver or cause to be delivered to such
Certificateholders and Certificate Owners and to the Rating Agencies, at the
same time that the Distribution Date Statement is delivered thereto, each (i)
Delinquent Loan Status Report, (ii) REO Status Report, (iii) Historical Loan
Modification Report, (iv) Special Servicer Loan Status Report, (v) Historical
Loss Report and (vi) Operating Statement Analysis (such six reports,
collectively with the Distribution Date Statement, the "Certificateholder
Reports") that has been received or prepared by the Trustee since the prior
Distribution Date. Delivery of such reports shall be in a written format and, in
the case of the Rating Agencies (upon request and to the extent reasonably
possible), through an electronic medium. The form of any Certificateholder
Report may change over time.
On each Distribution Date, the Trustee shall also deliver or cause to be
delivered to such Certificateholders and Certificate Owners and to the Rating
Agencies, a report (based on information received from the Master Servicer and
Special Servicer) containing, as and to the extent received from the Master
Servicer and Special Servicer, information regarding the Mortgage Pool as of the
close of business on the related Determination Date, which report shall contain
substantially the categories of information regarding the Mortgage Loans set
forth in Annex A to the Prospectus Supplement (calculated, where applicable, on
the basis of the most recent relevant information provided by the Mortgagors to
the Master Servicer or the Special Servicer and by the Master Servicer or the
Special Servicer, as the case may be, to the Trustee) and such information shall
be presented in a loan-by-loan and tabular format substantially similar to the
formats utilized in Annex A to the Prospectus Supplement (provided that no
information will be provided as to any repair and replacement or other cash
reserve and the only financial information to be reported on an ongoing basis
will be the actual expenses, actual revenues and actual Net Operating Income for
the respective Mortgaged Properties and a Debt Service Coverage Ratio calculated
on the basis thereof). To the extent reasonably possible, delivery of such
report to any particular Rating Agency shall be, upon request, through an
electronic medium.
On each Distribution Date, the Trustee shall forward or make available
electronically to the Depositor, to the Master Servicer, to the Special
Servicer, to the Holders of the Residual Certificates and, in the case of
reports regarding a Class of Book-Entry Certificates, to The Trepp Group (at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other address as
The Trepp Group may hereafter designate) or any other party that the Depository
may designate, a copy of the reports forwarded to the Holders of the REMIC II
Regular Certificates on such Distribution Date and a statement setting forth the
amounts, if any, actually distributed with respect to each Class of Residual
Certificates on such Distribution Date.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a REMIC II Regular Certificate a statement containing the
information as to the applicable Class set forth in clauses (i) and (ii) above
of the description of Distribution Date Statement, aggregated for such calendar
year or applicable portion thereof during which such Person was a
Certificateholder, together with such other information as the Trustee
determines to be necessary to enable Certificateholders to prepare their tax
returns for such calendar year. Such obligation of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish to the
Holders of the Class R-I and Class R-II Certificates the Form 1066 and shall
furnish their respective Schedules Q thereto at the times required by the Code
or the IRS, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Class R-I and Class R-II Certificates may reasonably request.
The Trustee shall make available via the Trustee's ASAP (Automated
Statements Accessed by Phone) System (or comparable system), to Persons with an
account number thereon, the Certificateholder Reports and a summary report of
Certificate Factors via automated facsimile. The Trustee shall make available,
upon request, to Certificateholders, Certificate Owners identified to the
Trustee in accordance with Section 5.06(b), the Depositor, NationsBanc
▇▇▇▇▇▇▇▇▇▇ Securities LLC, the Master Servicer and the Special Servicer account
numbers on the Trustee's ASAP System.
Upon the authorization of the Depositor, the Trustee shall deliver all the
reports delivered or made available pursuant to this Section 4.02(a) to the
Certificateholders and Certificate Owners to Bloomberg Financial Markets, L.P.
("Bloomberg") (for so long as Bloomberg exists) using a format and media
mutually acceptable to the Trustee and Bloomberg or shall otherwise make such
reports available, on a confidential basis, via its own electronic bulletin
board. All files on such bulletin board shall be password protected. Passwords
to each file shall be released by the Trustee, upon request, to
Certificateholders, Certificate Owners identified to the Trustee in accordance
with Section 5.06(b), the Depositor, the Rating Agencies, NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities, LLC, the Master Servicer and the Special Servicer.
(b) At or before 11:00 a.m. (New York City time) on the third Business Day
prior to the related Distribution Date, the Master Servicer shall deliver or
cause to be delivered to the Trustee and the Special Servicer, in writing and on
a computer-readable medium, in form reasonably acceptable to the Trustee,
including, without limitation, on a loan-by-loan basis, the following reports:
(1) a Delinquent Loan Status Report, (2) an REO Status Report, (3) a Historical
Loan Modification Report, (4) a Historical Loss Report, (5) the Special Servicer
Loan Status Report most recently received by the Master Servicer and (6) a
single report setting forth the information specified in clauses (i) through
(xv) below (the items specified in clause (xiii) below to be reported once per
calendar quarter, and the amounts and allocations of payments, collections, fees
and expenses with respect to Specially Serviced Mortgage Loans and REO
Properties to be based upon the report to be delivered by the Special Servicer
to the Master Servicer on the second Business Day after such Determination Date,
in the form required by Section 4.02(c) below):
(i) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to principal on or in
respect of the Mortgage Loans and any REO Loans, separately
identifying the aggregate amount of any Principal Prepayments included
therein, and (if different) the Principal Distribution Amount for the
immediately succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to (A) interest on or in
respect of the Mortgage Loans and any REO Loans and (B) Prepayment
Premiums;
(iii) the aggregate amount of any P&I Advances (specifying the
principal and interest portions thereof separately) to be made
pursuant to Section 4.03 of this Agreement that were made in respect
of the immediately preceding Distribution Date;
(iv) the amount of the Master Servicing Fees, Special Servicing Fees,
Workout Fees, Liquidation Fees and other servicing compensation with
respect to the Mortgage Pool for the Collection Period ending on such
Determination Date, specifying the items and amounts of such other
servicing compensation payable to the Master Servicer, the Special
Servicer and any Sub-Servicers retained by each;
(v) the number and aggregate unpaid principal balance as of the close
of business on the last day of the most recently ended calendar month
of Mortgage Loans in the Mortgage Pool (A) remaining outstanding, (B)
delinquent 30-59 days, (C) delinquent 60-89 days, (D) delinquent 90
days or more but not in foreclosure and (E) in foreclosure; and the
number and aggregate unpaid principal balance as of the close of
business on such Determination Date of Mortgage Loans in the Mortgage
Pool (X) as to which the related Mortgaged Property has become REO
Property during the Collection Period ending on such Determination
Date, (Y) as to which the related Mortgaged Property was REO Property
as of the end of such Collection Period and (Z) the terms of which
have been modified during such Collection Period pursuant to this
Agreement;
(vi) the loan number and the unpaid principal balance as of the close
of business on such Determination Date of each Specially Serviced
Mortgage Loan and each other Defaulted Mortgage Loan;
(vii) with respect to any REO Property that was included in the Trust
Fund as of the close of business on such Determination Date, the loan
number of the related Mortgage Loan, the book value of such REO
Property and the amount of REO Revenues and other amounts, if any,
received on such REO Property during the related Collection Period and
the portion thereof included in the Available Distribution Amount for
the immediately succeeding Distribution Date;
(viii) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the Collection Period
ending on such Determination Date, the loan number of such Mortgage
Loan and the Stated Principal Balance of such Mortgage Loan as of the
related Acquisition Date;
(ix) with respect to any Mortgage Loan or REO Property as to which a
Final Recovery Determination was made by the Master Servicer during
the Collection Period ending on such Determination Date, the loan
number of such Mortgage Loan or, in the case of an REO Property, of
the related Mortgage Loan, the amount of Liquidation Proceeds and/or
other amounts, if any, received thereon during such Collection Period
and the portion thereof included in the Available Distribution Amount
for the immediately succeeding Distribution Date, and any resulting
Realized Loss;
(x) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(xi) the aggregate amount of Realized Losses on the Mortgage Pool for
the Collection Period ending on such Determination Date (and the
portions allocable to principal and interest);
(xii) the aggregate amount of the Additional Trust Fund Expenses
(broken down by type) withdrawn from the Certificate Account during
the Collection Period ending on such Determination Date;
(xiii) to the extent provided by the related Mortgagors, information
with respect to occupancy rates for all Mortgaged Properties, sales
per square foot with respect to all retail Mortgaged Properties, and
capital expenditures and capital reserve balances with respect to all
Mortgaged Properties, in each case in the format of the Mortgage Loan
Schedule;
(xiv) such other information on a Mortgage Loan-by-Mortgage Loan or
REO Property-by-REO Property basis as the Trustee or the Depositor
shall reasonably request in writing (including, without limitation,
information with respect to any modifications of any Mortgage Loan,
any Mortgage Loans in default or foreclosure, the operation and
disposition of REO Property and the assumption of any Mortgage Loan);
and
(xv) such additional information as is contemplated on pages ______and
__________of the Prospectus Supplement.
On the date on which the reports described above are delivered to the
Trustee, the Master Servicer shall also deliver or cause to be delivered to the
Trustee and the Rating Agencies a report, in writing and in a computer-readable
medium, in form reasonably acceptable to the Trustee, containing the information
with respect to the Mortgage Pool necessary for the Trustee to prepare with
respect to the Mortgage Pool the additional schedules and tables required to be
made available by the Trustee pursuant to Section 4.02(a) in substantially the
same formats set forth in Annex A to the Prospectus Supplement, in each case
reflecting the changes in the Mortgage Pool during the related Collection
Period.
Not later than the first day of the calendar month following each Master
Servicer Remittance Date, the Master Servicer shall forward to the Trustee a
statement, setting forth the status of the Certificate Account as of the close
of business on such Master Servicer Remittance Date, stating that all
distributions required by this Agreement to be made by the Master Servicer have
been made (or, in the case of any required distribution that has not been made
by the Master Servicer, specifying the nature and status thereof) and showing,
for the period from the preceding Master Servicer Remittance Date (or, in the
case of the first Master Servicer Remittance Date, from the Cut-Off Date) to
such Master Servicer Remittance Date, the aggregate of deposits into and
withdrawals from the Certificate Account for each category of deposit specified
in Section 3.04(a) and each category of withdrawal specified in Section 3.05(a).
The Master Servicer shall also deliver to the Trustee, upon reasonable request
of the Trustee, any and all additional information relating to the Mortgage
Loans (which information shall be based upon reports delivered to the Master
Servicer by the Special Servicer with respect to Specially Serviced Mortgage
Loans and REO Properties).
Within _____ days following the end of each calendar quarter, commencing
with the calendar quarter ended ____________ __, 199__ the Master Servicer shall
deliver to the Trustee, with respect to each Mortgaged Property and REO
Property, a report (an "Operating Statement Analysis") containing revenue,
expense and net operating income information normalized using the methodology
described in Annex A of the Prospectus Supplement as of the end of such calendar
quarter. The requirement that the Master Servicer deliver each Operating
Statement Analysis is subject to the Master Servicer having received directly or
through the Special Servicer the related operating statements and rent rolls
from the related Mortgagor or otherwise.
The Master Servicer, on each Determination Date, shall forward (for
delivery on such Determination Date) to the Special Servicer all information
collected by the Master Servicer which the Special Servicer is required to
include in the Special Servicer Loan Status Report. Further, the Master Servicer
shall cooperate with the Special Servicer and provide the Special Servicer with
the information in the possession of the Master Servicer reasonably requested by
the Special Servicer, in writing, to the extent required to allow the Special
Servicer to perform its obligations under this Agreement with respect to those
Mortgage Loans serviced by the Master Servicer.
The Master Servicer shall use its reasonable efforts to notify the Rating
Agencies in a timely manner of any change in the identity of either of the two
largest tenants of any retail Mortgaged Property and any casualty at or
condemnation proceeding with respect to any Mortgaged Property, subject to its
becoming aware of such change or event.
To the extent the statements, reports and information (or portions thereof)
to be delivered by the Master Servicer under this Section 4.02(b) are derived
from underlying information to be delivered to the Master Servicer by the
Special Servicer, the Master Servicer shall not be liable for any failure to
deliver such statement, report or information (or portion thereof) on the
prescribed dates, to the extent such failure is caused by the Special Servicer's
failure to deliver such underlying information in a timely manner. Absent actual
knowledge to the contrary, the Master Servicer may conclusively rely on any such
information forwarded to it by the Special Servicer and shall have no obligation
to verify the same.
(c) On the second Business Day after each Determination Date, the Special
Servicer shall forward to the Master Servicer (A) the Special Servicer Loan
Status Report and (B) all information the Master Servicer will be required to
include in the other reports that the Master Servicer is obligated to deliver to
the Trustee pursuant to Section 4.02(b), to the extent such information relates
to any Specially Serviced Mortgage Loan or any REO Property. The Special
Servicer shall also deliver to the Master Servicer and the Trustee, upon the
reasonable written request of either of them, any and all additional information
in the possession of the Special Servicer relating to the Specially Serviced
Mortgage Loans and the REO Properties.
The Special Servicer shall cooperate with the Master Servicer and provide
the Master Servicer with the information in the possession of the Special
Servicer reasonably requested by the Master Servicer, in writing, to the extent
required to allow the Master Servicer to perform its obligations under this
Agreement with respect to the Specially Serviced Mortgage Loans and REO
Properties. Additional information regarding the Specially Serviced Mortgage
Loans, including, without limitation, any financial or occupancy information
(including lease summaries) provided to the Special Servicer by the Mortgagors
or otherwise obtained, shall be delivered to the Master Servicer, within ten
days of receipt.
SECTION 4.03 P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each Master Servicer
Remittance Date, the Master Servicer shall either (i) deposit into the
Distribution Account from its own funds an amount equal to the aggregate amount
of P&I Advances, if any, to be made in respect of the related Distribution Date,
(ii) apply amounts held in the Certificate Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances, or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made; provided
that if Late Collections of any of the delinquent principal and/or interest in
respect of which it is to make P&I Advances on any Master Servicer Remittance
Date are then on deposit in the Certificate Account, the Master Servicer shall
use such Late Collections (net of any Master Servicing Fees and Workout Fees
payable therefrom) to make such P&I Advances. Any amounts held in the
Certificate Account for future distribution and so used to make P&I Advances
(other than the Late Collections of the delinquent principal and/or interest
contemplated by the proviso to the preceding sentence) shall be appropriately
reflected in the Master Servicer's records and replaced by the Master Servicer
by deposit in the Certificate Account on or before the next succeeding
Determination Date (to the extent not previously replaced through the deposit of
Late Collections of the delinquent principal and/or interest in respect of which
such P&I Advances were made). If, as of 1:00 p.m., New York City time, on any
Master Servicer Remittance Date, the Master Servicer shall not have made any P&I
Advance required to be made on such date pursuant to this Section 4.03(a) (and
shall not have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy no. (____)
____-______ (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone no. (____) ___-____ (or such
alternative number provided by the Master Servicer to the Trustee in writing) as
soon as possible, but in any event before 3:00 p.m., New York City time, on such
Master Servicer Remittance Date. If, after such notice, the Trustee does not
receive the full amount of such P&I Advances by the close of business (New York
City time) on such Master Servicer Remittance Date, then (i) unless the Trustee
determines that such Advance would be a Nonrecoverable P&I Advance if made, the
Trustee shall make the portion of such P&I Advances that was required to be, but
was not, made by the Master Servicer on such Master Servicer Remittance Date and
(ii) such failure shall constitute an Event of Default on the part of the Master
Servicer.
(b) The aggregate amount of P&I Advances to be made in respect of the
Mortgage Loans (including, without limitation, Balloon Mortgage Loans delinquent
as to their respective Balloon Payments) and any REO Loans for any Distribution
Date shall equal, subject to subsection (c) below, the aggregate of all Monthly
Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each
case net of related Master Servicing Fees and Workout Fees payable hereunder,
that were due or deemed due, as the case may be, in respect thereof on their
respective Due Dates during the related Collection Period and that were not paid
by or on behalf of the related Mortgagors or otherwise collected as of the close
of business on the last day of the related Collection Period; provided that, if
an Appraisal Reduction Amount exists with respect to any Required Appraisal
Loan, then, in the event of subsequent delinquencies thereon, the interest
portion of the P&I Advance in respect of such Required Appraisal Loan for the
related Distribution Date shall be reduced (it being herein acknowledged that
there shall be no reduction in the principal portion of such P&I Advance) to
equal the product of (i) the amount of the interest portion of such P&I Advance
for such Required Appraisal Loan for such Distribution Date without regard to
this proviso, multiplied by (ii) a fraction, expressed as a percentage, the
numerator of which is equal to the Stated Principal Balance of such Required
Appraisal Loan immediately prior to such Distribution Date, net of the related
Appraisal Reduction Amount, if any, and the denominator of which is equal to the
Stated Principal Balance of such Required Appraisal Loan immediately prior to
such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall
be required to be made hereunder if such P&I Advance would, if made, constitute
a Nonrecoverable P&I Advance. In addition, Nonrecoverable P&I Advances shall be
reimbursable pursuant to Section 3.05(a) out of general collections on the
Mortgage Pool on deposit in the Certificate Account. The determination by the
Master Servicer or, if applicable, the Trustee, that it has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's
Certificate delivered promptly (and, in any event, in the case of a proposed P&I
Advance by the Master Servicer, no less than 5 Business Days prior to the
related Master Servicer Remittance Date) to the Trustee (or, if applicable,
retained thereby), the Depositor and the Rating Agencies, setting forth the
basis for such determination, together with ( such determination is prior to the
liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal
of the related Mortgaged Property or REO Property, as the case may be, which
shall have been performed within the twelve months preceding such determination,
and further accompanied by any other information that the Master Servicer or the
Special Servicer may have obtained and that supports such determination. The
Trustee shall deliver such Officer's Certificate as soon as practicable after
its determination that such P&I Advance would be nonrecoverable. If such an
Appraisal shall not have been required and performed pursuant to the terms of
this Agreement, the Master Servicer or the Special Servicer, as the case may be,
may, subject to its reasonable and good faith determination that such Appraisal
will demonstrate the nonrecoverability of the related Advance, obtain an
Appraisal for such purpose at the expense of the Trust. The Trustee shall be
entitled to rely on any determination of nonrecoverability that may have been
made by the Master Servicer or the Special Servicer with respect to a particular
P&I Advance, and the Master Servicer shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Special
Servicer with respect to a particular P&I Advance.
(d) As and to the extent permitted by Section 3.05(a), the Master Servicer
and the Trustee shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each P&I Advance made
thereby (out of its own funds) for so long as such P&I Advance is outstanding
(or, in the case of Advance Interest payable to the Master Servicer, if earlier,
until the Late Collection of the delinquent principal and/or interest in respect
of which such P&I Advance was made has been received by the Master Servicer or
any of its Sub-Servicers), and such interest will be paid: first, out of any
Default Charges collected on or in respect of the related Mortgage Loan during,
and allocable to, the period, if any, that it was a Specially Serviced Mortgage
Loan or an REO Loan; and second, at any time coinciding with or following the
reimbursement of such P&I Advance, out of general collections on the Mortgage
Loans and any REO Properties on deposit in the Certificate Account. As and to
the extent provided by Section 3.05(a), the Master Servicer shall reimburse
itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon
as practicable after funds available for such purpose are deposited in the
Certificate Account, and in no event shall interest accrue in accordance with
this Section 4.03(d) on any P&I Advance as to which the corresponding Late
Collection had been received as of the related date on which such P&I Advance
was made.
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses to the Sequential Pay Certificates.
On each Distribution Date, following the distributions to be made to the
Certificateholders on such date pursuant to Section 4.01(a), the Trustee shall
determine the amount, if any, by which (i) the then aggregate Certificate
Principal Balance of the Sequential Pay Certificates, exceeds (ii) the aggregate
Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date. If such excess does exist, then
the Class Principal Balances of the Class K, Class J, Class H, Class G, Class F,
Class E, Class D, Class C and Class B Certificates shall be reduced
sequentially, in that order, in each case, until such excess or the related
Class Principal Balance is reduced to zero (whichever occurs first). If, after
the foregoing reductions, the amount described in clause (i) of the second
preceding sentence still exceeds the amount described in clause (ii) of the
second preceding sentence, then the respective Class Principal Balances of the
Class A-1 and Class A-2 Certificates shall be reduced, pro rata in accordance
with the relative sizes of the then outstanding Class Principal Balances of such
Classes of Certificates, until such excess or each such Class Principal Balance
is reduced to zero (whichever occurs first). Such reductions in the Class
Principal Balances of the respective Classes of the Sequential Pay Certificates
shall be deemed to be allocations of Realized Losses and Additional Trust Fund
Expenses.
SECTION 4.05 Deemed Distributions on, and Allocations of Realized Losses
and Additional Trust Fund Expenses to, the REMIC I Regular
Interests.
(a) All distributions of Distributable Certificate Interest made in respect
of the respective Classes of REMIC II Regular Certificates on each Distribution
Date pursuant to Section 4.01(a) shall be deemed to have first been distributed
from REMIC I to REMIC II in respect of the respective REMIC I Regular Interests,
pro rata in accordance with, and in an amount equal to, the aggregate
Uncertificated Distributable Interest in respect of each REMIC I Regular
Interest for such Distribution Date and, to the extent not previously deemed
paid pursuant to this sentence, for all prior Distribution Dates. In addition,
distributions of principal and reimbursements of previously allocated Realized
Losses and Additional Trust Fund Expenses made in respect of each Class of
Sequential Pay Certificates on each Distribution Date pursuant to Section
4.01(a) shall be deemed to have first been distributed from REMIC I to REMIC II
in respect of the Corresponding Major REMIC I Regular Interest and the
Corresponding Minor REMIC I Regular Interest, pro rata based on their respective
Uncertificated Principal Balances outstanding immediately prior to such
Distribution Date. In each such case, if such distribution on any such Class of
Certificates was a distribution of interest, of principal or in reimbursement of
any previously allocated Realized Losses and Additional Trust Fund Expenses in
respect of any such Class of Certificates, then the corresponding distribution
deemed to be made on a REMIC I Regular Interest pursuant to the preceding two
sentences shall be deemed to also be a distribution of interest, of principal or
in reimbursement of any previously allocated Realized Losses and Additional
Trust Fund Expenses, as the case may be, in respect of such REMIC I Regular
Interest.
(b) All distributions of Prepayment Premiums made in respect of the
respective Classes of REMIC II Regular Certificates on each Distribution Date
pursuant to Section 4.01(a) shall be deemed to have first been distributed from
REMIC I to REMIC II in respect of the respective REMIC I Regular Interests, pro
rata based upon the amount of principal deemed distributed in respect of each
such REMIC I Regular Interest for such Distribution Date pursuant to Section
4.05(a) above.
(c) The actual distributions made by the Trustee on each Distribution Date
in respect of the REMIC II Certificates pursuant to Section 4.01(a), shall be
deemed to have been so made from the amounts deemed distributed in respect of
the REMIC I Regular Interests on such Distribution Date pursuant to this Section
4.05. Notwithstanding the deemed distributions on the REMIC I Regular Interests
described in this Section 4.05, actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01.
(d) Each Realized Loss and Additional Trust Fund Expense, if any, allocated
to each Class of Sequential Pay Certificates on any Distribution Date shall be
deemed to have first been allocated to the Corresponding Major REMIC I Regular
Interest and the Corresponding Minor REMIC I Regular Interest (pro rata based on
their respective Uncertificated Principal Balances outstanding immediately
following the deemed distributions on such Distribution Date pursuant to Section
4.05(a)), with a corresponding reduction in the Uncertificated Principal Balance
of each such REMIC I Regular Interest.
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms annexed
hereto as Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇ and A-5; provided that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the Registered Certificates and
the Class F Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The REMIC II Regular Certificates will
be issuable in denominations corresponding to initial Certificate Principal
Balances or Certificate Notional Amounts, as the case may be, as of the Closing
Date of not less than $__________ (or, with respect to the Class A Certificates,
$____________ and, with respect to the Class X Certificates, $____________) and
any whole dollar denomination in excess thereof; provided, however, that a
single Certificate of each Class thereof may be issued in a different
denomination. Each Class of Residual Certificates will be issuable only in a
denomination representing the entire Class.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee in its capacity as trustee hereunder by an authorized
officer. Certificates bearing the manual or facsimile signatures of individuals
who were at any time the authorized officers of the Trustee shall be entitled to
all benefits under this Agreement, subject to the following sentence,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication;
provided that the Certificates issued on the Closing Date shall, in any event,
be dated the Closing Date.
SECTION 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. For so long as the Trustee acts as Certificate Registrar, its
Corporate Trust Office shall constitute the office of the Certificate Registrar
maintained for such purposes. The Trustee may appoint, by a written instrument
delivered to the Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator, any other bank or trust company to act as Certificate
Registrar under such conditions as the predecessor Certificate Registrar may
prescribe, provided that the Trustee shall not be relieved of any of its duties
or responsibilities hereunder as Certificate Registrar by reason of such
appointment. If the Trustee resigns or is removed in accordance with the terms
hereof, the successor trustee shall immediately succeed to its predecessor's
duties as Certificate Registrar. The Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. Upon request, the Trustee
shall promptly inform, or cause the Certificate Registrar to inform, the Master
Servicer or the Special Servicer, as applicable, of the identity of all
Certificateholders of the Controlling Class.
If three or more Certificateholders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and such application states that
the applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours to
the most recent list of Certificateholders held by the Trustee. If the Trustee
is no longer the Certificate Registrar and such a list is as of a date more than
90 days prior to the date of receipt of such applicants' request, the Trustee
shall promptly request from the Certificate Registrar a current list as provided
above, and shall afford such applicants access to such list promptly upon
receipt.
Every Certificateholder, by receiving and holding such list, agrees with
the Certificate Registrar and the Trustee that neither the Certificate Registrar
nor the Trustee shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
(b) No transfer of any Non-Registered Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. In the event a transfer of any Non-Registered
Certificate (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or any Affiliate of the Depositor and other than a Non-Registered Certificate
which constitutes a Book-Entry Certificate) is to be made without registration
under the Securities Act, the Certificate Registrar shall refuse to register
such transfer unless it receives the following: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit B-1 hereto; or (ii) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-2 hereto and a certificate from such Certificateholder's prospective
transferee substantially in the form attached either as Exhibit B-3 or Exhibit
B-4 hereto; or (iii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer may 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. If a transfer of any interest in any
Non-Registered Certificate that constitutes a Book-Entry Certificate (such as a
Class F Certificate) is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
transfer of any interest in such Non-Registered Certificate by the Depositor or
any of its Affiliates), then the Certificate Owner desiring to effect such
transfer shall be required to obtain either (i) a certificate from such
Certificate Owner's prospective transferee substantially in the form attached as
Exhibit B-5 hereto or as Exhibit B-6 hereto; or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust or
of the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator or the Certificate Registrar in
their respective capacities as such). None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Non-Registered Certificate or interest therein without
registration or qualification. Any Holder or Certificate Owner of a
Non-Registered Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositor, the Trustee, the REMIC Administrator
and the Certificate Registrar against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
(c) No transfer of any Non-Registered Certificate or any interest therein
shall be made under any circumstances (i) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
▇▇▇▇▇ plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to ERISA or the
Code (each, a "Plan"), or (ii) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of or as trustee of a Plan, or with "plan assets" within the meaning of the
Department of Labor regulation promulgated at 29 C.F.R. ss.2510.3-101, unless:
(x) in the case of any Non-Registered Certificate or interest therein that is
being acquired with "plan assets", the prospective Transferee provides the
Certificate Registrar (or, in the case of a Non-Registered Certificate that
constitutes a Book-Entry Certificate, the Certificate Owner that desires to
effect the transfer) with a certification to the effect that the purchase,
continued holding and transfer of such Certificate or interest therein is exempt
from the prohibited transaction provisions of Section 406 of ERISA and Section
4975 of the Code under Sections I and III of Prohibited Transaction Class
Exemption ("PTCE") 95-60 or under Section 401(c) of ERISA; or (y) in the case of
any Non-Registered Certificate that is held as a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel, obtained at the expense of such prospective
Transferee, which establish to the satisfaction of the Certificate Registrar
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code, will not result in the imposition of an excise tax
under Section 4975 of the Code and will not subject the Trustee, Master Servicer
or Special Servicer to any obligation in addition to those undertaken in this
Agreement. Each Person who acquires any Certificate (including, without
limitation, a Registered Certificate) or interest therein shall (in all cases,
in the case of a Registered Certificate, and only if such Person shall not have
delivered the Opinion of Counsel and/or one of the certifications referred to in
the preceding sentence, in the case of a Non-Registered Certificate) be deemed
to have certified 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 assets of a Plan, or (ii)
alternatively, that the purchase, continued holding and transfer of such
Certificate or interest therein is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Prohibited
Transaction Exemption ("PTE") 90-88 or PTE 93-31, Sections I and III of PTCE
95-60 or Section 401(c) of ERISA.
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause (ii)(A) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Trustee under clause (ii)(B) 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 each Person acquiring
any Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and a United
States Person and shall promptly notify the Trustee and the REMIC
Administrator of any change or impending change in its status as a
Permitted Transferee or United States Person.
(B) In connection with any proposed Transfer of any Ownership Interest
in a Residual Certificate (other than in connection with the initial
issuance thereof or the transfer thereof among the Depositor and its
Affiliates), the Certificate Registrar shall require delivery to it,
and shall not register the Transfer of any Residual Certificate until
its receipt of, an affidavit and agreement substantially in the form
attached hereto as Exhibit C-1 (a "Transfer Affidavit and Agreement")
from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other
things, that such Transferee is a Permitted Transferee, that it is not
acquiring its Ownership Interest in the Residual Certificate that is
the subject of the proposed Transfer as a nominee, trustee or agent
for any Person that is not a Permitted Transferee, that for so long as
it retains its Ownership Interest in a Residual Certificate it will
endeavor to remain a Permitted Transferee, that it is a United States
Person and that it has reviewed the provisions of this Section 5.02(d)
and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement
by a proposed Transferee under clause (B) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not
both a Permitted Transferee and a United States Person, no Transfer of
an Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Except in connection with the initial issuance of the Residual
Certificates or any transfer thereof among the Depositor and its
Affiliates, each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer Affidavit
and Agreement from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar a
certificate substantially in the form attached hereto as Exhibit C-2
stating that, among other things, it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee and a United
States Person.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee and the REMIC Administrator
written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Residual
Certificate, if it is, or is holding an Ownership Interest in a
Residual Certificate on behalf of, a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Residual Certificate that
was in compliance with the provisions of this Section 5.02(d) shall be
restored, to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator or the Certificate Registrar shall be
under any liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 5.02(d)
or for making any payments due on such Certificate to the Holder thereof or
for taking any other action with respect to such Holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the restrictions in this Section 5.02(d) and to
the extent that the retroactive restoration of the rights of the Holder of
such Residual Certificate as described in clause (ii)(A) above shall be
invalid, illegal or unenforceable, then the Trustee shall have the right,
but not the obligation, to cause the transfer of such Residual Certificate
to a Permitted Transferee selected by the Trustee on such terms as the
Trustee may choose, and the Trustee shall not be liable to any Person
having an Ownership Interest in a Residual Certificate as a result of its
exercise of such discretion. Such Permitted Transferee shall promptly
endorse and deliver such Residual Certificate in accordance with the
instructions of the Trustee. Such Permitted Transferee may be the Trustee
itself or any Affiliate of the Trustee.
(iii) The REMIC Administrator shall make available to the Internal
Revenue Service and those Persons specified by the REMIC Provisions all
information necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Residual Certificate to any Person
who is not a Permitted Transferee or a United States Person, including the
information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real
estate investment trust, common trust fund, partnership, trust, estate or
organization described in Section 1381 of the Code that holds an Ownership
Interest in a Residual Certificate having as among its record holders at
any time any Person which is not a Permitted Transferee. The Person holding
such Ownership Interest shall be responsible for the reasonable
compensation of the REMIC Administrator for providing such information.
(iv)The provisions of this Section 5.02(d) set forth prior to this
subsection (iv) may be modified, added to or eliminated, provided that
there shall have been delivered to the Trustee and the REMIC Administrator
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 downgrade its then-current rating of any Class
of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee and the REMIC Administrator, to the effect that such modification
of, addition to or elimination of such provisions will not cause either
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 REMIC-related tax caused by
the Transfer of a Residual Certificate to a Person which is not a Permitted
Transferee. Such Opinion of Counsel shall not be at the expense of the
Trust, the Trustee or the REMIC Administrator.
(e) Subject to the preceding subsections, upon surrender for registration
of transfer of any Certificate at the offices of the Certificate Registrar
maintained for such purpose, the Trustee shall execute and the Certificate
Registrar shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of authorized
denominations of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(g) Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(i) Subsequent to the initial issuance of the Certificates, the Trustee
shall be responsible for the preparation of physical Certificates in connection
with any transfer or exchange; provided that the correct form of Certificate of
each Class shall be provided by the Depositor to the Trustee on diskette on or
about the Closing Date. All Certificates surrendered for transfer and exchange
shall be physically canceled by the Certificate Registrar, and the Certificate
Registrar shall hold or destroy such canceled Certificates in accordance with
its standard procedures.
(j) The Certificate Registrar shall be required to provide the Depositor
and the REMIC Administrator with an updated copy of the Certificate Register on
or about January 1 of each year, commencing __________ 1, 199__, and shall be
required to provide the Depositor, the Master Servicer, the Special Servicer or
the REMIC Administrator with an updated copy of the Certificate Register at
other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or interest
therein as a fiduciary or agent for one or more accounts, such Person shall be
required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
SECTION 5.03 Book-Entry Certificates.
(a) The Registered Certificates and the Class F Certificates shall, in the
case of each Class thereof, initially be issued as one or more Certificates
registered in the name of the Depository or its nominee and, except as provided
in subsection (c) below, transfer of such Certificates may not be registered by
the Certificate Registrar unless such transfer is to a successor Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and transfer
their respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in subsection
(c) below, shall not be entitled to fully registered, physical Certificates
("Definitive Certificates") in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner. Each Depository Participant shall only transfer the
Ownership Interests in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures. Neither the Certificate Registrar nor the
Trustee shall have any responsibility to monitor or restrict the transfer of
Ownership Interests in Certificates through the book-entry facilities of the
Depository.
(b) The Depositor, the Mortgage Loan Seller, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator and the Certificate
Registrar may for all purposes, including the making of payments due on the
Book-Entry Certificates, deal with the Depository as the authorized
representative of the Certificate Owners with respect to such Certificates for
the purposes of exercising the rights of Certificateholders hereunder. The
rights of Certificate Owners with respect to the Book-Entry Certificates shall
be limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of the Book-Entry Certificates with respect to any
particular matter shall not be deemed inconsistent if they are made with respect
to different Certificate Owners. The Trustee may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
If any party hereto requests from the Depository a list of the Depository
Participants in respect of any Class or Classes of the Book-Entry Certificates,
the cost thereof shall be borne by the party on whose behalf such request is
made (but in no event shall any such cost be borne by the Trustee).
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to any Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to any Class of the Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of any Class of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the appropriate Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator or the Certificate Registrar
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Registered Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
reasonably be required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.01 and for all other purposes whatsoever, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
SECTION 5.06 Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its acquisition of
an Ownership Interest in the Book-Entry Certificates to agree to comply with the
applicable transfer requirements of Sections 5.02(b) and 5.02(c).
(b) To the extent that under the terms of this Agreement, it is necessary
to determine whether any Person is a Certificate Owner, the Trustee shall make
such determination based on a certificate of such Person which shall specify, in
reasonable detail satisfactory to the Trustee, the Class and Certificate
Principal Balance or Certificate Notional Amount, as the case may be, of the
Book-Entry Certificate beneficially owned, the value of such Person's interest
in such Certificate and any intermediaries through which such Person's Ownership
Interest in such Book-Entry Certificate is held; provided, however, that the
Trustee shall not knowingly recognize such Person as a Certificate Owner if such
Person, to the knowledge of a Responsible Officer of the Trustee, acquired its
Ownership Interest in a Book-Entry Certificate in violation of Section 5.02(b)
and/or Section 5.02(c), or if such Person's certification that it is a
Certificate Owner is in direct conflict with information obtained by the Trustee
from the Depository, Depository Participants, and/or indirect participating
brokerage firms for which a Depository Participant acts as agent, with respect
to the identity of a Certificate Owner. The Trustee shall exercise its
reasonable discretion in making any determination under this Section 5.06(b) and
shall afford any Person providing information with respect to its beneficial
ownership of any Certificates an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER, THE
SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer and the REMIC
Administrator.
The Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer and the REMIC Administrator shall be liable in accordance herewith only
to the extent of the respective obligations specifically imposed upon and
undertaken by the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer and the REMIC Administrator herein.
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special
Servicer or the REMIC Administrator.
Subject to the following paragraph, the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer and the REMIC Administrator
each will keep in full effect its existence, rights and franchises as a
corporation or other business organization under the laws of the jurisdiction of
its organization, and each will obtain and preserve its qualification to do
business as a foreign corporation or otherwise in each jurisdiction in which
such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer and the REMIC Administrator each may be merged or consolidated with or
into any Person, or transfer all or substantially all of its assets (which, as
to the Master Servicer and the Special Servicer, may be limited to all or
substantially all of its assets relating to the business of mortgage loan
servicing) to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the REMIC Administrator shall be a party, or
any Person succeeding to the business of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer or the REMIC Administrator,
shall be the successor of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that no successor or surviving Person shall
succeed to the rights of the Master Servicer, the Special Servicer, or the
Mortgage Loan Seller unless such succession will not result in any withdrawal,
downgrade or qualification of the rating then assigned by [either] Rating Agency
to any Class of Certificates (as confirmed in writing).
SECTION 6.03 Limitation on Liability of the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator and Others.
None of the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator or any director, officer, employee or agent of any of the
foregoing shall be under any liability to the Trust or the Certificateholders
for any action taken, or not taken, in good faith pursuant to this Agreement, or
for errors in judgment; provided, however, that this provision shall not protect
the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator or any such other Person against any breach of a representation or
warranty made herein, or against any expense or liability specifically required
to be borne thereby pursuant to the terms hereof, or against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder, or by reason
of negligent disregard of such obligations and duties. The Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and any director,
officer, employee or agent of any of the foregoing may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and any director,
officer, employee or agent of any of the foregoing shall be indemnified and held
harmless by the Trust against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement, the Certificates or
any asset of the Trust, other than any loss, liability or expense: (i)
specifically required to be borne by such Person pursuant to the terms hereof,
including, without limitation, Section 10.01(h); (ii) incidental to the
performance of obligations and duties hereunder, including, without limitation,
in the case of the Master Servicer or the Special Servicer, the prosecution of
an enforcement action in respect of any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement); or (iii) which was incurred in connection with
claims against such party resulting from (A) any breach of a representation or
warranty made herein by such party, (B) willful misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder by such party,
or from negligent disregard of such obligations or duties, or (C) any violation
by such party of any state or federal securities law. None of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, except in
the case of a legal action contemplated by Section 3.22, in its opinion does not
involve it in any ultimate expense or liability; provided, however, that the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
may in its discretion undertake any such action which it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust, and the Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator each shall be entitled to the direct payment of such
expenses or to be reimbursed therefor from the Certificate Account as provided
in Section 3.05(a).
SECTION 6.04 Master Servicer, Special Servicer and REMIC Administrator Not
to Resign.
None of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be permitted to resign from the obligations and duties
hereby imposed on it, except (i) upon the appointment of, and the acceptance of
such appointment by, a successor thereto which is reasonably acceptable to the
Trustee and the receipt by the Trustee of written confirmation from each and
every Rating Agency to the effect that such resignation and appointment will not
result in the downgrade, qualification or withdrawal of any rating then assigned
by such Rating Agency to any Class of Certificates, or (ii) upon determination
that such obligations and duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it, the other activities of the Master Servicer,
Special Servicer or REMIC Administrator, as the case may be, so causing such a
conflict being of a type and nature carried on by the Master Servicer, Special
Servicer or REMIC Administrator, as the case may be, at the date of this
Agreement. Any such determination of the nature described in clause (ii) of the
preceding sentence permitting the resignation of the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, shall be
evidenced by an Opinion of Counsel to such effect which shall be rendered by
Independent counsel, be addressed and delivered to the Trustee and the Rating
Agencies and be paid for by the resigning party. No such resignation for either
reason shall become effective until the Trustee or other successor shall have
assumed the responsibilities and obligations of the resigning party hereunder.
All costs and expenses of the Trustee and the Trust (including, without
limitation, any costs or expenses of any party hereto reimbursable out of the
Trust Fund) in connection with any such resignation (including, without
limitation, any requisite transfer of servicing) shall be paid for, as incurred,
by the resigning party.
Consistent with the foregoing, none of the Master Servicer, the Special
Servicer or the REMIC Administrator shall be permitted, except as expressly
provided herein, to assign or transfer any of its rights, benefits or privileges
hereunder to any other Person, or delegate to or subcontract with, or authorize
or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer, the Special Servicer or the REMIC
Administrator are transferred to a successor thereto, then, subject to Section
3.22, the entire amount of compensation payable to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, pursuant hereto
shall thereafter be payable to such successor.
SECTION 6.05 Rights of the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator.
The Master Servicer, the Special Servicer and the REMIC Administrator each
shall afford the Depositor and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained by the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, in respect
of its rights and obligations hereunder and access to such of its officers as
are responsible for such obligations. Upon reasonable request, the Master
Servicer, the Special Servicer and the REMIC Administrator each shall furnish
the Depositor and the Trustee with its most recent financial statements and such
other information as it possesses, and which it is not prohibited by law or, to
the extent applicable, binding obligations to third parties with respect to
confidentiality from disclosing, regarding its business, affairs, property and
condition, financial or otherwise. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer, the Special Servicer and the
REMIC Administrator hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer,
the Special Servicer or the REMIC Administrator hereunder or, in connection with
a default thereby, exercise the rights of the Master Servicer, the Special
Servicer or the REMIC Administrator hereunder; provided, however, that none of
the Master Servicer, the Special Servicer or the REMIC Administrator shall be
relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee. The Depositor shall not have any responsibility
or liability for any action or failure to act by the Master Servicer, the
Special Servicer or the REMIC Administrator and is not obligated to supervise
the performance of the Master Servicer, the Special Servicer or the REMIC
Administrator under this Agreement or otherwise.
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
(a) "Event of Default", wherever used herein, unless the context otherwise
requires, means any one of the following events:
(i) any failure by the Master Servicer to deposit into the
Certificate Account any amount required to be so deposited under this
Agreement which continues unremedied for two Business Days following
the date on which such deposit was first required to be made, or any
failure by the Master Servicer to deposit into, or to remit to the
Trustee for deposit into, the Distribution Account on any Master
Servicer Remittance Date, the full amount of any Master Servicer
Remittance Amount required to be so deposited or remitted under this
Agreement on such date; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account
or the REO Account any amount required to be so deposited or remitted
under this Agreement which continues unremedied for two Business Days
following the date on which such deposit or remittance was first
required to be made; or
(iii) any failure by the Master Servicer to remit to the Trustee
for deposit into the Distribution Account, on any Master Servicer
Remittance Date, the full amount of P&I Advances required to be made on
such date; or
(iv) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it pursuant to this Agreement,
which failure continues unremedied for a period of one Business Day
following the date on which notice shall have been given to the Master
Servicer by the Trustee as provided in Section 3.11(e); or
(v) any failure by the Special Servicer to timely make (or timely
direct the Master Servicer to make) any Servicing Advance required to
be made by it or the Master servicer at its direction pursuant to this
Agreement, which failure continues unremedied for a period of one
Business Day following the date on which notice has been given to the
Special Servicer by the Trustee as provided in Section 3.11(e); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other
of the covenants or agreements thereof contained in this Agreement,
which failure continues unremedied for a period of 30 days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto, or to the
Master Servicer or the Special Servicer, as the case may be, with a
copy to each other party hereto, by the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the REMIC Administrator by any other party hereto, or to
the REMIC Administrator, with a copy to each other party hereto, by the
Holders of Certificates entitled to at least 25% of the Voting Rights;
or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement which materially and adversely
affects the interests of any Class of Certificateholders and which
continues unremedied for a period of 30 days after the date on which
notice of such breach, requiring the same to be remedied, shall have
been given to the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by any other party hereto, or to the
Master Servicer, the Special Servicer or the REMIC Administrator, as
the case may be, with a copy to each other party hereto, by the Holders
of Certificates entitled to at least 25% of the Voting Rights; or
(ix) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Master Servicer, the Special Servicer or the REMIC
Administrator and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator,
receiver, liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings of or relating to it or of or relating to all or
substantially all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend
payment of its obligations, or take any corporate action in furtherance
of the foregoing; or
(xii) the Trustee shall have received written notice from either
Rating Agency that the continuation of the Master Servicer or the
Special Servicer in such capacity would result (or the continuation of
the Master Servicer or the Special Servicer in such capacity has
resulted) in a downgrade, qualification or withdrawal of any rating
then assigned by such Rating Agency to any Class of Certificates.
Each Event of Default listed above as items (iv) through (xii) shall constitute
an Event of Default only with respect to the relevant party; provided that if a
single entity acts or any two or more Affiliates act as Master Servicer, Special
Servicer and REMIC Administrator, or in any two or more of the foregoing
capacities, an Event of Default in one capacity (other than an event described
in clause (xii)) will constitute an Event of Default in each such capacity.
(b) If any Event of Default with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights or if the relevant
Event of Default is the one described in clause (xii) of subsection (a) above,
the Trustee shall, terminate, by notice in writing to the Defaulting Party (with
a copy of such notice to each other party hereto), all of the rights and
obligations (accruing from and after such notice) of the Defaulting Party under
this Agreement and in and to the Mortgage Loans and the proceeds thereof. From
and after the receipt by the Defaulting Party of such written notice, all
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates (other than as a Holder of any Certificate) or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under this Section, and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Defaulting Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. The Master Servicer and the Special
Servicer each agree that, if it is terminated pursuant to this Section 7.01(b),
it shall promptly (and in any event no later than ten Business Days subsequent
to its receipt of the notice of termination) provide the Trustee with all
documents and records reasonably requested thereby to enable the Trustee to
assume the Master Servicer's or Special Servicer's, as the case may be,
functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the Trustee for administration by it of all
cash amounts which shall at the time be or should have been credited by the
Master Servicer to the Certificate Account, the Distribution Account, any
Servicing Account or any Reserve Account (if it is the Defaulting Party) or by
the Special Servicer to the REO Account, the Certificate Account, any Servicing
Account or any Reserve Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans and any REO Properties (provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be obligated for or
entitled to receive all amounts accrued or owing by or to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances or otherwise, and it and its directors, officers, employees and agents
shall continue to be entitled to the benefits of Section 6.03 notwithstanding
any such termination). All costs and expenses of the Trustee and the Trust
(including, without limitation, any costs and expenses of any party hereto
reimbursable out of the Trust Fund) in connection with the termination of the
Master Servicer or Special Servicer, as applicable, under this Section 7.01(b)
(including, without limitation, the requisite transfer of servicing) shall be
paid for, as incurred, by the Defaulting Party.
(c) If any Event of Default with respect to the REMIC Administrator shall
occur and be continuing, then, and in each and every such case, so long as the
Event of Default shall not have been remedied, the Depositor or the Trustee may,
and at the written direction of the Holders of Certificates entitled to at least
51% of the Voting Rights, the Trustee (or, if the Trustee is also the REMIC
Administrator, the Master Servicer) shall, terminate, by notice in writing to
the REMIC Administrator (with a copy to each of the other parties hereto), all
of the rights and obligations of the REMIC Administrator under this Agreement.
From and after the receipt by the REMIC Administrator of such written notice (or
if the Trustee is also the REMIC Administrator, from and after such time as
another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Trustee (or such other successor)
pursuant to and under this Section, and, without limitation, the Trustee (or
such other successor) is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the REMIC Administrator, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination. The REMIC Administrator agrees promptly
(and in any event no later than ten Business Days subsequent to its receipt of
the notice of the termination) to provide the Trustee (or, if the Trustee is
also the REMIC Administrator, such other successor appointed as contemplated by
Section 7.02) with all documents and records requested thereby to enable the
Trustee (or such other successor) to assume the REMIC Administrator's functions
hereunder, and to cooperate with the Trustee (or such other successor) in
effecting the termination of the REMIC Administrator's responsibilities and
rights hereunder (provided, however, that the REMIC Administrator shall continue
to be obligated for or entitled to receive all amounts accrued or owing by or to
it under this Agreement on or prior to the date of such termination, and it and
its directors, officers, employees and agents shall continue to be entitled to
the benefits of Section 6.03 notwithstanding any such termination).
SECTION 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special Servicer or the
REMIC Administrator resigns pursuant to clause (ii) of the first sentence of
Section 6.04 or receives a notice of termination pursuant to Section 7.01, the
Trustee shall be the successor in all respects to the Master Servicer, the
Special Servicer or (unless it has also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation which the resigning or
terminated party would have been entitled to for future services rendered if the
resigning or terminated party had continued to act hereunder. Notwithstanding
the above, the Trustee may, if it shall be unwilling to so act, or shall, if it
is unable to so act, or is not approved by each and every Rating Agency as an
acceptable master servicer or special servicer, as the case may be, of
commercial mortgage loans, or if the Holders of Certificates entitled to at
least 51% of the Voting Rights so request in writing to the Trustee, or if the
REMIC Administrator is the resigning or terminated party and the Trustee had
been acting in such capacity, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established and qualified institution as the
successor to the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, hereunder;
provided that such appointment does not result in the downgrading, qualification
or withdrawal of any rating then assigned by either Rating Agency to any Class
of Certificates (as evidenced by written confirmation thereof from each Rating
Agency). No appointment of a successor to the Master Servicer, the Special
Servicer or the REMIC Administrator hereunder shall be effective until the
assumption of the successor to such party of all its responsibilities, duties
and liabilities hereunder. Pending appointment of a successor to the Master
Servicer, the Special Servicer or the REMIC Administrator hereunder, the Trustee
shall act in such capacity as hereinabove provided. In connection with any such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on or in
respect of the Mortgage Loans or otherwise as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of that
permitted the resigning or terminated party hereunder. The Depositor, the
Trustee, such successor and each other party hereto shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Any costs and expenses associated with the transfer of the foregoing
functions under this Agreement (other than the set-up costs of the successor)
shall be borne by the predecessor Master Servicer, Special Servicer or REMIC
Administrator, as applicable, and, if not paid by such predecessor Master
Servicer, Special Servicer or REMIC Administrator within thirty days of its
receipt of an invoice therefor, shall be an expense of the Trust; provided that
such predecessor Master Servicer, Special Servicer or REMIC Administrator shall
reimburse the Trust for any such expense so incurred by the Trust; and provided,
further, that the Trustee shall decide whether and to what extent it is in the
best interest of the Certificateholders to pursue any remedy against any party
obligated to make such reimbursement.
SECTION 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer, the Special Servicer or
the REMIC Administrator pursuant to Section 6.04, any termination of the Master
Servicer, the Special Servicer or the REMIC Administrator pursuant to Section
7.01 or any appointment of a successor to the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04 or Section 7.02,
the Trustee shall give prompt written notice thereof to Certificateholders at
their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee has actual
knowledge, or would be deemed in accordance with Section 8.02(vii) to have
notice of the occurrence of such an event, the Trustee shall transmit by mail to
the other non-defaulting parties hereto and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04 Waiver of Events of Default.
The Holders entitled to at least 66-2/3% of the Voting Rights allocated to
each of the Classes of Certificates affected by any Event of Default hereunder
may waive such Event of Default, except that prior to any waiver of an Event of
Default arising from a failure to make P&I Advances, the Trustee shall be
reimbursed all amounts which it has advanced. Upon any such waiver of an Event
of Default, such Event of Default shall cease to exist and shall be deemed to
have been remedied for every purpose hereunder. No such waiver shall extend to
any subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. [Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor (provided that neither the Depositor nor any
Affiliate thereof is the party in respect of which such Event of Default exists)
shall be entitled to the same Voting Rights with respect to the matters
described above as they would if any other Person held such Certificates.]
SECTION 7.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right, in its own name and as trustee
of an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default hereunder
and after the curing or waiver of all such Events of Default and defaults which
may have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement; provided that it is herein
acknowledged and agreed that the Trustee is at all times acting in a fiduciary
capacity with respect to the Certificateholders. If an Event of Default
hereunder occurs and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement and applicable law, and use the
same degree of care and skill in their exercise as a prudent man or the Trustee
would exercise or use under the circumstances in the conduct of his or its own
affairs (whichever standard would be higher). Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform in form to the requirements of this Agreement. If
any such instrument is found not to so conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for, but may assume and rely upon, the accuracy and content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator and accepted by the Trustee in good faith, pursuant
to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall
not be liable except for the performance of such duties and obligations
as are specifically set forth in this Agreement, no implied covenants
or obligations shall be read into this Agreement against the Trustee
and, in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of Holders of Certificates entitled to
at least 25% (or, as to any particular matter, any higher percentage as
may be specifically provided for hereunder) of the Voting Rights
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement.
SECTION 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby; the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default hereunder which has not been cured,
to exercise such of the rights and powers vested in it by this
Agreement and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs;
(iv) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder, and
after the curing of all such Events of Default which may have occurred,
the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so
by Holders of Certificates entitled to at least 25% of the Voting
Rights; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition
to taking any such action;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys-in-fact, provided that the use of any such agent or
attorney-in-fact shall not relieve the Trustee from afy of it{
obligations hereunder, and the Trustee shall remain responsible for all
acts and omissions of any such agent or attorney-in-fact;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default hereunder unless a
Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office, and such notice
references the Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any act or
omission of the Master Servicer, the Special Servicer or the REMIC
Administrator (unless the Trustee is acting as Master Servicer, Special
Servicer or REMIC Administrator, as the case may be) or for any act or
omission of the Depositor or the Mortgage Loan Seller.
SECTION 8.03 Trustee Not Liable for Validity or Sufficiency of Certificates
or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
representations and warranties of, and the other statements attributed to, the
Trustee in Article II and the certificate of authentication executed by the
Trustee as Certificate Registrar set forth on each outstanding Certificate)
shall be taken as the statements of the Depositor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Sections 2.08 and 2.09) or of
any Certificate (other than as to the signature of the Trustee set forth
thereon) or of any Mortgage Loan or related document. The Trustee shall not be
accountable for the use or application by the Depositor of any of the
Certificates issued to it or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor or the Mortgage Loan
Seller in respect of the assignment of the Mortgage Loans to the Trust, or any
funds deposited in or withdrawn from the Certificate Account or any other
account by or on behalf of the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator and accepted by
the Trustee in good faith, pursuant to this Agreement.
SECTION 8.04 Trustee May Own Certificates8.04 Trustee Own Certificates.
The Trustee, in its individual or any other capacity, and any agent of the
Trustee may become the owner or pledgee of Certificates with, except as
otherwise provided in the definition of Certificateholder, the same rights it
would have if it were not the Trustee or such agent, as the case may be.
SECTION 8.05 Fees of Trustee; Indemnification of Trustee.
(a) The Trustee shall pay to itself on each Distribution Date, pursuant to
Section 3.05(b)(ii), from amounts on deposit in the Distribution Account, an
amount equal to the Trustee Fee for such Distribution Date and, to the extent
not previously received, for each prior Distribution Date.
(b) The Trustee and any director, officer, employee or agent of the Trustee
shall be entitled to be indemnified and held harmless by the Trust (to the
extent of amounts on deposit in the Certificate Account and the Distribution
Account from time to time) against any loss, liability or expense (including,
without limitation, costs and expenses of litigation, and of investigation,
counsel fees, damages, judgments and amounts paid in settlement) arising out of,
or incurred in connection with, any legal actions relating to the exercise and
performance of any of the powers and duties of the Trustee hereunder; provided
that none of the Trustee or any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(b) for (i) allocable
overhead, (ii) expenses or disbursements incurred or made by or on behalf of the
Trustee in the normal course of the Trustee's performing its routine duties in
accordance with any of the provisions hereof, (iii) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof, or (iv)
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of the Trustee's obligations and duties
hereunder, or by reason of negligent disregard of such obligations or duties, or
as may arise from a breach of any representation, warranty or covenant of the
Trustee made herein. The provisions of this Section 8.05(b) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
SECTION 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, a trust company,
a bank or a banking association: (i) organized and doing business under the laws
of the United States of America or any State thereof or the District of
Columbia; (ii) authorized under such laws to exercise trust powers; (iii) having
a combined capital and surplus of at least $[50,000,000.00] (iv) subject to
supervision or examination by federal or state authority; and (v) whose
long-term senior unsecured debt (or that of its fiscal agent) is rated not less
than "_____" by ______ and "_____" by _____ (or, in the case of [each] Rating
Agency, such lower ratings as would not, as confirmed in writing by such Rating
Agency, result in a qualification, downgrade or withdrawal of any of the
then-current ratings assigned by such Rating Agency to the Certificates). If
such corporation, trust company, bank or banking association publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section 8.06, the combined capital and surplus of such corporation, trust
company, bank or banking association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. No
Person shall become a successor trustee hereunder if the succession of such
Person would result in a qualification, downgrading or withdrawal of any of the
ratings then assigned by the Rating Agencies to the Certificates. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07. The corporation, trust company, bank or
banking association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Mortgage Loan Seller, the Master Servicer,
the Special Servicer, the REMIC Administrator and their respective Affiliates.
SECTION 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
and to all Certificateholders. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor trustee acceptable to the Master
Servicer by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee and to the successor trustee. A copy of such
instrument shall be delivered to the Mortgage Loan Seller, the Master Servicer,
the Special Servicer, the REMIC Administrator and the Certificateholders by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or the Master Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 33 1/3% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed; provided that the
Master Servicer, the Depositor and the remaining Certificateholders shall have
been notified; and provided further that other Holders of the Certificates
entitled to a greater percentage of the Voting Rights shall not have objected to
such removal in writing to the Master Servicer and the Depositor within 30 days
of their receipt of notice thereof. A copy of such instrument shall be delivered
to the Depositor, the Mortgage Loan Seller, the Special Servicer, the REMIC
Administrator and the remaining Certificateholders by the Master Servicer.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08; and no such resignation or removal of the Trustee
and/or appointment of a successor trustee shall be permitted, unless, as
confirmed in writing by each Rating Agency, such resignation or removal and
appointment would not result in the qualification, downgrading or withdrawal of
the rating assigned by either Rating Agency to any Class of Certificates.
SECTION 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer, the REMIC Administrator 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 the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files and related documents and statements at
the time held on its behalf by a Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder. If such predecessor trustee was removed as Trustee under this
Agreement without cause, the cost of any such execution, delivery or action
shall be at the expense of the Trust.
(b) No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Master Servicer shall mail notice of the succession of
such trustee hereunder to the Depositor and the Certificateholders. If the
Master Servicer fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Master Servicer.
SECTION 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with which
it may be consolidated or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding to
the corporate trust business of the Trustee shall be the successor of the
Trustee hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided that the Trustee shall continue to be eligible under
the provisions of Section 8.06. The successor to the Trustee shall promptly
notify in writing each of the other parties hereto, the Certificateholders and
the Rating Agencies of any such merger, conversion, consolidation or succession
to business.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in case an Event of Default in respect of the Master
Servicer shall have occurred and be continuing, the Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 hereunder and no notice to Holders of Certificates of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(e) The appointment of a co-trustee or separate trustee under this Section
8.10 shall not relieve the Trustee of its duties, responsibilities or
liabilities hereunder.
SECTION 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint one or
more Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee; provided that if the Custodian is an Affiliate of the Trustee such
consent of the Master Servicer need not be obtained and the Trustee shall
instead notify the Master Servicer of such appointment. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus (or shall have its performance
guaranteed by an Affiliate with a combined capital and surplus) of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage File and shall not be the Depositor, the Mortgage Loan Seller
or any Affiliate of any of them. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its duties, liabilities or obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian.
SECTION 8.12 Access to Certain Information.
(a) The Trustee shall provide or cause to be provided to the Depositor, the
Master Servicer, the Special Servicer and the Rating Agencies, and to the OTS,
the FDIC, and any other federal or state banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to the
Mortgage Files and any other documentation regarding the Mortgage Loans and the
Trust Fund, that is within its control which may be required by this Agreement
or by applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it.
(b) Promptly following the first sale of any Non-Registered Certificate to
an Independent third party, the Depositor shall provide to the Trustee
______copies of any private placement memorandum or other disclosure document
used by the Depositor or its Affiliate in connection with the offer and sale of
the Class of Certificates to which such Non-Registered Certificate belongs. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof to
the Trustee, the Depositor promptly shall inform the Trustee of such event and
shall deliver to the Trustee _____ copies of the private placement memorandum or
disclosure document, as revised, amended or supplemented. The Trustee shall
maintain at its Corporate Trust Office and shall on behalf of the Depositor,
upon reasonable advance written notice, make available during normal business
hours for review by each Rating Agency and by any Certificateholder or any
Certificate Owner or any Person identified to the Trustee by a Certificateholder
or a Certificate Owner as a prospective transferee of a Certificate or interest
therein, originals or copies of the following items: (i) in the case of a Holder
or prospective transferee of a Non-Registered Certificate, any private placement
memorandum or other disclosure document relating to the Class of Certificates to
which such Non-Registered Certificate belongs, in the form most recently
provided to the Trustee; and (ii) in all cases, (A) this Agreement and the
Sub-Servicing Agreements, and any amendments hereto or thereto, (B) all
statements and reports required to be delivered to Holders of the relevant Class
of Certificates pursuant to Section 4.02(a) since the Closing Date, (C) all
reports delivered to the Trustee since the Closing Date pursuant to Section
4.02(b) and Section 4.02(c), (D) all Officer's Certificates delivered to the
Trustee since the Closing Date pursuant to Section 3.13, (E) all accountants'
reports delivered to the Trustee since the Closing Date pursuant to Section
3.14, (F) the most recent inspection report, together with any related
additional written or electronic information, prepared or obtained by, or on
behalf of, the Master Servicer or Special Servicer, as the case may be, and
delivered to the Trustee in respect of each Mortgaged Property pursuant to
Section 3.12(a), (G) all Mortgagor financial statements and Mortgaged Property
operating statements and rent rolls, together with any related additional
written or electronic information, delivered to the Trustee by the Master
Servicer or the Special Servicer pursuant to Section 3.12(b), (H) any and all
notices and reports delivered to the Trustee with respect to any Mortgaged
Property securing a defaulted Mortgage Loan as to which the environmental
testing contemplated by Section 3.09(c) revealed that either of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof was not
satisfied or that any remedial, corrective or other further action contemplated
in such clauses is required (but only for so long as such Mortgaged Property or
the related Mortgage Loan is part of the Trust Fund), and (I) all documents
constituting the Mortgage Files, including, without limitation, any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but, in each case, only for so long as the related
Mortgage Loan is part of the Trust Fund). Copies of any and all of the foregoing
items are to be available from the Trustee upon request; however, the Trustee
shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such service.
In connection with providing access to or copies of the items described in
the immediately preceding paragraph of this Section 8.12(b), the Trustee may
require, unless the Depositor directs otherwise, (i) in the case of Certificate
Owners, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a beneficial holder of Certificates and will keep such information
confidential and (ii) in the case of any prospective purchaser of a Certificate
or, in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a prospective purchaser of a Certificate or a beneficial ownership interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates, shall
be deemed to have agreed to keep such information confidential, except to the
extent that the Depositor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
SECTION 8.13 Filings with the Securities and Exchange Commission.
The Trustee shall, at the expense of the Depositor, prepare for filing,
execute and properly file with the Commission, any and all reports, statements
and information, including, without limitation, Distribution Date Statements,
Delinquent Loan Status Reports, REO Status Reports, Historical Loan Modification
Reports, Special Servicer Loan Status Reports, Historical Loss Reports and
Operating Statement Analyses, respecting the Trust Fund and/or the Certificates
required or specifically provided herein to be filed on behalf of the Trust
under the Exchange Act; provided that such items shall have been received by the
Trustee (to the extent not generated by the Trustee) in the format required for
electronic filing via the ▇▇▇▇▇ system; and provided, further, that any such
items that are required to be delivered by the Master Servicer or the Special
Servicer to the Trustee shall be so delivered in the format required for
electronic filing via the ▇▇▇▇▇ 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 ▇▇▇▇▇-compatible format nor shall it have any
responsibility to convert any items to such format. The Depositor shall promptly
file, and exercise its reasonable best efforts to obtain a favorable response
to, no-action requests to, or requests for other appropriate exemptive relief
from, the Commission regarding the usual and customary exemption from certain
reporting requirements granted to issuers of securities similar to the
Certificates.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Mortgage
Loans.
Subject to Section 9.02, the Trust and the respective obligations and
responsibilities under this Agreement of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator (other than the obligations of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by or on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (i) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) of all Mortgage Loans and
each REO Property remaining in REMIC I at a price (to be calculated by the
Master Servicer and the Trustee as of the close of business on the third
Business Day preceding the date upon which notice of any such purchase is
furnished to Certificateholders pursuant to the third paragraph of this Section
9.01 and as if the purchase was to occur on such Business Day) equal to (A) the
aggregate Purchase Price of all the Mortgage Loans included in REMIC I, plus (B)
the appraised value of each REO Property, if any, included in REMIC I (such
appraisal to be conducted by a Qualified Appraiser selected by the Master
Servicer and approved by the Trustee), minus (C) if such purchase is being made
by the Master Servicer, the aggregate amount of unreimbursed Advances made by
the Master Servicer, together with any Advance Interest payable to the Master
Servicer in respect of such Advances and any unpaid Master Servicing Fees
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase), and (ii)
the final payment or other liquidation (or any Advance with respect thereto) of
the last Mortgage Loan or REO Property remaining in REMIC I; provided, however,
that in no event shall the trust created hereby continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
The Majority Certificateholder of the Controlling Class (other than the
Depositor or the Mortgage Loan Seller) has the right, and if the Majority
Certificateholder of the Controlling Class fails to exercise such right, the
Master Servicer has the right, to purchase all of the Mortgage Loans and each
REO Property remaining in REMIC I as contemplated by clause (i) of the preceding
paragraph by giving written notice to the other parties hereto no later than 60
days prior to the anticipated date of purchase; provided, however, that the
Master Servicer and any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) each may so elect to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.0% of the Initial Pool Balance. In the event
that the Master Servicer or any Majority Certificateholder of the Controlling
Class (other than the Depositor or the Mortgage Loan Seller) elects to purchase
all of the Mortgage Loans and each REO Property remaining in REMIC I in
accordance with the preceding sentence, the Master Servicer or such Majority
Certificateholder, as applicable, shall deposit in the Distribution Account not
later than the Master Servicer Remittance Date relating to the Distribution Date
on which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the above-described purchase price
(exclusive of any portion thereof payable to any Person other than the
Certificateholders pursuant to Section 3.05(a), which portion shall be deposited
in the Certificate Account). In addition, the Master Servicer shall transfer all
amounts required to be transferred to the Distribution Account on such Master
Servicer Remittance Date from the Certificate Account pursuant to the first
paragraph of Section 3.04(b). Upon confirmation that such final deposits have
been made, the Trustee shall release or cause to be released to the purchaser or
its designee, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
the purchaser, as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in REMIC I.
Notice of any termination shall be given promptly by the Trustee by letter
to Certificateholders and, if not previously notified pursuant to the preceding
paragraph, to the other parties hereto mailed (a) in the event such notice is
given in connection with a purchase by the Master Servicer or any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) of all of the Mortgage Loans and each REO Property
remaining in REMIC I, not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of the final distribution on the
Certificates or (b) otherwise during the month of such final distribution on or
before the 5th day of such month, in each case specifying (i) the Distribution
Date upon which the Trust will terminate and final payment on the Certificates
will be made, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the offices of the Certificate Registrar or such other location therein
designated.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount for such date that is allocable to payments on the relevant
Class in accordance with Section 4.01(a).
Any funds not distributed to any Holder or Holders of Certificates of any
Class on the Final Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, the Class R-I Certificateholders shall be entitled to all
unclaimed funds and other assets which remain subject thereto.
SECTION 9.02 Additional Termination Requirements.
(a) In the event the Master Servicer or a Majority Certificateholder of the
Controlling Class (other than the Depositor or the Mortgage Loan Seller)
purchases all of the Mortgage Loans and each REO Property remaining in REMIC I
as provided in Section 9.01, the Trust (and, accordingly, REMIC I and REMIC II)
shall be terminated in accordance with the following additional requirements,
unless the Master Servicer or such Majority Certificateholder, as applicable,
obtains at its own expense and delivers to the Trustee and the REMIC
Administrator an Opinion of Counsel, addressed to the Trustee and the REMIC
Administrator, to the effect that the failure of the Trust to comply with the
requirements of this Section 9.02 will not result in the imposition of taxes on
"prohibited transactions" of REMIC I or REMIC II as defined in Section 860F of
the Code or cause REMIC I or REMIC II to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each of REMIC I and REMIC II pursuant to Treasury regulation
Section 1.860F-1;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee
shall sell all of the assets of REMIC I to the Master Servicer or the
Majority Certificateholder of the Controlling Class, as applicable, for
cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the applicable Class of
Residual Certificates all cash on hand (other than cash retained to
meet claims), and each of REMIC I and REMIC II shall terminate at that
time.
(b) By their acceptance of Certificates, the Holders thereof hereby agree
to authorize the REMIC Administrator to adopt a plan of complete liquidation of
each of REMIC I and REMIC II in accordance with the terms and conditions of this
Agreement, which authorization shall be binding upon all successor
Certificateholders.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I and REMIC
II as a REMIC under the Code and, if necessary, under Applicable State Law. Each
such election will be made on Form 1066 or other appropriate federal or state
Tax Returns for the taxable year ending on the last day of the calendar year in
which the Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the Class
R-I Certificates are hereby designated as the sole class of "residual interests"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC I. The Class X,
Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J and Class K Certificates are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the Class
R-II Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
None of the REMIC Administrator, the Master Servicer, the Special Servicer or
the Trustee shall, to the extent it is within the control of such Person, create
or permit the creation of any other "interests" in either REMIC I or REMIC II
(within the meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of each of
REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code.
(d) The REMIC Administrator is hereby designated as agent for the Tax
Matters Person of each of REMIC I and REMIC II and shall: act on behalf of the
Trust in relation to any tax matter or controversy, represent the Trust in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority, request an administrative adjustment as to any
taxable year of REMIC I or REMIC II, seek private letter rulings from the IRS in
accordance with Section 10.01(g), enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of REMIC I or REMIC II, and otherwise act on behalf of each of REMIC I
and REMIC II in relation to any tax matter or controversy involving such REMIC.
By their acceptance thereof, the Holders of the Residual Certificates hereby
agree to irrevocably appoint the REMIC Administrator as their agent to perform
all of the duties of the Tax Matters Person for REMIC I and REMIC II. Subject to
Section 10.01(h), the legal expenses and costs of any action described in this
subsection (d) and any liability resulting therefrom shall be expenses, costs
and liabilities of the Trust, and the REMIC Administrator shall be entitled to
be reimbursed therefor out of any amounts on deposit in the Distribution Account
as provided by Section 3.05(b).
(e) The REMIC Administrator shall prepare and file, and the Trustee shall
sign, all of the Tax Returns in respect of each of REMIC I and REMIC II. The
expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor.
(f) The REMIC Administrator shall perform on behalf of each of REMIC I and
REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the IRS or any other taxing authority under
Applicable State Law. Included among such duties, the REMIC Administrator shall
provide to: (i) any Transferor of a Residual Certificate, such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any Person who is not both a Permitted Transferee and a United
States Person; (ii) the Certificateholders, such information or reports as are
required by the Code or the REMIC Provisions, including, without limitation,
reports relating to interest, original issue discount and market discount or
premium (using the Prepayment Assumption as required); and (iii) the IRS, the
name, title, address and telephone number of the Person who will serve as the
representative of each of REMIC I and REMIC II.
(g) The REMIC Administrator shall perform its duties more specifically set
forth hereunder in a manner consistent with maintaining the status of each of
REMIC I and REMIC II as a REMIC under the REMIC Provisions (and each of the
other parties hereto shall assist it, to the extent reasonably requested by it).
The REMIC Administrator shall not knowingly take (or cause either REMIC I or
REMIC II to take) any action or fail to take (or fail to cause to be taken) any
action within the scope of its duties more specifically set forth hereunder
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could result in an Adverse REMIC Event with respect to either such REMIC, unless
the REMIC Administrator has received an Opinion of Counsel or an IRS private
letter ruling to the effect that the contemplated action will not result in an
Adverse REMIC Event. None of the other parties hereto shall take any action
(whether or not authorized hereunder) as to which the REMIC Administrator has
advised it in writing that it has received an Opinion of Counsel or an IRS
private letter ruling to the effect that an Adverse REMIC Event could occur with
respect to such action. In addi|ion, prior to taking any action with respect to
REMIC I or REMIC II, or causing REMIC I or REMIC II to take any action, that is
not expressly permitted under the terms of this Agreement, each of the other
parties hereto will consult with the REMIC Administrator, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur. None
of the parties hereto shall take any such action or cause REMIC I or REMIC II to
take any such action as to which the REMIC Administrator has advised it in
writing that an Adverse REMIC Event could occur. The REMIC Administrator may
consult with counsel or seek an IRS private letter ruling to make such written
advice, and the cost of same shall be borne: (i) if such action that is not
expressly permitted by this Agreement would be of a material benefit to or
otherwise in the best interests of the Certificateholders as a whole, by the
Trust and shall be paid by the Trustee at the direction of the REMIC
Administrator out of amounts on deposit in the Distribution Account; and (ii)
otherwise by the party seeking to take the action not permitted by this
Agreement. Without limiting the respective duties and obligations of the parties
hereto, the parties hereto may act hereunder in reliance on any IRS private
letter ruling so obtained by the REMIC Administrator.
(h) In the event that any tax is imposed on REMIC I or REMIC II, including,
without limitation, "prohibited transactions" taxes as defined in Section
860F(a)(2) of the Code, any 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 any tax permitted to be incurred by the Special Servicer
pursuant to Section 3.17(a)), such tax, together with all incidental costs and
expenses (including, without limitation, penalties and reasonable attorneys'
fees), shall be charged to and paid by: (i) the REMIC Administrator, if such tax
arises out of or results from a breach by the REMIC Administrator of any of its
obligations under this Article X; (ii) the Trustee, if such tax arises out of or
results from a breach by the Trustee of any of its obligations under this
Article X; (iii) the Master Servicer, if such tax arises out of or results from
a breach by the Master Servicer of any of its obligations under Article III or
this Article X; (iv) the Special Servicer, if such tax arises out of or results
from a breach by the Special Servicer of any of its obligations under Article
III or this Article X; or (v) the Trust in all other instances. Any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)
shall be charged to and paid by the Trust. Any such amounts payable by the Trust
in respect of taxes shall be paid by the Trustee at the direction of the REMIC
Administrator out of amounts on deposit in the Distribution Account.
(i) The REMIC Administrator and, to the extent that records are maintained
thereby in the normal course of its business, each of the other parties hereto
shall, for federal income tax purposes, maintain books and records with respect
to each of REMIC I and REMIC II on a calendar year and on an accrual basis.
(j) Following the Startup Day therefor, the Trustee shall not accept any
contributions of assets to REMIC I or REMIC II unless it shall have received an
Opinion of Counsel (at the expense of the party seeking to cause such
contribution) to the effect that the inclusion of such assets in such REMIC will
not cause: (i) such REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding; or (ii) the imposition of any tax on such REMIC
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
(k) None of the REMIC Administrator, the Master Servicer, the Special
Servicer or the Trustee shall consent to or, to the extent it is within the
control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of the Mortgage Loan Seller regarding the Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default of a Mortgage Loan, including but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed-in-lieu of foreclosure, (C)
the bankruptcy of REMIC I or REMIC II, or (D) the termination of the Trust
pursuant to Article IX of this Agreement); (ii) the sale or disposition of any
investments in the Certificate Account or the REO Account for gain; or (iii) the
acquisition of any assets for the Trust Fund (other than a Mortgaged Property
acquired through foreclosure, deed-in-lieu of foreclosure or otherwise in
respect of a defaulted Mortgage Loan and other than Permitted Investments
acquired in connection with the investment of funds in the Certificate Account
or the REO Account); in any event unless it has received an Opinion of Counsel
(from and at the expense of the party seeking to cause such sale, disposition,
or acquisition) to the effect that such sale, disposition, or acquisition will
not cause: (x) REMIC I or REMIC II to fail to qualify as a REMIC at any time
that any Certificates are outstanding; or (y) the imposition of any tax on REMIC
I or REMIC II under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(l) Except as otherwise permitted by Section 3.17(a), none of the REMIC
Administrator, the Master Servicer, the Special Servicer or the Trustee shall
enter into any arrangement by which REMIC I or REMIC II will receive a fee or
other compensation for services or, to the extent it is within the control of
such Person, permit REMIC I or REMIC II to receive any income from assets other
than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code. At all
times as may be required by the Code, the REMIC Administrator shall make
reasonable efforts to ensure that substantially all of the assets of REMIC I and
REMIC II will consist of "qualified mortgages" as defined in Section 860G(a)(3)
of the Code and "permitted investments" as defined in Section 860G(a)(5) of the
Code.
SECTION 10.02 Depositor, Master Servicer, Special Servicer and Trustee to
Cooperate with REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the REMIC
Administrator, within ten (10) days after the Closing Date, all information or
data that the REMIC Administrator reasonably determines to be relevant for tax
purposes as to the valuations and issue prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected cash
flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information, and access to such books
and records maintained thereby, as may relate to the Certificates or the Trust
Fund and as shall be reasonably requested by the REMIC Administrator in order to
enable it to perform its duties hereunder.
SECTION 10.03 Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not the same
Person, the Trustee covenants and agrees to pay to the REMIC Administrator from
time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by it in the exercise and
performance of any of the obligations and duties of the REMIC Administrator
hereunder.
SECTION 10.04 Use of Agents.
The REMIC Administrator may execute any of its obligations and duties
hereunder either directly or by or through agents or attorneys-in-fact consented
to by the Trustee, which consent shall not be unreasonably withheld; provided
that the REMIC Administrator shall not be relieved of its liabilities, duties
and obligations hereunder by reason of the use of any such agent or
attorney-in-fact.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual agreement
of the parties hereto, without the consent of any of the Certificateholders, (i)
to cure any ambiguity, (ii) to correct, modify or supplement any provision
herein which may be defective or may be inconsistent with any other provision
herein, (iii) to add any other provisions with respect to matters or questions
arising hereunder which shall not be inconsistent with the provisions hereof,
(iv) to relax or eliminate any requirement hereunder imposed by the REMIC
Provisions if the REMIC Provisions are amended or clarified such that any such
requirement may be relaxed or eliminated; (v) if such amendment, as evidenced by
an Opinion of Counsel delivered to the Trustee and the REMIC Administrator, is
reasonably necessary to comply with any requirements imposed by the Code or any
successor or amendatory statute or any temporary or final regulation, revenue
ruling, revenue procedure or other written official announcement or
interpretation relating to federal income tax laws or any such proposed action
which, if made effective, would apply retroactively to REMIC I or REMIC II at
least from the effective date of such amendment, or would be necessary to avoid
the occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of REMIC I
or REMIC II; (vi) to modify, add to or eliminate any provisions of Section
5.02(d)(i), (ii) and (iii) as provided in Section 5.02(d)(iv); or (vii) for any
other purpose; provided that such amendment (other than any amendment for the
specific purposes described in clauses (v) and (vi) above) shall not, as
evidenced by an Opinion of Counsel obtained by or delivered to the Trustee,
adversely affect in any material respect the interests of any Certificateholder
without such Certificateholder's written consent; and provided further that such
amendment (other than any amendment for any of the specific purposes described
in clauses (i) through (vi) above) shall not result in a downgrade,
qualification or withdrawal of any rating then assigned to any Class of
Certificates by either Rating Agency (as evidenced by written confirmation to
such effect from each Rating Agency obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto, with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on the Mortgage Loans and any REO Properties
which are required to be distributed on any Certificate without the written
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (b)(i) without the written consent of the
Holders of all Certificates of such Class, or (iii) modify the provisions of
this Section 11.01 without the written consent of the Holders of all
Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer or any of their
respective Affiliates shall be entitled to the same Voting Rights with respect
to matters described above as they would if any other Person held such
Certificates.
(c) Notwithstanding any contrary provision of this Agreement, neither the
Trustee nor the REMIC Administrator shall consent to any amendment to this
Agreement unless it shall first have obtained or been furnished with an Opinion
of Counsel to the effect that such amendment or the exercise of any power
granted to any party hereto in accordance with such amendment will not result in
the imposition of a tax on REMIC I or REMIC II pursuant to the REMIC Provisions
or cause REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
(d) Promptly after the execution of any such amendment, the Trustee shall
furnish a copy of the amendment to each Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe; provided that such consents shall be
in writing.
(f) The Trustee may but shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to Section
11.01(a) or (c) shall be borne by the Person seeking the related amendment,
except that if the Trustee requests any amendment of this Agreement in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Distribution Account.
SECTION 11.02 Recordation of Agreement; Counterparts.
(a) To the extent pezmitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer at the expense of the Trust on direction by the Trustee, but
only upon direction accompanied by an Opinion of Counsel (the reasonable cost of
which may be paid out of the Distribution Account) to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement or any Mortgage Loan, unless,
with respect to any suit, action or proceeding upon or under or with respect to
this Agreement, such Holder previously shall have given to the Trustee a written
notice of default hereunder, and of the continuance thereof, as hereinbefore
provided, and (except in the case of a default by the Trustee) the Holders of
Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance with
the internal laws of the State of New York applicable to agreements made and to
be performed in said State, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 11.05 Notices.
Any communications provided for or permitted hereunder shall be in writing
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given when delivered to: (1) in the case of the Depositor, NationsLink
Funding Corporation, NationsBank Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention _________________, telecopy number:
(704)________________ (with copies to ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Assistant General
Counsel, NationsBank Corporation, NationsBank Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇), ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy number: (704)
386-6453; (2) in the case of the Mortgage Loan Seller,
_______________________________________________________________________________
_______________________________________________________________________________
Attention: ____________________, telecopy number: __________________; (3) in the
case of the Master Servicer, ________________________________ Attention:
______________________, telecopy number (____) _______________________; (4) in
the case of the Special Servicer, ________________________________ Attention:
______________________, telecopy number (____) _______________________; (with a
copy to the attention of _______________________. at such address); (5) in the
case of the Trustee, ________________________________ Attention:
______________________, telecopy number (____) _______________________; (6) in
the case of the REMIC Administrator, ________________________________ Attention:
______________________, telecopy number (____) _______________________; (7) in
the case of the Rating [Agencies, (A)]
____________________________________________________________________________,
Attention: ___________________________________, telecopy number
____________________________________________________________________; [and (B)
____________________________________________________________________, Attention:
______________________________________, telecopy number: ________________;] or
as to each such Person such other address as may hereafter be furnished by such
Person to the parties hereto in writing. Any communication required or permitted
to be delivered to a Certificateholder shall be deemed to have been duly given
when mailed first class, postage prepaid, to the address of such Holder as shown
in the Certificate Register.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto, and all
such provisions shall inure to the benefit of the Certificateholders. Except as
specifically contemplated by Sections 3.22, 3.24, 6.03 and 8.05, no other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.08 Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09 Notices to the Rating [Agencies].
(a) The Trustee shall promptly provide notice to each Rating Agency with
respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default hereunder that has not
been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
(iv) any change in the location of the Distribution Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by the Mortgage Loan Seller
pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to [each] Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of a
successor;
(ii) any change in the location of the Certificate Account;
[(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;]
(iv) any material casualty at or condemnation or eminent domain
proceeding in respect of a Mortgaged Property; and
(v) the vacating by an anchor tenant of a retail Mortgaged Property.
(c) Each of the Master Servicer and the Special Servicer, as the case may
be, shall furnish to each Rating Agency such information with respect to the
Mortgage Loans as the Rating Agency shall reasonably request and which the
Master Servicer or the Special Servicer, as the case may be, can reasonably
provide.
(d) Each of the Master Servicer and the Special Servicer shall promptly
furnish to [each] Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14, if any.
In addition, upon request, each of the Master Servicer and the Special Servicer
shall promptly furnish to each Rating Agency copies or summaries (in such format
as will be acceptable to the Rating Agency) of any of the written reports
(including, without limitation, reports regarding property inspections)
prepared, and any of the quarterly and annual operating statements, rent rolls
and financial statements collected, by it pursuant to Section 3.12(b).
(e) The Trustee shall promptly furnish to each Rating Agency on a monthly
basis copies of the statements to the Holders of the REMIC II Regular
Certificates required by the first paragraph of Section 4.02(a).
(f) To the extent reasonably possible, all information and reports
delivered or made available to the Rating Agencies by any of the Trustee, the
Master Servicer or the Special Servicer pursuant to this Section 11.09, shall be
so delivered or otherwise made available through an electronic medium.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective officers or representatives thereunto duly
authorized, in each case as of the day and year first above written.
NATIONSLINK FUNDING CORPORATION
Depositor
By:_____________________________
Name:
Title:
________________________________
Mortgage Loan Seller
By:_____________________________
Name:
Title:
________________________________
Master Servicer
By:_____________________________
Name:
Title:
________________________________
Special Servicer
By:_____________________________
Name:
Title:
________________________________
Trustee
By:_____________________________
Name:
Title:
________________________________
REMIC Administrator
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of _______________, 199__, before me, a notary public in
and for said State, personally appeared ________________ known to me to be a
___________ of NATIONSLINK FUNDING CORPORATION [one of] the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of _____________, 199__, before me, a notary public in and
for said State, personally appeared ________________ known to me to be a
_______________ of ___________________________________, [one of] the _________
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such _______, and acknowledged to me that such ______
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the ______ day of ___________________, 199__, before me, a notary public
in and for said State, personally appeared ___________________ known to me to be
a _______________________ of ___________________________________ [one of] the
_______ that executed the within instrument, and also known to me to be the
person who executed it as an officer of the __________ on behalf of such
________, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the ______ day of _____________________, 199___, before me, a notary
public in and for said State, personally appeared ___________________ known to
me to be a ___________________________ of
_______________________________________________ one of the _______ that executed
the within instrument, and also known to me to be the person who executed it as
an officer of the general partner on behalf of such ______, and acknowledged to
me that such ______ executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the ______ day of _______________, 199__, before me, a notary public in
and for said State, personally appeared ___________________ known to me to be a
__________________________ of ________________________________________________,
[one of] the_______ that executed the within instrument, and also known to me to
be the person who executed it on behalf of such ______, and acknowledged to me
that such _________ executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of ____________________, 199__, before me, a notary public
in and for said State, personally appeared ________________ known to me to be a
_________________ of _________________________________________________, [one of]
the _________ that executed the within instrument, and also known to me to be
the person who executed it on behalf of such ______, and acknowledged to me that
such _______ executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of _______________________, 199__, before me, a notary
public in and for said State, personally appeared ________________ known to me
to be a _________________ of __________________________________, and
_________________ known to me to be a ______________ of
__________________________________, one of the _________ that executed the
within instrument, and also known to me to be the persons who executed it on
behalf of such ______, and acknowledged to me that such _______ executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]