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CRIIMI MAE CMBS CORP.,
Depositor
and
-------------------------------,
Master Servicer
and
-------------------------------,
Special Servicer
and
-------------------------------,
Trustee and REMIC Administrator
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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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TABLE OF CONTENTS
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Section Page
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ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS
IN RESPECT OF THE MORTGAGE POOL
1.01. Defined Terms..........................................................5
1.02. Certain Calculations in Respect of the Mortgage Pool..................46
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES;ORIGINAL ISSUANCE OF CERTIFICATES
2.01. Conveyance of Mortgage Loans..........................................48
2.02. Acceptance of REMIC I by Trustee......................................50
2.03. Certain Repurchases of Mortgage Loans by the Mortgage Loan Seller.....52
2.04. Representations and Warranties of the Depositor.......................53
2.05. Representations and Warranties of the Master Servicer.................54
2.06. Representations and Warranties of the Special Servicer................56
2.07. Representations, Warranties and Covenants of the Trustee and the
REMIC Administrator...................................................58
2.08. [RESERVED]............................................................60
2.09. Execution, Authentication and Delivery of Class R-I Certificates;
Creation of REMIC I Regular Interests.................................60
2.10. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by
Trustee ..............................................................60
2.11. Execution, Authentication and Delivery of Class R-II Certificates;
Creation of REMIC II Regular Interests................................60
2.12. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III
by Trustee............................................................61
2.13. Execution, Authentication and Delivery of REMIC III Certificates......61
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
3.01. Administration of the Mortgage Loans..................................62
3.02. Collection of Mortgage Loan Payments..................................63
3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts..................................63
3.04. Collection Account and Distribution Account...........................65
3.05. Permitted Withdrawals From the Collection Account and the
Distribution Account..................................................68
3.06. Investment of Funds in the Collection Account and the REO Account.....72
3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity
Coverage .............................................................74
3.08. Enforcement of Alienation Clauses.....................................76
3.09. Realization Upon Defaulted Mortgage Loans.............................77
3.10. Trustee to Cooperate; Release of Mortgage Files.......................80
3.11. Servicing Compensation; Interest on Servicing Advances; Payment of
Certain Expenses; Obligations of the Trustee regarding Back-up
Servicing Advances ...................................................81
3.12. Property Inspections; Collection of Financial Statements; Delivery of
Certain Reports.......................................................85
3.13. Annual Statement as to Compliance.....................................86
3.14. Reports by Independent Public Accountants.............................86
3.15. Access to Certain Information.........................................87
3.16. Title to REO Property; REO Account....................................87
3.17. Management of REO Property............................................89
3.18. Sale of Mortgage Loans and REO Properties.............................92
3.19. Additional Obligations of Master Servicer.............................95
3.20. Modifications, Waivers, Amendments and Consents.......................97
3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping..............................................99
3.22. Sub-Servicing Agreements.............................................101
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
4.01. Distributions........................................................104
4.02. Statements to Certificateholders; Certain Other Reports..............114
4.03. P&I Advances.........................................................116
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4.04. Allocation of Realized Losses and Extraordinary Expenses.............118
4.05. Calculations.........................................................119
4.06. Use of Agents........................................................119
ARTICLE V
THE CERTIFICATES
5.01. The Certificates.....................................................120
5.02. Registration of Transfer and Exchange of Certificates................121
5.03. Book-Entry Certificates..............................................126
5.04. Mutilated, Destroyed, Lost or Stolen Certificates....................128
5.05. Persons Deemed Owners................................................128
5.06. Certification by Certificate Owners..................................128
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
6.01. Liability of the Depositor, the Master Servicer, the Special Servicer
and the REMIC Administrator..........................................130
6.02. Merger, Consolidation or Conversion of the Depositor, the Master
Servicer, the Special Servicer or the REMIC Administrator............130
6.03. Limitation on Liability of the Depositor, the Master Servicer,
the Special Servicer and the REMIC Administrator.....................131
6.04. Master Servicer, Special Servicer and REMIC Administrator Not to
Resign ..............................................................132
6.05. Rights of the Depositor and the Trustee in Respect of the Master
Servicer, the Special Servicer and the REMIC Administrator...........132
6.06. [RESERVED]...........................................................133
6.07. Master Servicer or Special Servicer as Owner of a Certificate........132
ARTICLE VII
DEFAULT
7.01. Events of Default....................................................135
7.02. Trustee to Act; Appointment of Successor.............................139
7.03. Notification to Certificateholders...................................140
7.04. Waiver of Events of Default..........................................140
7.05. Additional Remedies of Trustee Upon Event of Default.................141
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7.06. Advance Collateral Fund for Trustee..................................141
ARTICLE VIII
CONCERNING THE TRUSTEE
8.01. Duties of Trustee....................................................143
8.02. Certain Matters Affecting Trustee....................................145
8.03. Trustee not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans ......................................................146
8.04. Trustee May Own Certificates.........................................147
8.05. Fees and Expenses of Trustee; Indemnification of Trustee and the
REMIC Administrator..................................................147
8.06. Eligibility Requirements for Trustee.................................148
8.07. Resignation and Removal of Trustee...................................149
8.08. Successor Trustee....................................................150
8.09. Merger or Consolidation of Trustee...................................150
8.10. Appointment of Co-Trustee or Separate Trustee........................151
8.11. Appointment of Custodians............................................152
8.12. Access to Certain Information........................................152
ARTICLE IX
TERMINATION
9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans.....155
9.02. Additional Termination Requirements..................................157
ARTICLE X
ADDITIONAL REMIC PROVISIONS
10.01. REMIC Administration................................................159
10.02. Depositor, Master Servicer, Special Servicer and Trustee to
Cooperate with REMIC Administrator..................................163
10.03. Indemnification by Trustee, REMIC Administrator, Master Servicer
and Special Servicer................................................163
10.04. Fees of the REMIC Administrator.....................................163
10.05. Use of Agents.......................................................164
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ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01. Amendment...........................................................165
11.02. Recordation of Agreement; Counterparts..............................165
11.03. Limitation on Rights of Certificateholders..........................166
11.04. Governing Law.......................................................167
11.05. Notices.............................................................168
11.06. Severability of Provisions..........................................168
11.07. Successors and Assigns; Beneficiaries...............................169
11.08. Article and Section Headings........................................169
11.09. Notices to Rating Agencies..........................................169
11.10. Complete Agreement..................................................170
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EXHIBITS
EXHIBIT A-1 Form of Class S Certificate
EXHIBIT A-2 Form of Class A-1A Certificate
EXHIBIT A-3 Form of Class A-1B Certificate
EXHIBIT A-4 Form of Class A-2 Certificate
EXHIBIT A-5 Form of Class A-3 Certificate
EXHIBIT A-6 Form of Class B-1 Certificate
EXHIBIT A-7 Form of Class B-2 Certificate
EXHIBIT A-8 Form of Class B-3 Certificate
EXHIBIT A-9 Form of Class B-4 Certificate
EXHIBIT A-10 Form of Class C Certificate
EXHIBIT A-11 Form of Class R-I Certificate
EXHIBIT A-12 Form of Class R-II Certificate
EXHIBIT A-13 Form of Class R-III Certificate
EXHIBIT B-1 Mortgage Loan Schedule
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT C Letter of Representations among Depositor, Trustee and initial
Depositor
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E-1 Form of Trustee Report
EXHIBIT E-2 Form of Determination Date Report
EXHIBIT E-3 Form of Special Servicer Report
EXHIBIT E-4 Form of Operating Statement Analysis
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of Definitive
Certificates
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of Definitive
Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of Definitive
Certificates
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of Definitive
Certificates
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA
(Definitive Certificates)
EXHIBIT G-2 Form of Transferee Certificate in Connection with ERISA (Book-
Entry Certificates)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of
Residual Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Residual
Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of
Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
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EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K Calculation of Net Operating Income
EXHIBIT L-1 Information Request from Certificateholder or Certificate
Owner
EXHIBIT L-2 Information Request from Prospective Investor
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This Pooling and Servicing Agreement (this "Agreement"), is dated
and effective as of _________, 199__ (the "Cut-off Date"), among CRIIMI MAE CMBS
CORP., as Depositor, _______________, as Master Servicer, _______________, as
Special Servicer and _______________, as Trustee and REMIC Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder on ____________,
199__ (the "Closing Date") in multiple classes (each, a "Class"), which in the
aggregate will evidence the entire beneficial ownership interest in a trust fund
(the "Trust Fund") to be created hereunder.
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the Mortgage Loans (as defined herein)
and certain other related assets subject to this Agreement as a real estate
mortgage investment conduit (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 (as defined herein) under federal income
tax law. With respect to each Mortgage Loan, there shall be a corresponding
"regular interest" in REMIC I (each, a "REMIC I Regular Interest"). The
designation for each such REMIC I Regular Interest shall be the loan number for
the related Mortgage Loan set forth on the schedule of Mortgage Loans attached
hereto as Exhibit B-1. The remittance rate (the "REMIC I Remittance Rate") and
the initial stated principal amount (the initial "Uncertificated Principal
Balance") of each such REMIC I Regular Interest shall equal the Net Mortgage
Rate (as defined herein) as of the Closing Date and the Cutoff Date Balance (as
defined herein), respectively, for the related Mortgage Loan. Determined solely
for purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each such REMIC I Regular Interest shall be
the date that is the first Distribution Date (as defined herein) that follows
the Stated Maturity Date (as defined herein) for the related Mortgage Loan. None
of the REMIC I Regular Interests will be certificated.
1
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, remittance rate (the "REMIC II Remittance Rate"), the
Uncertificated Principal Balance and latest possible maturity date for each of
the "regular interests" in REMIC II (the "REMIC II Regular Interests"). None of
the REMIC II Regular Interests will be certificated.
Initial
Uncertificated
REMIC II Principal Latest Possible
Designation Remittance Rate Balance Maturity Date(2)(3)
----------- --------------- ------- -------------------
A-1A Variable(1) $
A-1B Variable(1) $
A-2 Variable(1) $
A-3 Variable(1) $
B-1 Variable(1) $
B-2 Variable(1) $
B-3 Variable(1) $
B-4 Variable(1) $
C Variable(1) $
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(1) Calculated in accordance with the definition of "REMIC II Remittance
Rate".
(2) Determined solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii).
(3) Calculated on the basis of the Maturity Assumptions (as defined herein).
2
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as REMIC III. The Class R-III Certificates will represent the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, pass-through rate (the "Pass-Through Rate"), initial aggregate
stated principal amount (the initial "Class Principal Balance") and the latest
possible maturity date for each of the Classes of Certificates or Components (as
defined herein) thereof representing "regular interests" in REMIC III.
Initial Class Latest Possible
Designation Pass-Through Rate Principal Balance Maturity Date(4)(5)
----------- ----------------- ----------------- -------------------
Component S-A1A(1) Variable(2) N/A(3)
Component S-A1B(1) Variable(2) N/A(3)
Component S-A2(1) Variable(2) N/A(3)
Component S-A3(1) Variable(2) N/A(3)
Component S-B1(1) Variable(2) N/A(3)
Component S-B2(1) Variable(2) N/A(3)
Component S-B3(1) Variable(2) N/A(3)
Component S-B4(1) Variable(2) N/A(3)
Component S-C(1) Variable(2) N/A(3)
Class A-1A % per annum $
Class A-1B % per annum $
Class A-2 % per annum $
Class A-3 % per annum $
Class B-1 % per annum $
Class B-2 % per annum $
Class B-3 % per annum $
Class B-4 % per annum $
Class C % per annum $
----------
(1) Constitutes a separate "regular interest" in REMIC III represented by the
Class S Certificates.
(2) Calculated in accordance with the definition of "Pass-Through Rate".
(3) Component S-A1A, Component S-A1B, Component S-A2, Component S-A3,
Component S-B1, Component S-B2, Component S-B3, Component S-B4 and
Component S-C will not have stated principal amounts. Rather, each will
accrue interest as provided herein on a hypothetical or notional amount (a
"Component Notional Amount") equal to: (i) in the case of Component S-A1A,
the Uncertificated Principal Balance of REMIC II Regular Interest A-1A
outstanding from time to time; (ii) in the case of Component S-A1B, the
Uncertificated Principal Balance of REMIC II Regular Interest A-1B
outstanding from time to time; (iii) in the case of Component S-A2, the
Uncertificated Principal Balance of REMIC II Regular Interest A-2
outstanding from time to time; (iv) in the case of Component S-A3, the
Uncertificated Principal Balance of REMIC II Regular Interest A-3
outstanding from time to time; (v) in the case of Component S-B1, the
Uncertificated Principal Balance of REMIC II Regular Interest B-1
outstanding from time to time; (vi) in the case of Component S-B2, the
Uncertificated Principal Balance of REMIC II Regular Interest B-2
outstanding from time to time; (vii) in the case of Component S-B3,
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the Uncertificated Principal Balance of REMIC II Regular Interest B-3
outstanding from time to time; (viii) in the case of Component S-B4, the
Uncertificated Principal Balance of REMIC II Regular Interest B-4
outstanding from time to time; and (ix) in the case of Component S-C, the
Uncertificated Principal Balance of REMIC II Regular Interest C
outstanding from time to time.
(4) Determined solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii).
(5) Calculated on the basis of the Maturity Assumptions.
The aggregate of the Cut-off Date Balances of the Mortgage Loans,
the initial aggregate of the Uncertificated Principal Balances of the REMIC I
Regular Interests, the initial aggregate of the Uncertificated Principal
Balances of the REMIC II Regular Interests and the initial aggregate of the
Class Principal Balances of the respective Classes of Certificates representing
"regular interests" in REMIC III will, in each such case, be $___________.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator agree as follows:
4
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
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 Section 1.01.
"Accrued Certificate Interest": With respect to any Class of
Sequential Pay Certificates, for any Distribution Date, one month's interest at
the Pass-Through Rate applicable to such Class of Certificates for such
Distribution Date, accrued on the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date. With
respect to the Class S Certificates, for any Distribution Date, the aggregate
of: (i) one month's interest at the Pass-Through Rate applicable to Component
S-A1A for such Distribution Date, accrued on the Component Notional Amount of
Component S-A1A outstanding immediately prior to such Distribution Date; (ii)
one month's interest at the Pass-Through Rate applicable to Component S-A1B for
such Distribution Date, accrued on the Component Notional Amount of Component
S-A1B outstanding immediately prior to such Distribution Date; (iii) one month's
interest at the Pass-Through Rate applicable to Component S-A2 for such
Distribution Date, accrued on the Component Notional Amount of Component S-A2
outstanding immediately prior to such Distribution Date; (iv) one month's
interest at the Pass-Through Rate applicable to Component S-A3 for such
Distribution Date, accrued on the Component Notional Amount of Component S-A3
outstanding immediately prior to such Distribution Date; (v) one month's
interest at the Pass-Through Rate applicable to Component S-B1 for such
Distribution Date, accrued on the Component Notional Amount of Component S-B1
outstanding immediately prior to such Distribution Date; (vi) one month's
interest at the Pass-Through Rate applicable to Component S-B2 for such
Distribution Date, accrued on the Component Notional Amount of Component S-B2
outstanding immediately prior to such Distribution Date; (vii) one month's
interest at the Pass-Through Rate applicable to Component S-B3 for such
Distribution Date, accrued on the Component Notional Amount of Component S-B3
outstanding immediately prior to such Distribution Date; (viii) one month's
interest at the Pass-Through Rate applicable to Component S-B4 for such
Distribution Date, accrued on the Component Notional Amount of Component S-B4
outstanding immediately prior to such Distribution Date; and (ix) one month's
interest at the Pass-Through Rate applicable to Component S-C for such
Distribution Date, accrued on the Component Notional Amount of Component S-C
outstanding immediately prior to such Distribution Date. Accrued Certificate
Interest shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months and, with respect to any Class of REMIC III Certificates
for any Distribution Date, shall be deemed to accrue during the applicable
Interest Accrual Period.
5
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury regulation Section 1.856-6(b)(1), which is the first day
on which the Trust Fund is treated as the owner of such REO Property for federal
income tax purposes.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Collateral Fund": The separate account established and
maintained pursuant to the Collateral Fund Custodial Agreement and Section 7.06
hereof, in the name of the Trustee for the benefit of the Certificateholders,
which account must be an Eligible Account.
"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": Either (i) the endangerment of the status of
any of REMIC I, REMIC II or REMIC III as a REMIC or (ii) the imposition of a tax
upon any of REMIC I, REMIC II or REMIC III or any of their respective 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 prohibited
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 meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
"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, either: (i) a narrative appraisal complying with USPAP conducted
by a Qualified Appraiser in the case of Mortgage Loans and REO Loans with a
Stated Principal Balance as of the date of such appraisal of greater than
$1,000,000; or (ii) a limited appraisal and a summary report of the "market
value" of the Mortgaged Property, as defined in 12 CFR ss.225.62(g), conducted
by a Qualified Appraiser 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.
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount equal to the excess, if any, of (a) as calculated on the
Determination Date immediately
6
following the date on which the most recent relevant Appraisal was obtained by
the Special Servicer pursuant to this Agreement, 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 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's Fee Rate, (iii) all
accrued but unpaid Master Servicing Fees, Property 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 (b) 90% of
an amount equal to (i) the Appraised Value of the related Mortgaged Property or
REO Property, as applicable, as determined by such Appraisal, net of (ii) the
amount of any liens on such property (not accounted for in clause (a)(v) of this
definition) that are prior to the lien of the Required Appraisal Loan.
"Appraised Value": With respect to each Mortgaged Property or REO
Property, the appraised value thereof (as is) based upon the most recent
Appraisal obtained pursuant to this Agreement but in no event based upon an
Appraisal more than 12 months old.
"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 in connection with the origination of the related
Mortgage Loan.
"Assumed Scheduled 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 such date) and for any subsequent Due Date therefor as of which such
Mortgage Loan remains outstanding and 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 Scheduled Payment that would have been due in
respect of such Mortgage Loan on such Due Date if it had been required to
continue to pay in accordance with the amortization schedule, if any, in effect
on the Closing Date, and without regard to the occurrence of its Stated Maturity
Date. 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 Scheduled Payment that would have been due in respect of
the predecessor Mortgage Loan on such Due Date had it remained outstanding (or,
if the predecessor Mortgage Loan was a Balloon Mortgage Loan and such Due Date
coincides with or follows what had been its Stated Maturity Date, the Assumed
Scheduled Payment that would have been deemed due in respect of the predecessor
Mortgage Loan on such Due Date had it remained outstanding).
7
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) all amounts on deposit in the Distribution Account
as of the commencement of business on such Distribution Date, together with any
P&I Advances and/or Compensating Interest Payments that were made on and in
respect of such Distribution Date, net of (b) any portion of the amounts
described in clause (a) of this definition that represents one or more of the
following: (i) collected Monthly Payments that are due on a Due Date following
the end of the related Collection Period, (ii) any payments of principal
(including, without limitation, Principal Prepayments) and interest, Liquidation
Proceeds and Insurance Proceeds received after the end of the related Collection
Period, (iii) Prepayment Premiums and Yield Maintenance Premiums, (iv) any
amounts payable or reimbursable to any Person from the Distribution Account
pursuant to clauses (ii) through (iv) 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 Scheduled Payment due on its
Stated Maturity Date is larger than the Scheduled Payment due on the Due Date
immediately preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Scheduled Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Bank": ______________________.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, either of the cities in which
the Primary Servicing Offices of the Master Servicer and the Special Servicer
are located or the city in which the Corporate Trust Office of the Trustee is
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.
8
"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 Factor": With respect to any Class of REMIC III Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to six 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.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that (i) neither a
Disqualified Organization nor a NonUnited States Person shall be a "Holder" of,
or a "Certificateholder" with respect to, a Residual Certificate for any purpose
hereof and, (ii) except where herein specifically stated otherwise, solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement that relates to any of the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator or the Trustee in its respective capacity as
such, any Certificate registered in the name of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator or the Trustee, as the
case may be, or any Certificate registered in the name of any of its Affiliates,
shall be deemed not to be outstanding, and the Voting Rights to which it 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 that relates to it has been obtained. The Certificate Registrar shall be
entitled to request and conclusively rely upon a certificate of the Depositor,
the Master Servicer or the Special Servicer in determining whether a Certificate
is registered in the name of an Affiliate of such Person. All references herein
to "Certificateholders" or "Holders" shall reflect the rights of Certificate
Owners only insofar as they may indirectly exercise such rights through the
Depository and the Depository Participants (except as otherwise specified
herein), it being herein acknowledged and agreed that the parties hereto shall
be required to recognize as a "Certificateholder" or "Holder" only the Person in
whose name a Certificate is registered in the Certificate Register.
"Certificate Notional Amount": With respect to any Class S
Certificate, the hypothetical or notional principal amount on which such
Certificate accrues interest from time to time, 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 S 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.
9
"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 Sequential Pay Certificates to which such Certificate
belongs.
"Certificate Register": The register maintained pursuant to Section
5.02.
"Certificate Registrar": The registrar appointed pursuant to Section
5.02.
"Certificate Yield Maintenance Amount": With respect to any
Distribution Date and any Class of Sequential Pay Certificates, the amount
calculated in the same manner as any Yield Maintenance Premium collected with
respect to a Mortgage Loan except that, for purposes of such calculation, the
Pass-Through Rate of such Class for such Distribution Date shall be used in lieu
of the related Mortgage Rate and the portion of the related prepayment of
principal distributable to such Class (calculated based upon the portion of the
Principal Distribution Amount for such Distribution Date payable in respect of
such Class) shall be used in lieu of the total prepayment.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificate": Any Class A-1A Certificate, Class A-1B
Certificate, Class A-2 Certificate or Class A-3 Certificate.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-1B Certificate": Any one of the Certificates with a "Class
A-1B" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC III 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-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
10
"Class B Certificate": Any Class B-1 Certificate, Class B-2
Certificate, Class B-3 Certificate or Class B-4 Certificate.
"Class B-1 Certificate": Any one of the Certificates with a "Class
B-1" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B-2 Certificate": Any one of the Certificates with a "Class
B-2" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B-3 Certificate": Any one of the Certificates with a "Class
B-3" designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B-4 Certificate": Any one of the Certificates with a "Class
B-4" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC III 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-10
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class Notional Amount": The aggregate hypothetical or notional
principal amount on which the Class S Certificates collectively accrue interest
from time to time, which, as of any date of determination, is equal to the
aggregate of the Component Notional Amounts for Component S-A1A, Component
S-A1B, Component S-A2, Component S-A3, Component S-B1, Component S-B2, Component
S-B3, Component S-B4 and Component S-C then outstanding (such interest accruing
at potentially different Pass-Through Rates on such Component Notional Amounts).
"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 such Class of
Certificates shall be 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 reduced on such Distribution Date as
provided in Section 4.04(a).
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
11
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class R-III Certificate": Any one of the Certificates with a "Class
R-III" designation on the face thereof, substantially in the form of Exhibit
A-13 attached hereto, and evidencing the sole class of "residual interests" in
REMIC III for purposes of the REMIC Provisions.
"Class S Certificate": Any one of the Certificates with a "Class S"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Closing Date": _____________, 199__.
"Code": The Internal Revenue Code of 1986.
"Collateral Fund Custodial Agreement": The Collateral Fund Custodial
Agreement, dated as of ______________, 199__, among the Trustee and
_________________ as Collateral Fund Custodian, pursuant to which the Advance
Collateral Fund is established and maintained.
"Collateral Fund Custodian": _________________, a _______________
organized under the laws of _________________, or its successor in interest.
"Collection Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) in trust for the
Certificateholders, which shall be entitled "_________________, as Master
Servicer, in trust for the registered holders of CRIIMI MAE CMBS Corp., Mortgage
Pass-Through Certificates, Series 199__-____".
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the prior such period (or, in the case
of the initial Collection Period, commencing immediately following the Cut-off
Date) and ending on and including the related Determination Date.
"Compensating Interest Payment": Any payment made by the Master
Servicer pursuant to Section 3.19(a) to cover Prepayment Interest Shortfalls.
"Component": Any of the nine components of the partial beneficial
ownership interest evidenced by the Class S Certificates in the Trust Fund,
designated as "Component S-A1A," "Component S-A1B," "Component S-A2", "Component
S-A3", "Component S-B1",
12
"Component S-B2", "Component S-B3", "Component S-B4" and "Component S-C",
respectively, each such component representing a separate "regular interest" in
REMIC III.
"Component Notional Amount": The hypothetical or notional principal
amount on which any of the Components of the Class S Certificates accrues
interest from time to time equal to: (1) in the case of Component S-A1A, the
Uncertificated Principal Balance of REMIC II Regular Interest A-1A outstanding
from time to time; (2) in the case of Component S-A1B, the Uncertificated
Principal Balance of REMIC II Regular Interest A-1B outstanding from time to
time; (3) in the case of Component S-A2, the Uncertificated Principal Balance of
REMIC II Regular Interest A-2 outstanding from time to time; (4) in the case of
Component S-A3, the Uncertificated Principal Balance of REMIC II Regular
Interest A-3 outstanding from time to time; (5) in the case of Component S-B1,
the Uncertificated Principal Balance of REMIC II Regular Interest B-1
outstanding from time to time; (6) in the case of Component S-B2, the
Uncertificated Principal Balance of REMIC II Regular Interest B-2 outstanding
from time to time; (7) in the case of Component S-B3, the Uncertificated
Principal Balance of REMIC II Regular Interest B-3 outstanding from time to
time; (8) in the case of Component S-B4, the Uncertificated Principal Balance of
REMIC II Regular Interest B-4 outstanding from time to time; and (9) in the case
of Component S-C, the Uncertificated Principal Balance of REMIC II Regular
Interest S-C outstanding from time to time.
"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 __________________, Attention:
_________________.
"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 the related
Mortgaged Property becoming an REO Property).
"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 or an Affiliate of the Depositor.
"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,
after application of all payments of principal due on or before such date,
whether or not received.
"Default Interest": With respect to any Mortgage Loan (or successor
REO Loan), any amounts collected thereon, other than late payment charges,
Prepayment Premiums or Yield
13
Maintenance Premiums, that represent penalty interest in excess of interest on
the principal balance of such Mortgage Loan (or successor REO Loan) accrued at
the related Mortgage Rate.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent in
an amount equal to at least two Monthly Payments (not including the Balloon
Payment) or is delinquent thirty days or more in respect of its Balloon Payment,
in either case such delinquency to be determined without giving effect to any
grace period permitted by the related Mortgage or Mortgage Note and without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note, or (ii) as to which the Special Servicer has, by written notice to the
related Mortgagor, accelerated the maturity of the indebtedness evidenced by the
related Mortgage Note.
"Definitive Certificate": As defined in Section 5.03(a).
"Depositor": CRIIMI MAE CMBS Corp., or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). 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
earlier of (i) the __th day of the month in which such Distribution Date occurs,
or if such __th day is not a Business Day, the immediately preceding Business
Day or (ii) the third Business Day preceding such Distribution Date.
"Determination Date Report": As defined in Section 4.02(b).
"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, 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
14
and insurance, or makes decisions as to repairs or capital expenditures with
respect to such REO Property.
"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 FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
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 Fund 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 III 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 the product of (i) any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date, multiplied
by (ii) a fraction, expressed as a decimal, the numerator of which is the
Accrued Certificate Interest in respect of such Class of Certificates for such
Distribution Date, and the denominator of which is the aggregate Accrued
Certificate Interest in respect of all the Classes of REMIC III Regular
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 CRIIMI MAE CMBS Corp., Mortgage Pass-Through
Certificates, Series 199__-____".
"Distribution Date": The __th day of any month, or if such __th day
is not a Business Day, the Business Day immediately following, commencing in the
calendar month following the Closing Date.
"Document Defect": As defined in Section 2.02(e).
15
"Due Date": With respect to any Mortgage Loan (and any successor REO
Loan), 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.
"Effective Pass-Through Rate": With respect to the Class S
Certificates for any Distribution Date, the rate per annum equal to the weighted
average, expressed as a percentage and rounded to six decimal places, of the
respective Pass-Through Rates for Component S-A1A, Component S-A1B, Component
S-A2, Component S-A3, Component S-B1, Component S-B2, Component S-B3, Component
S-B4 and Component S-C for such Distribution Date, weighted on the basis of the
respective Component Notional Amounts of such Components of the Class S
Certificates outstanding immediately prior to such Distribution Date.
"Effective REMIC I Remittance Rate": With respect to any REMIC I
Regular Interest, for any Distribution Date, (a) if the Mortgage Note for the
related Mortgage Loan or REO Loan 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"), the related REMIC I
Remittance Rate in effect for such REMIC I Regular Interest for such
Distribution Date, and (b) if the Mortgage Note for the related Mortgage Loan or
REO Loan 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 applicable
Interest Accrual Period for such REMIC I Regular Interest and such Distribution
Date in order to produce the actual amount of Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest for such Distribution Date.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, the long-term
deposit or long-term unsecured debt obligations of which (or of such
institution's parent holding company) are rated at least "[AA]" (or the
equivalent) by each Rating Agency (if the deposits are to be held in the account
for more than 30 days), or the short-term deposit or short-term unsecured debt
obligations of which (or of such institution's parent holding company) are rated
at least "[A-1]" (or the equivalent) by ____ and at least ____ (or the
equivalent) by ____ (if the deposits are to be held in the account for 30 days
or less), in any event at any time funds are on deposit therein, or (ii) a
segregated trust account maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity, which, in the
case of a state chartered depository institution or trust company is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR ss. 9.10(b), and which, in either case, has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
federal or state authority, or (iii) any other account that is acceptable to the
Rating Agencies (as evidenced by written confirmation from each Rating Agency
that the use of such account would not, in and of itself, cause a qualification,
downgrading or withdrawal of the then-current rating assigned thereby to any
Class of Certificates).
16
"Emergency Advance:" Any Servicing Advance that must be made within
five Business Days in order to avoid any 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, ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Extraordinary Expense": Any expense experienced with respect to the
Trust Fund and not otherwise included in the calculation of a Realized Loss that
would result in the REMIC III Regular Certificateholders' receiving less than
the full amount of principal and/or interest to which they are entitled on any
Distribution Date.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"FHLMC": The Federal Home Loan Mortgage 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 made by the Special
Servicer, in its reasonable good faith judgment, and in any event subject to the
Servicing Standard, with respect to any defaulted Mortgage Loan or REO Property
(other than a Mortgage Loan or REO Property, as the case may be, purchased by
the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement, by
the Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by
the Special Servicer or the Master Servicer pursuant to Section 9.01), that
there has been a recovery of all related Insurance Proceeds, Liquidation
Proceeds and other payments or recoveries that will ultimately be recoverable.
"FNMA": The Federal National Mortgage Association or any successor.
"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 now existing or
17
hereafter enacted, 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.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee 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 Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or any
Affiliate thereof, and (iii) is not connected with the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee 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 Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee 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 Master Servicer,
the Special Servicer, the REMIC Administrator, the Trustee 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 any
Person that owns, directly or indirectly, 35% 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 be at no expense to the Trustee, the
REMIC Administrator or the Trust Fund, 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 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 Fund, 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": The initial Class Notional Amount
of the Class S Certificates as of the Closing Date equal to $___________.
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"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-1A $
Class A-1B $
Class A-2 $
Class A-3 $
Class B-1 $
Class B-2 $
Class B-3 $
Class B-4 $
Class C $
"Insurance Policy": With respect to any Mortgage Loan or REO
Property, any hazard insurance policy, flood insurance policy, title insurance
policy or other insurance policy that is maintained from time to time in respect
of such Mortgage Loan (or the related Mortgaged Property) or 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 related Mortgagor, in any
case, in accordance with the Servicing Standard.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Mortgage Loan Seller, any
Certificateholder, or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"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 Scheduled Payment (other than a
Balloon Payment) or an Assumed Scheduled Payment in respect of such Mortgage
Loan due or deemed due on a Due Date in a previous Collection Period, or on a
Due Date coinciding with or preceding the Cut-off Date, and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property
19
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 Scheduled Payment (other than a Balloon
Payment) or an Assumed Scheduled Payment in respect of the predecessor Mortgage
Loan or late collections of the principal and/or interest portions of an Assumed
Scheduled Payment in respect of such REO Loan due or deemed due on a Due Date in
a previous Collection Period and not previously recovered.
"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 purchased by the Mortgage Loan Seller pursuant to the Mortgage Loan
Purchase Agreement; or (iv) such Mortgage Loan is purchased by the Special
Servicer or the Master Servicer pursuant to Section 3.18 or Section 9.01. With
respect to any REO Property (and the related REO Loan), any of the following
events: (i) a Final Recovery Determination is made with respect to such REO
Property; or (ii) such REO Property is purchased by the Special Servicer or the
Master Servicer pursuant to Section 9.01.
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan or REO Property (other than any Specially Serviced Mortgage Loan or REO
Property purchased by the Special Servicer or the Master Servicer pursuant to
Section 3.18 or Section 9.01 or purchased by the Mortgage Loan Seller pursuant
to the Mortgage Loan Purchase Agreement), 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, ____%.
"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 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; (iv) the
purchase of a Defaulted Mortgage Loan 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 purchase of a Mortgage Loan by the Mortgage Loan Seller
pursuant to the Mortgage Loan Purchase Agreement; or (vi) the purchase of a
Mortgage Loan or REO Property by the Special Servicer or the Master Servicer
pursuant to Section 9.01.
"Master Servicer": _____________________, its successor in interest,
or any successor servicer appointed as herein provided.
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"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Collection Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any payments of principal (including, without
limitation, Principal Prepayments) and interest, Liquidation Proceeds and
Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums and/or Yield Maintenance Premiums received after
the end of the related Collection Period, (iv) any amounts payable or
reimbursable to any Person from the Collection Account pursuant to clauses (ii)
through (xvi) of Section 3.05(a), and (v) any amounts deposited in the
Collection Account in error; provided that the Master Servicer Remittance Amount
for the Master Servicer Remittance Date that occurs in the same calendar month
as the Final Distribution Date shall be calculated without regard to clauses
(b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date": The second Business Day preceding
each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee designated as such and payable to the Master Servicer pursuant to
Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan and
REO Loan, _______% per annum.
"Maturity Assumptions": The assumptions used to calculate the
"latest possible maturity date" for each REMIC II Regular Interest and each of
the Classes of Certificates or Components thereof representing "regular
interests" in REMIC III for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), which assumptions are: [to be specified].
"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
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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 reasonable good faith 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 as of any Due
Date, the scheduled monthly payment of principal and interest or interest only
on such Mortgage Loan, including any 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 by reason of
a modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20).
"Mortgage": A mortgage, deed of trust, deed to secure debt or
similar document that secures a Mortgage Note and creates a lien on a Mortgaged
Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 2.01, collectively, the following documents:
(i) the original executed Mortgage Note, endorsed "Pay to the
order of ______________, as trustee for the registered holders
of CRIIMI MAE CMBS Corp., Mortgage Pass-Through Certificates,
Series 199__-___, without recourse";
(ii) an original or copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in
clause (iv) of this definition, in each case (unless such
document has not yet been returned from the applicable
recording office) with evidence of recording indicated
thereon;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and of any
intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, in each case
(unless such document has not yet been returned from the
applicable recording office) with evidence of recording
indicated thereon;
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(iv) an original executed assignment of the Mortgage, in favor of
_______________, as trustee for the registered holders of
CRIIMI MAE CMBS Corp., Mortgage Pass-Through Certificates,
Series 199__-___, in recordable form;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in favor
of ________________, as trustee for the registered holders of
CRIIMI MAE CMBS Corp., Mortgage Pass-Through Certificates,
Series 199__-___, in recordable form;
(vi) originals or copies of any written modification agreements in
those instances where the terms or provision of the Mortgage
or Mortgage Note have been modified;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued on the date of the origination
of such Mortgage Loan, or, if such policy has not been issued,
an irrevocable, binding commitment to issue such title
insurance policy; and
(viii)filed copies of any prior UCC Financing Statements in favor of
the originator of such Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the
Mortgage Loan Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Mortgage
Loan Seller on record with the applicable public office for
UCC Financing Statements, an original UCC-2 or UCC-3, as
appropriate, in favor of _______________, as trustee for the
registered holders of CRIIMI MAE CMBS Corp., Mortgage
Pass-Through Certificates, Series 199__-___;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clause
(vi) of this definition, shall be deemed to include only such documents to the
extent the Trustee or Custodian has actual knowledge of their existence.
"Mortgage Loan": Each of the mortgage loans listed on the Mortgage
Loan Schedule 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.
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"Mortgage Loan Purchase Agreement": That certain Mortgage Loan
Purchase and Sale Agreement, dated as of ____________, 199__, between the
Depositor and the Mortgage Loan Seller and relating to the transfer of the
Mortgage Loans to the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of REMIC I, attached hereto as Exhibit
B-1. Such list shall set forth the following information with respect to each
Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) the Stated
Maturity Date; and
(vii) in the case of a Balloon Mortgage Loan, the remaining amortization
term.
"Mortgage Loan Seller": ___________________ or its successor in
interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Rate": With respect to any Mortgage Loan (and any
successor REO Loan), the fixed 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 related Mortgage Note and applicable law, as such rate
may be modified in accordance with Section 3.20 or in connection with a
bankruptcy, insolvency or similar proceeding involving the related Mortgagor.
"Mortgaged Property": A property subject to the lien of a Mortgage.
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"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 deposited by the Master Servicer in the
Distribution Account for such Distribution Date pursuant to Section 3.19(a) in
connection with such Prepayment Interest Shortfalls.
"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, 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, 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 successor
REO Loan), as of any date of determination, the related Mortgage Rate minus ___
basis points.
"Net Operating Income": With respect to any Mortgaged Property, the
net operating income derived from such Mortgaged Property, calculated in
accordance with Exhibit K.
"Net Penalty Charges": With respect to any Mortgage Loan, any
Penalty Charges actually collected thereon (based on the allocations specified
in Section 1.02), net of any portion thereof allocable to pay the Special
Servicer any Liquidation Fee or Workout Fee in respect of such Mortgage Loan and
further net of any Advance Interest accrued on Advances made in respect of such
Mortgage Loan and reimbursable from such Penalty Charges in accordance with
Section 3.05(a)(viii).
"Net Prepayment Premium:" With respect to any Mortgage Loan, any
Prepayment Premium actually collected thereon, net of any portion thereof
allocable to pay a Liquidation Fee or a Workout Fee.
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"Net Yield Maintenance Premium:" With respect to any Mortgage Loan,
any Yield Maintenance Premium actually collected thereon, net of any portion
thereof allocable to pay a Liquidation Fee or a Workout Fee.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or to
be made in respect of any Mortgage Loan or any REO Loan that, as determined by
the Master Servicer or, if applicable, the Trustee, in its reasonable good faith
judgment, and in any event subject to the Servicing Standard, will not be
ultimately recoverable from Late Collections or any other recovery on or in
respect of such Mortgage Loan or REO Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or to be made in respect of a Mortgage Loan or REO Property that, as
determined by the Master Servicer, the Special Servicer or, if applicable, the
Trustee, in its reasonable good faith judgment, and in any event subject to the
Servicing Standard, will not be ultimately recoverable from Late Collections or
any other recovery on or in respect of such Mortgage Loan or REO Property.
"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(c).
"Opinion of Counsel": A written opinion of counsel (which counsel
shall be Independent of the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the REMIC Administrator) acceptable to and delivered
to the addressee(s) thereof and which Opinion of Counsel shall not be at the
expense of the Trustee or the REMIC Administrator.
"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.
"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.
"P&I Advance Date": The second Business Day preceding each
Distribution Date.
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"Pass-Through Rate": With respect to:
(i) Component S-A1A, for any Distribution Date, the excess, if
any, of the REMIC II Remittance Rate for REMIC II Regular
Interest A-1A for such Distribution Date, over the fixed
Pass-Through Rate for the Class A-1A Certificates;
(ii) Component S-A1B, for any Distribution Date, the excess, if
any, of the REMIC II Remittance Rate for REMIC II Regular
Interest A-1B for such Distribution Date, over the fixed
Pass-Through Rate for the Class A-1B Certificates;
(iii) Component S-A2, for any Distribution Date, the excess, if any,
of the REMIC II Remittance Rate for REMIC II Regular Interest
A-2 for such Distribution Date, over the fixed Pass-Through
Rate for the Class A-2 Certificates;
(iv) Component S-A3, for any Distribution Date, the excess, if any,
of the REMIC II Remittance Rate for REMIC II Regular Interest
A-3 for such Distribution Date, over the fixed Pass-Through
Rate for the Class A-3 Certificates;
(v) Component S-B1, for any Distribution Date, the excess, if any,
of the REMIC II Remittance Rate for REMIC II Regular Interest
B-1 for such Distribution Date, over the fixed Pass-Through
Rate for the Class B-1 Certificates;
(vi) Component S-B2, for any Distribution Date, the excess, if any,
of the REMIC II Remittance Rate for REMIC II Regular Interest
B-2 for such Distribution Date, over the fixed Pass-Through
Rate for the Class B-2 Certificates;
(vii) Component S-B3, for any Distribution Date, the excess, if any,
of the REMIC II Remittance Rate for REMIC II Regular Interest
B-3 for such Distribution Date, over the fixed Pass-Through
Rate for the Class B-3 Certificates;
(viii) Component S-B4, for any Distribution Date, the excess, if any,
of the REMIC II Remittance Rate for REMIC II Regular Interest
B-4 for such Distribution Date, over the fixed Pass-Through
Rate for the Class B-4 Certificates;
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(ix) Component S-C, for any Distribution Date, the excess, if any,
of the REMIC II Remittance Rate for REMIC II Regular Interest
C for such Distribution Date, over the fixed Pass-Through Rate
for the Class C Certificates; and
(x) any Class of Sequential Pay Certificates, for any Distribution
Date, the fixed rate per annum specified as such in respect of
such Class in the Preliminary Statement hereto.
"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; second, the Class A-2 Certificates; third, the
Class A-3 Certificates; fourth, the Class B-1 Certificates; fifth, the Class B-2
Certificates; sixth, the Class B-3 Certificates; seventh, the Class B-4
Certificates; eighth, the Class C Certificates; and last, the respective Classes
of Residual Certificates.
"Penalty Charges": Default Interest, late payment charges and/or
charges for checks returned for insufficient funds that are paid or payable, as
the context may require, in respect of any Mortgage Loan or REO Loan.
"Percentage Interest": With respect to any REMIC III 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 or securities:
(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, have a predetermined, fixed amount of principal
due at maturity (that cannot vary or change), do not have an
"r" highlight attached to any rating, and each obligation has
a fixed interest rate or has its interest rate tied to a
single interest rate index plus a single fixed spread;
28
(ii) certain obligations of agencies or instrumentalities of the
United States that are not backed by the full faith and credit
of the United States, provided such obligations have a
predetermined, fixed amount of principal due at maturity (that
cannot vary or change), do not have an "r" highlight attached
to any rating, and each obligation has a fixed interest rate
or has its interest rate tied to a single interest rate index
plus a single fixed spread;
(iii) federal funds, uncertificated certificates of deposit, time
deposits, bankers' acceptances and repurchase agreements
having maturities of not more than 365 days, of any bank or
trust company organized under the laws of the United States or
any state thereof, provided that such items are rated in the
highest short-term debt rating category of each of the Rating
Agencies or, in the case of each Rating Agency, such lower
rating as will not result in a qualification, downgrading or
withdrawal of the rating then assigned to any Class of
Certificates by such Rating Agency (as evidenced in writing by
such Rating Agency), do not have an "r" highlight affixed to
its rating and its terms have a predetermined fixed amount of
principal due at maturity (that cannot vary or change), and
each obligation has a fixed interest rate or has its interest
rate tied to a single interest rate index plus a single fixed
spread;
(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 (or of any corporation
not so incorporated, provided that the commercial paper is
United States Dollar denominated and amounts payable
thereunder are not subject to any withholding imposed by any
non-United States jurisdiction) which is rated in the highest
short-term debt rating category of each of the Rating Agencies
or, in the case of each Rating Agency, such lower rating as
will not result in a qualification, downgrading or withdrawal
of the rating then assigned to any Class of Certificates by
such Rating Agency (as evidenced in writing by such Rating
Agency), do not have an "r" highlight affixed to its rating
and its terms have a predetermined fixed amount of principal
due at maturity (that cannot vary or change), and each
obligation has a fixed interest rate or has its interest rate
tied to a single interest rate index plus a single fixed
spread;
(v) units of money market funds which maintain a constant net
asset value and which are rated in the highest applicable
rating category of each of the Rating Agencies or, in the case
of each Rating Agency, such lower rating as will not result in
a qualification, downgrading or withdrawal of the rating then
assigned to any Class of Certificates by such Rating Agency
(as evidenced in writing by such Rating Agency); or
29
(vi) any other obligation or security acceptable to each Rating
Agency, which will not result in a qualification, downgrading
or withdrawal of the rating then assigned to any Class of
Certificates by such Rating Agency (as evidenced in writing by
such Rating Agency);
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) 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 (that
cannot vary or change).
"Permitted Transferee": Any Transferee of a Residual Certificate
other than either a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization 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 FNMA Multifamily
Guide, as amended from time to time.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I, REMIC II or REMIC III, the Holder of Certificates evidencing the
largest Percentage Interest in the Class of Residual Certificates constituting
the sole class of "residual interests" in such REMIC.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the Mortgage
Loans, the REMIC I Regular Interests, the REMIC II Regular Interests and the
Certificates for federal income tax purposes, the assumption that no Mortgage
Loan is voluntarily prepaid.
"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 Master Servicing Fees and Property
Servicing Fees) actually collected from the related Mortgagor and intended to
cover the period from the commencement of such month to the date of prepayment
(exclusive, however, of any related Prepayment Premium or Yield Maintenance
Premium that may have been collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part made and applied
to such Mortgage Loan after
30
the Determination Date in any calendar month, the amount of interest, to the
extent not collected from the related Mortgagor (without regard to any
Prepayment Premium or Yield Maintenance Premium that may have been collected),
that would have accrued at a rate per annum equal to the Mortgage Rate for such
Mortgage Loan (net of the Master Servicing Fee Rate and Property Servicing 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 month, inclusive.
"Prepayment Premium": With respect to any Mortgage Loan, 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, to the extent such
premium, penalty or fee is expressed as a percentage of the principal amount
being prepaid or a specified amount.
"Primary Servicing Office": The office of the Master Servicer or the
Special Servicer, as the context may require, that is primarily responsible for
such party's servicing obligations hereunder.
"Prime Rate": The "prime rate" 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 the "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.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the following:
(a) the aggregate of the principal portions of all Scheduled
Payments (other than Balloon Payments) and any Assumed Scheduled
Payments due or deemed due, as the case may be, in respect of the
Mortgage Loans for their respective Due Dates occurring during the
related Collection Period;
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(c) with respect to any 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 Prepayments and any amounts described in clause (d) below)
made by or on behalf of the related Mortgagor
31
during the related Collection Period, net of any portion of such
payment that represents a recovery of the principal portion of any
Scheduled Payment (other than a Balloon Payment) due, or the
principal portion of any Assumed Scheduled Payment deemed due, in
respect of such Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered;
(d) the aggregate of all Liquidation Proceeds and Insurance
Proceeds that were received on the Mortgage Loans during the related
Collection Period and that were identified and applied by the Master
Servicer as recoveries of principal of such Mortgage Loans, in each
case net of any portion of such amounts that represents a recovery
of the principal portion of any Scheduled Payment (other than a
Balloon Payment) due, or of the principal portion of any Assumed
Scheduled Payment deemed due, in respect of the related Mortgage
Loan on a Due Date during or prior to the related Collection Period
and not previously recovered;
(e) with respect to any REO Properties, the aggregate of the
principal portions of all Assumed Scheduled Payments deemed due in
respect of the related REO Loans for their respective Due Dates
occurring during the related Collection Period;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period in respect of such REO
Properties and 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 Scheduled Payment (other
than a Balloon Payment) due, or of the principal portion of any
Assumed Scheduled Payment deemed due, in respect of the related REO
Loan or the predecessor Mortgage Loan on a Due Date during or prior
to the related Collection Period and not previously recovered; and
(g) 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 Certificates on such
preceding Distribution Date pursuant to Section 4.01(a).
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date and that is not accompanied by an amount of interest (without regard to any
Prepayment Premium or Yield Maintenance 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.
32
"Private Certificates": Unless and until registered under the
Securities Act, any Class B-2, Class B-3, Class B-4, Class C or Residual
Certificate.
"Property Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee designated as such and payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(c).
"Property Servicing Fee Rate": With respect to each Mortgage Loan
and REO Loan, _______% per annum.
"Purchase Price": With respect to any Mortgage Loan (or REO
Property), a cash price equal to the aggregate of: (a) the outstanding principal
balance of such Mortgage Loan (or the related REO Loan) as of the date of
purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Loan) at the related Mortgage Rate to but not including the date of
purchase (or, if such purchase occurs after the Determination Date in any
calendar month, through the end of such calendar month), (c) all related and
unreimbursed Servicing Advances, and (d) solely in the case of a purchase by the
Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement, all
accrued and unpaid Advance Interest in respect of related Advances.
"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: (1) each defaulted Mortgage Loan
as to which a Final Recovery Determination has been made, or with respect to any
successor 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 (a) 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 (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or REO Loan, as the case may be, at the related
Mortgage Rate to but not including the related Due Date in the Collection Period
in which the Final Recovery Determination was made, plus (c) 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 (d) all
payments and proceeds, if any, received in respect of such Mortgage Loan or REO
Loan, as the case may be, during the
33
Collection Period in which such Final Recovery Determination was made; (2) each
defaulted Mortgage Loan as to which any portion of the principal or past due
interest payable thereunder was cancelled 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 Special Servicer
pursuant to Section 3.20, the amount of such principal or past due interest
(other than any Default Interest) so cancelled; and (3) each defaulted 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 Special Servicer pursuant to Section
3.20, the amount of the consequent reduction in the interest portion of each
successive Monthly Payment due thereon (each such Realized Loss to be deemed to
have been incurred on the Due Date for each affected Monthly Payment).
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Reimbursement Rate": The rate per annum applicable to the accrual
of Advance Interest, which rate per annum is equal to the Prime Rate.
"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,
and 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 after the Closing
Date, together with all documents included in the related Mortgage Files and any
Escrow Payments and Reserve Funds; (ii) any REO Property acquired in respect of
a Mortgage Loan; (iii) such funds or assets as from time to time are deposited
in the Collection Account, the Distribution Account and, if established, the REO
Account; (iv) the rights of the Depositor under Sections ________________ of the
Mortgage Loan Purchase Agreement; and (v) the rights of the Trustee and the
Certificateholders as third party beneficiaries under the Mortgage Loan Purchase
Agreement (as and to the extent provided under Section ____ thereof).
"REMIC I Regular Interest": With respect to each Mortgage Loan (and
any successor REO Loan), the separate non-certificated beneficial ownership
interest 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 and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal
34
to its initial Uncertificated Principal Balance (which shall equal the Cut-off
Date Balance of the related Mortgage Loan). The designation for each REMIC I
Regular Interest shall be the loan number for the related Mortgage Loan set
forth in the Mortgage Loan schedule.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, a rate per annum equal to the Net Mortgage
Rate for the related Mortgage Loan in effect as of the Closing Date.
"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 Regular Interest": Any of the nine separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at the related REMIC II 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 II Regular Interests are set
forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate": With respect to any REMIC II Regular
Interest for any Distribution Date, the Weighted Average Effective REMIC I
Remittance Rate for such Distribution Date.
"REMIC III": The segregated pool of assets consisting of all of the
REMIC II Regular Interests, with respect to which a separate REMIC election is
to be made.
"REMIC III Certificate": Any Certificate, other than a Class R-I
Certificate or a Class R-II Certificate.
"REMIC III Regular Certificate": Any REMIC III Certificate, other
than a Class R-III 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.
35
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16(b) on behalf of
the Trustee in trust for the Certificateholders, which shall be entitled "
____________________, as Special Servicer, on behalf of and in trust for
registered holders of CRIIMI MAE CMBS Corp., 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 any 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. Each REO Loan shall be deemed to
provide for monthly payments of principal and/or interest equal to its Assumed
Scheduled Payment and otherwise to have the same terms and conditions as its
predecessor Mortgage Loan (such terms and conditions to be applied without
regard to the default on such 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 its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All Scheduled Payments (other than any Balloon Payment), Assumed
Scheduled 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. In addition, all amounts payable or reimbursable to the Master
Servicer, the Special Servicer or the Trustee in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid or unreimbursed Master Servicing Fees, Property Servicing
Fees, Special Servicing Fees and Advances (together with any related unpaid
Advance Interest), shall continue to be payable or reimbursable to the Master
Servicer, the Special Servicer or the 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
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 Tax": As defined in Section 3.17(a)(i).
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"Request for Release": A request signed by a Servicing Officer of,
as applicable, the Master Servicer in the form of Exhibit D-1 attached hereto or
the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(c).
"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: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; or (ii) amounts to be applied as a Principal
Prepayment on such Mortgage Loan in the event that certain leasing criteria in
respect of the related Mortgaged Property are not met.
"Residual Certificate": Any Class R-I Certificate, Class R-II
Certificate or Class R-III Certificate.
"Responsible Officer": When used with respect to the Trustee, any
Vice President, Assistant Vice President, Trust Officer, Assistant Secretary or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement. When used with respect
to any Certificate Registrar (other than the Trustee), any officer or assistant
officer thereof.
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the scheduled
monthly payment of principal and interest on such Mortgage Loan that is or would
be, as the case may be, payable by the related Mortgagor on such Due Date under
the terms of the related Mortgage Note as in effect on the Closing Date, without
regard to any subsequent 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 Special Servicer pursuant to Section 3.20, and assuming that each prior
Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class S Certificate, Class A-1A
Certificate or Class ▇- ▇▇ ▇▇▇▇▇▇▇▇▇▇▇.
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"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate of the Class Principal Balances of
the Class A-1A Certificates and the Class A-1B Certificates outstanding
immediately prior thereto 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-1A Certificate, Class A-1B
Certificate, Class A-2 Certificate, Class A-3 Certificate, Class B-1
Certificate, Class B-2 Certificate, Class B-3 Certificate, Class B-4 Certificate
or Class C 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 2.02(e), 2.03(c), 3.03(c) and 3.09, (b) the
preservation, insurance, restoration, protection and management of a Mortgaged
Property, including the cost of any "force placed" insurance policy purchased by
the Master Servicer or the Special Servicer to the extent such cost is allocable
to a particular Mortgaged Property that the Master Servicer or the Special
Servicer is required to cause to be insured pursuant to Section 3.07(a), (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.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File) in the possession of the Master Servicer or
the Special Servicer and relating to the origination and servicing of any
Mortgage Loan or the administration of any REO Property.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans,
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whose name and specimen signature appear on a list of servicing officers
furnished by such party to the Trustee and the Depositor on the Closing Date, as
such list may be amended from time to time.
"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": To service and administer the Mortgage Loans
and REO Properties with the higher of the care, skill and diligence with which
prudent institutional commercial mortgage lenders and loan servicers service
comparable mortgage loans and the care, skill, prudence and diligence with which
the Master Servicer or Special Servicer, as the case may be, generally services
comparable mortgage loans owned by it, and in any event with a view to the
timely collection of all scheduled payments of principal and interest under the
Mortgage Loans or, if a Mortgage Loan comes into and continues in default and 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), but
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 the related
Mortgagor or any other party hereto; (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 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 hypothetical
Certificate of any Class of REMIC III Regular Certificates evidencing a $1,000
denomination or, in the case of a Class S Certificate, a 100% Percentage
Interest in the relevant Class.
"Special Servicer": ___________________, its successor in interest,
or any successor special servicer appointed as herein provided.
"Special Servicer Report": As defined in Section 4.02(c).
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"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 second paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, _______% 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 continues, or the Master Servicer
determines in its reasonable good faith 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 continues unremedied for 60 days; or
(c) the Master Servicer has determined, in its reasonable good
faith judgment, that a default in the making a Monthly 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) the Master Servicer has determined, in its reasonable good
faith judgment, that a default, other than as described in
clause (a) or (b) above, has occurred that may materially
impair the value of the related Mortgaged Property as security
for the Mortgage Loan, which default has continued unremedied
for the applicable cure period under the terms of the Mortgage
Loan (or, if no cure period is specified, for 30 days); or
(e) there has been commenced in any court or agency or supervisory
authority having jurisdiction in the premises an involuntary
action against the related Mortgagor under any present or
future federal or state bankruptcy, insolvency or similar law
for 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; provided, however, that no
Workout Fee or Liquidation Fee shall be payable with respect
to a Specially Serviced Mortgage Loan that has become such
pursuant to the provisions of this subsection (e) if such
involuntary action is dismissed within 30 days of commencement
of such
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action (or is dismissed between 31 and 60 days after such
commencement in the absence of the Special Servicer having
provided substantial services in connection with such
dismissal) and no other Servicing Transfer Event then exists;
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, however, that a Mortgage Loan shall 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, so long
as at such time no circumstance identified in clauses (a) through (h) above
exists that would cause the Mortgage Loan to continue to be characterized as a
Specially Serviced Mortgage Loan:
(w) with respect to the circumstances described in clauses (a) and
(b) above, when 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, when such circumstances cease to exist
in the reasonable good faith judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (d)
above, when such default is cured; and
41
(z) with respect to the circumstances described in clause (h)
above, when such proceedings are terminated.
"Startup Day": With respect to each of REMIC I, REMIC II and REMIC
III, the day designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing Date) on which
the last payment of principal is due and payable under the terms of the 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 Special Servicer pursuant to Section
3.20.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), the Cut-off Date Balance of such Mortgage Loan, as
reduced on each Distribution Date (to not less than zero) by (i) all payments
(or P&I Advances in lieu thereof) and other collections of principal of such
Mortgage Loan (or successor REO Loan) that are (or, if they had not been applied
to cover any Extraordinary 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 or 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 A-2 Certificate, Class A-3
Certificate, Class B-1 Certificate, Class B-2 Certificate, Class B-3
Certificate, Class B-4 Certificate, Class C Certificate, Class R-I Certificate,
Class R-II Certificate or Class R-III Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Substitute Collateral": As defined in Section 7.06.
"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 any of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under
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Treasury regulation section 1.860F-4(d) and temporary Treasury regulation
section 301.6231(a)(7)-1T, which Person shall, pursuant to Section 10.01(d), be
the applicable Plurality Residual Certificateholder.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income (REMIC)
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holder of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I, REMIC II and REMIC III 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 under any
applicable provisions of federal tax law or any other governmental taxing
authority under applicable state or local tax laws.
"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 Fund": Collectively, all of the assets of REMIC I, REMIC II
and REMIC III.
"Trustee": ___________________, its successor in interest, or any
successor trustee appointed as herein provided.
"Trustee's Fee": With respect to the Mortgage Pool, the fee
designated as such and payable to the Trustee pursuant to Section 8.05. The
Trustee shall be entitled to withdraw earned but unpaid Trustee's Fees from the
Distribution Account on each Distribution Date, pursuant to Sections 3.05(b) and
8.05(a).
"Trustee's Fee Rate": _______% per annum.
"Trustee Report": As defined in Section 4.02(a).
"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 any relevant
jurisdiction.
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"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 or, if the
related Mortgage Loan or REO Loan accrues interest on a different basis, on such
alternative basis) 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. With respect to any REMIC II 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 II Remittance Rate
applicable to such REMIC II Regular Interest for such Distribution Date, accrued
on the Uncertificated Principal Balance of such REMIC II Regular Interest
outstanding immediately prior to such Distribution Date.
"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) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
expressed as a percentage, 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. With
respect to any REMIC II Regular Interest for any Distribution Date, the
Uncertificated Accrued Interest in respect of such REMIC II Regular Interest for
such Distribution Date, reduced (to not less than zero) by the product of (i)
any Net Aggregate Prepayment Interest Shortfall for such Distribution Date,
multiplied by (ii) a fraction, expressed as a percentage, the numerator of which
is the Uncertificated Accrued Interest in respect of such REMIC II Regular
Interest for such Distribution Date, and the denominator of which is the
aggregate Uncertificated Accrued Interest in respect of all the REMIC II Regular
Interests for such Distribution Date.
"Uncertificated Principal Balance": The principal amount of any
REMIC I Regular Interest or REMIC II 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 Cut-off Date Balance of the
related Mortgage Loan. On each Distribution Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall be reduced by all distributions
of principal deemed to have been made thereon on such Distribution Date pursuant
to Section 4.01(i) and, if and to the extent appropriate, shall be further
reduced on such Distribution Date as provided in Section 4.04(c). As of the
Closing Date, the Uncertificated Principal Balance of each REMIC II Regular
Interest shall equal the amount set forth in the Preliminary Statement hereto as
its initial stated principal amount. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC II Regular Interest shall be
reduced by all distributions of principal deemed to have been made thereon on
such Distribution Date pursuant to Section 4.01(h) and, if and to the extent
appropriate, shall be further reduced on such Distribution Date as provided in
Section 4.04(b).
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"Underwriter": _________________________________.
"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 or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
"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, _____% of the Voting Rights shall be allocated among the
Holders of the various Classes of Sequential Pay Certificates in proportion to
the respective Class Principal Balances thereof, _____% of the Voting Rights
shall be allocated to the Holders of the Class S Certificates, and any Voting
Rights not otherwise allocated in the aforesaid manner will be allocated to the
REMIC Residual 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 Effective REMIC I Remittance Rate": With respect
to any Distribution Date, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to six decimal places, of the respective
Effective REMIC I Remittance Rates in respect of the REMIC I Regular Interests
for such Distribution Date, weighted on the basis of the respective
Uncertificated Principal Balances of the REMIC I Regular Interests outstanding
immediately prior to such Distribution Date.
"Weighted Average REMIC II Remittance Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to six decimal places, of the respective REMIC II
Remittance Rates in respect of the REMIC II Regular Interests for such
Distribution Date, weighted on the basis of the respective Uncertificated
Principal Balances of the REMIC II Regular Interests 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,
___%.
"Yield Maintenance Premium": With respect to any Mortgage Loan, any
premium, penalty or fee paid or payable, as the context requires, by a Mortgagor
in connection with a
45
Principal Prepayment on, or other early collection of principal of, a Mortgage
Loan, other than any Prepayment Premium.
SECTION 1.02. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any Mortgage Loan in the
form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds
shall be applied to amounts due and owing under the related Mortgage Note and
Mortgage (including, without limitation, for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage Note
and Mortgage and, in the absence of such express provisions, shall be applied
for purposes of this Agreement: first, as a recovery of any related and
unreimbursed Servicing Advances; second, as a recovery of accrued and unpaid
interest at the related Mortgage Rate on such Mortgage Loan to but not
including, as appropriate, the date of receipt (or, in the case of a full
Monthly Payment from any Mortgagor, through 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 or Yield
Maintenance Premium then due and owing under such Mortgage Loan; seventh, as a
recovery of any other amounts then due and owing under such Mortgage Loan; and
eighth, as a recovery of any remaining principal of such Mortgage Loan to the
extent of its entire remaining unpaid principal balance.
(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 treated: first, as a
recovery of any related and unreimbursed Servicing Advances; second, as a
recovery of accrued and unpaid interest on the related REO Loan at the related
Mortgage Rate to but not including the Due Date in the Collection Period of
receipt; third, as a recovery of principal of the related REO Loan to the extent
of its entire unpaid principal balance; and fourth, as a recovery of any other
amounts deemed to be due and owing in respect of the related REO Loan.
(c) Insofar as amounts received in respect of any Mortgage Loan or
REO Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Loan, as the case may be, that constitute additional
servicing compensation payable to the Master Servicer and/or Special Servicer,
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.
46
(d) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly Determination Date Report and Trustee
Report.
47
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign to the Trustee without recourse for the benefit of
the Certificateholders all the right, title and interest of the Depositor in, to
and under (i) the Mortgage Loans, (ii) Sections ______________ of the Mortgage
Loan Purchase Agreement and (iii) all other assets included or to be included in
the Trust Fund. Such assignment includes, without limitation, all interest and
principal received or receivable on or with respect to the Mortgage Loans (other
than payments of interest and principal due and payable on the Mortgage Loans on
or before the Cutoff Date and any Principal Prepayments (together with any
related Prepayment Premiums and/or Yield Maintenance Premiums) received on or
before the Cut-off Date).
(b) The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the parties to
constitute a sale of the Mortgage Loans and such other related rights and
property to the Trustee for the benefit of the Certificateholders. It is,
further, not intended that such conveyance be deemed a pledge of security for a
loan. If such conveyance is deemed to be a pledge of security for a loan,
however, the Depositor intends that the rights and obligations of the parties to
such loan shall be established pursuant to the terms of this Agreement. The
Depositor also intends and agrees that, in such event, (i) this Agreement shall
constitute a security agreement under applicable law, (ii) the Depositor shall
be deemed to have granted to the Trustee (in such capacity) a first priority
security interest in the Depositor's entire right, title and interest in and to
the assets constituting the Trust Fund, including, without limitation, the
Mortgage Loans, all principal and interest received or receivable with respect
to the Mortgage Loans (other than principal and interest payments due and
payable on or prior to the Cut-off Date and any Principal Prepayments received
on or prior to the Cut-off Date), all amounts held from time to time in the
Collection Account, the Distribution Account and, if established, the REO
Account and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest in and to the proceeds of any title,
hazard or other Insurance Policies related to such Mortgage Loans, (iii) the
possession by the Trustee or its agent of the Mortgage Notes with respect to the
Mortgage Loans 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 person designated by such
secured party for the purpose of perfecting such security interest under
applicable law, and (iv) notifications to, and acknowledgments, receipts or
confirmations from, Persons holding such property, shall be deemed to be
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. The Depositor shall
file or cause to be
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filed, as a precautionary filing, a Form UCC-1 substantially in the form
attached as Exhibit J hereto in all appropriate locations in the State of
_____________ promptly following the initial issuance of the Certificates, and
the Master Servicer shall prepare and file at each such office, and the Trustee
shall execute, continuation statements with respect thereto, in each case within
six months prior to the fifth anniversary of the immediately preceding filing.
The Depositor shall cooperate in a reasonable manner with the Trustee and the
Master Servicer in preparing and filing such continuation statements. This
Section 2.01(b) shall constitute notice to the Trustee pursuant to any of the
requirements of the UCC in effect in _________.
(c) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, (i) the Depositor shall deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with copies to the Master Servicer), on or before the Closing
Date, the Mortgage File for each Mortgage Loan so assigned and (ii) the
Depositor shall deliver to the Trustee on or before the Closing Date a fully
executed counterpart of the Mortgage Loan Purchase Agreement.
(d) The Trustee shall deliver to the Master Servicer within 15 days
after the Closing Date each assignment of Mortgage and assignment of Assignment
of Leases in favor of the Trustee referred to in clauses (iv) and (v) of the
definition of "Mortgage File" and each UCC-2 and UCC-3 in favor of the Trustee
referred to in clause (viii) of the definition of "Mortgage File", and the
Master Servicer shall, at the Depositor's expense, as to each Mortgage Loan,
promptly (and in any event within 45 days following the Closing Date) cause each
such document 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 the Master Servicer deems appropriate. Each such assignment shall
reflect that it should be returned by the public recording office to the Trustee
following recording, and each such UCC-2 and UCC-3 shall reflect that the file
copy thereof should be returned to the Trustee following filing; provided that
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases the Master Servicer
shall obtain therefrom a certified copy of the recorded original. If any such
document or instrument is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Depositor shall promptly prepare or
cause to be prepared a substitute therefor or cure such defect, as the case may
be, and thereafter the Master Servicer shall upon receipt thereof cause the same
to be duly recorded or filed, as appropriate.
(e) The Depositor shall deliver to and deposit with, or cause to be
delivered to and deposited with, the Master Servicer all documents and records
in the possession of the Depositor or the Mortgage Loan Seller that relate to
the Mortgage Loans necessary for the servicing of the Mortgage Loans and that
are not required to be a part of a Mortgage File in accordance with the
definition thereof, and the Master Servicer shall hold all such documents and
records on behalf of the Trustee in trust for the benefit of the
Certificateholders.
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(f) On or prior to the tenth Business Day following the Closing
Date, the Depositor shall cause copies of the documents referred to in clauses
(i), (ii) (iii), (vi) (as applicable) and (vii) of the definition of "Mortgage
File" for each Mortgage Loan to be delivered to the Master Servicer and the
Special Servicer.
SECTION 2.02. Acceptance of REMIC I by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to the proviso
in the definition of Mortgage File, to any exceptions noted on the Schedule of
Exceptions to Mortgage File Delivery attached hereto as Exhibit B-2, to the
provisions of Sections 2.01, 2.02(c) and 2.02(d) and to the further review
provided for in Section 2.02(b), of (i) the Mortgage File with respect to each
Mortgage Loan (provided that with respect to the documents referred to in clause
(vi) of the definition of "Mortgage File" such acknowledgment shall apply only
to the extent such documents are actually delivered), (ii) a fully executed
counterpart of the Mortgage Loan Purchase Agreement, and (iii) all other assets
delivered to it and 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 such documents and the other documents received by it that constitute
portions of the Mortgage Files, 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. In addition, the Trustee hereby certifies
to each of the other parties hereto and the Mortgage Loan Seller that, as to
each Mortgage Loan listed on the Mortgage Loan Schedule, except as specifically
identified in the Schedule of Exceptions to Mortgage File Delivery attached
hereto as Exhibit B-2, (i) all documents specified in clauses (i), (ii), (iv),
(vii) and (viii) of the definition of "Mortgage File" are in its possession or
the possession of a Custodian on its behalf, (ii) all documents referred to in
clause (i) of this sentence received by it or any Custodian with respect to such
Mortgage Loan have been reviewed by it or by such Custodian on its behalf and
appear regular on their face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Mortgagor) and purport
to 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), (v) and (vi)(B) of
the definition of "Mortgage Loan Schedule" accurately reflects the information
set forth in the Mortgage File.
(b) On or about the 90th day following the Closing Date (and, if any
exceptions are noted, again on or about the first anniversary of the Closing
Date), the Trustee shall, subject to Sections 2.01, 2.02(c) and 2.01(d), certify
in writing to each of the other parties hereto and the Mortgage Loan Seller
that, as to each Mortgage Loan listed on the Mortgage Loan Schedule (other than
any Mortgage Loan as to which a Liquidation Event has occurred or any Mortgage
Loan specifically identified in any exception report annexed thereto as not
being covered by such certification): (i) all documents specified in clauses (i)
through (v), (vii) and (viii) of the definition of "Mortgage File" are in its
possession, (ii) all documents received by it or any Custodian with
50
respect to such Mortgage Loan have been reviewed by it or by such Custodian on
its behalf and appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Mortgagor)
and purport to relate to such Mortgage Loan, and (iii) based on the examinations
referred to in Section 2.02(a) above and this Section 2.02(b) 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), (v) and (vi)(B) of the
definition of "Mortgage Loan Schedule" accurately reflects the information set
forth in the Mortgage File.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation 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 valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face.
(d) In performing any such review contemplated by subsections (a)
and (b) above, the Trustee may conclusively rely on the Depositor as to the
purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents listed in definition of Mortgage
File have been received and further confirming that any and all documents
delivered pursuant to this Section 2.02 have been executed and relate to the
Mortgage Loans identified in the Mortgage Loan Schedule. The Trustee shall have
no responsibility for determining whether any document is valid and binding,
whether the text of any assignment or endorsement is in proper or recordable
form, whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(e) If any party hereto discovers that any document constituting a
part of a Mortgage File has not been properly executed, is missing, contains
information that does not conform in any respect with the corresponding
information set forth in the Mortgage Loan Schedule (and the terms of such
document have not been modified by written instrument contained in the Mortgage
File), or does not appear to be regular on its face (each, a "Document Defect"),
such party shall give prompt written notice thereof to the other parties
thereto. Upon its discovery or receipt of notice of any such Document Defect,
the Master Servicer shall notify the Mortgage Loan Seller. If any Document
Defect is not corrected within 90 days of such notice, and such Document Defect
materially and adversely affects the value of any Mortgage Loan or the interests
of the Certificateholders therein, the Master Servicer shall, on behalf of the
Trust Fund, exercise such rights and remedies as it may have hereunder, under
the Mortgage Loan Purchase Agreement with respect to such Document Defect in
such manner as it determines, in its reasonable good faith judgment, is in the
best interests of the Certificateholders (taken as a collective whole). Any and
all expenses incurred by the Master Servicer with respect to the foregoing shall
constitute Servicing Advances in respect of the affected Mortgage Loan.
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SECTION 2.03. Certain Repurchases of Mortgage Loans by the Mortgage
Loan Seller.
(a) If any party hereto or any Certificateholder discovers or
receives notice of a breach of any representation or warranty relating to any
Mortgage Loan set forth in the Mortgage Loan Purchase Agreement (a "Breach"),
and such Breach materially and adversely affects the value of such Mortgage Loan
or the interests of the Certificateholders therein, such Person shall give
prompt written notice to the parties hereto. Promptly upon becoming aware of any
such Breach, the Master Servicer shall request that the Mortgage Loan Seller,
not later than 90 days (or such other period as is provided in the Mortgage Loan
Purchase Agreement) from the receipt by the Mortgage Loan Seller of such notice,
cure such Breach in all material respects or repurchase the affected Mortgage
Loan at the applicable Purchase Price as, if and to the extent required by the
Mortgage Loan Purchase Agreement; provided that if (i) such Breach does not
relate to whether the affected Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860(a)(3) of the Code, (ii) such Breach is capable of
being cured but not within such 90-day (or other) period, (iii) the Mortgage
Loan Seller has commenced and is diligently proceeding with the cure of such
Breach within such 90-day (or other) period, and (iv) the Mortgage Loan Seller
shall have delivered to the Trustee a certification executed on behalf of the
Mortgage Loan Seller by an officer thereof setting forth the reason that such
Breach is not capable of being cured within an initial 90-day (or other) period,
specifying what actions the Mortgage Loan Seller is pursuing in connection with
the cure thereof and stating that the Mortgage Loan Seller anticipates that such
Breach will be cured within an additional period not to exceed 90 more days,
then the Mortgage Loan Seller shall have up to an additional 90 days to complete
such cure. If the affected Mortgage Loan is to be repurchased, the Master
Servicer shall designate the Collection Account as the account to which funds in
the amount of the Purchase Price are to be wired, and the Master Servicer shall
promptly notify the Trustee when such deposit is made. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
(b) Upon receipt of an Officer's Certificate from the Master
Servicer to the effect that the full amount of the Purchase Price for any
Mortgage Loan repurchased by the Mortgage Loan Seller as contemplated by Section
2.03(a) has been deposited in the Collection Account, the Trustee shall release
or cause to be released to such purchaser or its designee, as appropriate, the
related Mortgage File, and shall execute and deliver such instruments of
release, transfer and/or assignment, in each case without recourse, as shall be
provided to it and are reasonably necessary to vest in such purchaser or its
designee the ownership of the repurchased Mortgage Loan. In connection with any
such purchase by the Mortgage Loan Seller, each of the Master Servicer and the
Special Servicer shall deliver any portion of the related Servicing File that is
in its possession to such purchaser or its designee.
(c) The Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Breach. If the Mortgage Loan Seller defaults
on its obligations to repurchase any Mortgage
52
Loan as contemplated by Section 2.03(a), the Master Servicer shall promptly
notify the Trustee and the Certificateholders and shall take such actions with
respect to the enforcement of such repurchase obligations, including, without
limitation, the institution and prosecution of appropriate legal proceedings, as
the Master Servicer shall determine, in its reasonable good faith judgment, are
in the best interests of the Certificateholders (taken as a collective whole).
Any and all expenses incurred by the Master Servicer with respect to the
foregoing shall constitute Servicing Advances in respect of the affected
Mortgage Loan.
SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties hereto 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
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 by which it is bound.
(iii) The Depositor has the full power and authority to own its
properties, to conduct its business as presently conducted by it and
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
53
reasonable good faith 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 or governmental 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 that, if determined
adversely to the Depositor, would prohibit the Depositor from
entering into this Agreement or that, in the Depositor's reasonable
good faith judgment, is likely to materially and adversely affect
either the ability of the Depositor to perform its obligations under
this Agreement or the financial condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans to
the Trustee for the benefit of the Certificateholders pursuant to
this Agreement, the Depositor had good and marketable title to, and
was the sole owner and holder of, each Mortgage Loan; and the
Depositor has full right and authority to sell, assign and transfer
the Mortgage Loans.
(ix) The Depositor is transferring the Mortgage Loans to the
Trustee for the benefit of the Certificateholders free and clear of
any and all liens, pledges, charges and security interests created
by or through the Depositor.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(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 Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall given prompt written notice to the other
parties hereto.
SECTION 2.05. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Master Servicer is a ________________ duly organized,
validly existing and in good standing under the laws of the
____________________ and is, and shall remain, in compliance with
the laws of each State in which any
54
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 by
which it is bound.
(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 reasonable good faith 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 that,
if determined adversely to the Master Servicer, would prohibit the
Master Servicer from entering into this Agreement or that, in the
Master Servicer's reasonable good faith 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, director, employee, consultant or advisor
of the Master Servicer with responsibilities concerning the
servicing and administration of any
55
Mortgage Loan is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c). Neither
the Master Servicer nor any of its officers, directors, employees,
consultants or advisors involved in the servicing or administration
of Mortgage Loans has been refused such coverage or insurance.
(viii) No regulatory or governmental approval is required for
the consummation by the Master Servicer of the transactions
contemplated herein, other than any such approvals as have been
obtained.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(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 Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall given prompt written notice
to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 2.05(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.05(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.
SECTION 2.06. Representations and Warranties of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Special Servicer is a ____________________ duly
organized, validly existing and in good standing under the laws of
__________________ and 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 by
which it is bound.
56
(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 reasonable good faith 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 that,
if determined adversely to the Special Servicer, would prohibit the
Special Servicer from entering into this Agreement or that, in the
Special Servicer's reasonable good faith 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, director, employee, consultant or advisor
of the Special Servicer with responsibilities concerning the
servicing and administration of any Specially Serviced Mortgage Loan
or REO Property is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c). Neither
the Special Servicer nor any of its officers, directors, employees,
consultants or advisors involved in the servicing or administration
of Mortgage Loans has been refused such coverage or insurance.
(viii) No regulatory or governmental approval is required for
the consummation by the Special Servicer of the transactions
contemplated herein, other than any such approvals as have been
obtained.
57
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(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 Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall given prompt written notice
to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties 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.
SECTION 2.07. Representations, Warranties and Covenants of the
Trustee and the REMIC Administrator.
(a) The Bank, both in its capacity as Trustee and its capacity as
REMIC Administrator, hereby represents and warrants to each of the other parties
hereto and for the benefit of the Certificateholders, as of the Closing Date,
that:
(i) The Bank is a _____________ duly organized, validly
existing and in good standing under the laws of
__________________________ 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, will 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 a
material breach of, any material agreement or other instrument to
which it is a party or by which it is bound.
(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,
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subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally and the rights of creditors of banks, 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 or
regulation of any federal, state or local governmental or regulatory
authority, which violation, in the Bank's reasonable good faith
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 that, if determined adversely
to the Bank, would prohibit the Bank from entering into this
Agreement or that, in the Bank's reasonable good faith 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.
(vii) No regulatory or governmental approval is required for
the consummation by the Bank of the transactions contemplated
herein, other than any such approvals as have been obtained.
(b) The representations, warranties and covenants of the Bank set
forth in Section 2.07(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 Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations,
warranties and covenants, the party discovering such breach shall given prompt
written notice to the other parties hereto.
(c) Any successor Trustee or REMIC Administrator shall be deemed to
have made, as of the date of its succession, each of the representations,
warranties and covenants 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. In any such case, the term "Bank" shall be deemed to
mean Trustee or REMIC Administrator, as appropriate.
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SECTION 2.08. [RESERVED]
SECTION 2.09. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
Subject to Sections 2.01 and 2.02, the Trustee hereby acknowledges
the assignment to it of the assets included in REMIC I. Concurrently with such
assignment and in exchange therefor, the Trustee, pursuant to the written
request of the Depositor executed by an officer of the Depositor, shall execute,
authenticate and deliver 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 (as holder of the REMIC I Regular Interests) 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 Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, 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 Class R-II
Certificates and the REMIC III 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 as REMIC II for the exclusive use and benefit of all
present and future Holders of the Class R-II Certificates and the REMIC III
Certificates.
SECTION 2.11. Execution, Authentication and Delivery of Class R-II
Certificates; Creation of REMIC II Regular Interests.
Concurrently with the assignment to it of the REMIC I Regular
Interests and in exchange therefor, the Trustee, pursuant to the written request
of the Depositor executed by an officer of the Depositor, shall execute,
authenticate and deliver to or upon the order of the Depositor, the Class R-II
Certificates in authorized denominations. The interests evidenced by the Class
R-II Certificates, together with the REMIC II Regular Interests, constitute the
entire beneficial ownership of REMIC II. The rights of the Class R-II
Certificateholders and REMIC III (as holder of the REMIC II Regular Interests)
to receive distributions from the proceeds of REMIC II in respect of the Class
R-II Certificates and the REMIC II Regular Interests, respectively, and all
ownership interests of the Class R-II Certificateholders and REMIC III in and to
such distributions, shall be as set forth in this Agreement.
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SECTION 2.12. Conveyance of REMIC II Regular Interests; Acceptance
of REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust as
REMIC III for the exclusive use and benefit of all present and future Holders of
the REMIC III Certificates.
SECTION 2.13. Execution, Authentication and Delivery of REMIC III
Certificates.
Concurrently with the assignment to it of the REMIC II Regular
Interests and in exchange therefor, the Trustee shall execute, authenticate and
deliver to or upon the order of the Depositor, the REMIC III Certificates in
authorized denominations evidencing the entire beneficial ownership of REMIC
III. The rights of the Holders of the respective Classes of REMIC III
Certificates to receive distributions from the proceeds of REMIC III in respect
of their REMIC III Certificates, and all ownership interests of such Holders in
and to such distributions, shall be as set forth in this Agreement.
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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, 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 Special
Servicer shall provide certain services with respect to Mortgage Loans that are
not Specially Serviced Mortgage Loans, as specifically provided herein, and 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. The Master Servicer
shall not, on behalf of the Trustee, obtain title to a Mortgaged Property.
(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; and (ii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments. In addition, without limiting
the generality of the foregoing, the Special Servicer is authorized and
empowered by the Trustee to execute and deliver, 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. 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 or the Special
62
Servicer, as appropriate, any limited powers of attorney and other documents
necessary or appropriate to enable it to carry out its 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 the 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.
SECTION 3.02. Collection of Mortgage Loan Payments.
Each of the Master Servicer or the Special Servicer shall undertake
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, follow
such collection procedures as are consistent with the Servicing Standard. In
addition, if a Mortgagor becomes delinquent with respect to any Monthly Payment
(including, without limitation, a Balloon Payment), the Master Servicer shall
promptly so notify the Special Servicer, shall keep the Special Servicer
apprised of all collection and customer service matters with respect to the
related Mortgage Loan and shall furnish to the Special Servicer copies of all
written communications between the Master Servicer and such Mortgagor.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall establish and maintain one or more
accounts (the "Servicing Accounts"), into which all Escrow Payments with respect
to the Mortgage Loans 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
rents (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 earned on the investment of funds in
Servicing Accounts maintained thereby, if and to the extent required by law or
the terms of the related Mortgage Loan. If the Master Servicer shall deposit in
a Servicing Account any amount not
63
required to be deposited therein, it may at any time withdraw such amount from
such Servicing Account, any provision herein to the contrary notwithstanding.
Promptly after any Escrow Payments are received by the Special Servicer from any
Mortgagor, and in any event within one Business Day after any such receipt, the
Special Servicer shall remit such Escrow Payments to the Servicing Account or
Servicing Accounts specified by the Master Servicer.
(b) Each of the Master Servicer and the Special Servicer shall, as
to those Mortgage Loans it is obligated to service hereunder, (i) maintain
accurate records with respect to the related 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. The Master Servicer, for purposes of effecting any such payment for which
it is responsible, shall disburse Escrow Payments as allowed under the terms of
the related Mortgage Loan, and, for purposes of effecting any such payment for
which the Special Servicer is responsible, the Master Servicer, upon the written
request of the Special Servicer, shall apply Escrow Payments as allowed under
the terms of the related Mortgage Loan; provided, however, that 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, 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, each of the Master
Servicer and the Special Servicer shall, as to those Mortgage Loans it is
obligated to service hereunder, 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 (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) and, if made by the Special Servicer, Section 3.19(b). No costs incurred
by the Master Servicer or the Special Servicer in effecting the payment of real
estate taxes, assessments 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 establish and maintain, as applicable,
one or more accounts (the "Reserve Accounts"), into which all Reserve Funds, if
any, shall be deposited and
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retained. As and to the extent appropriate, withdrawals of amounts so deposited
may be made to pay for, or to reimburse the related Mortgagor in connection
with, the related repairs, replacements, capital improvements and/or
environmental testing and remediation at the related Mortgaged Property if such
repairs, replacements, capital improvements and/or environmental testing and
remediation have been completed, and such withdrawals are made, 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 Loan documents, each Reserve
Account shall be an Eligible Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any action
or remediations are required to have been taken or completed pursuant to the
terms of the Mortgage Loan, the Master Servicer shall request from the Mortgagor
written confirmation of such action and remediations within a reasonable time
after the later of the Closing Date and the date as of which such action or
remediations are required to be or to have been taken or completed. To the
extent a Mortgagor shall fail to promptly respond to any inquiry described in
this Section 3.03(e), the Master Servicer shall determine whether the related
Mortgagor has failed to perform its obligations under the related Mortgage Loan.
SECTION 3.04. Collection Account and Distribution Account.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Collection Account"), held on behalf of the Trustee
in trust for the benefit of the Certificateholders. The Collection Account shall
be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the Collection Account, upon receipt (in the case of payments by
Mortgagors or other collections on the Mortgage Loans) or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of the Master Servicer in respect of the Mortgage Pool subsequent to the
Cut-off Date (other than in respect of principal and interest on the Mortgage
Loans due and payable 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 of the Mortgage Loans,
including, without limitation, Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans and
all late payment charges and charges for checks returned for insufficient
funds collected on the Mortgage Loans;
65
(iii) all Prepayment Premiums and Yield Maintenance Premiums
received in respect of any Mortgage Loan;
(iv) all Insurance Proceeds and Liquidation Proceeds (other than
Liquidation Proceeds described in clause (vi) of the definition thereof
that are required to be deposited in the Distribution Account pursuant to
Section 9.01) received in respect of any Mortgage Loan;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to investments of funds held in the Collection 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 hazard policy;
(vii) any amounts required to be transferred from any REO Account
pursuant to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a
Servicing Advance has been made.
The foregoing requirements for deposit in the Collection Account
shall be exclusive. Without limiting the generality of the foregoing, 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 Collection
Account. If the Master Servicer shall deposit in the Collection Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Collection Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer, as additional servicing compensation in accordance with Section
3.11(d), _____% of any assumption fees and _____% of any modification fees
collected by the Master Servicer with respect to Mortgage Loans other than
Specially Serviced Mortgage Loans and _____% of any assumption fees,
modification fees and Net Penalty Charges received by the Master Servicer with
respect to Specially Serviced Mortgage Loans. The Collection Account shall be
maintained as a segregated account, separate and apart from trust funds created
for mortgage pass-through certificates of other series serviced by the Master
Servicer 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 one Business Day after receipt, remit such
amounts to the Master Servicer for deposit into the
66
Collection 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 Collection
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, without recourse or warranty,
and shall deliver promptly, but in no event later than one Business Day 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.
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 Compensating Interest Payments required to be made by
the Master Servicer pursuant to Section 3.19(a); and
(iii) any Liquidation Proceeds paid by the Master Servicer or
Special Servicer 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 Collection Account pursuant to Section 9.01.
Any amounts paid by any party hereto to indemnify the Trust Fund pursuant
to any provision hereof shall be delivered to the Trustee for deposit in the
Distribution Account. The Trustee shall, upon receipt, deposit in the
Distribution Account any and all amounts received or, pursuant to Section 4.03,
advanced by the Trustee that are required by the terms of this Agreement to be
deposited therein.
(c) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Funds in the
Distribution Account shall remain
67
uninvested. The Master Servicer shall give notice to the other parties hereto of
the location of the Collection Account as of the Closing Date and of the new
location of the Collection 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 Collection Account and
the Distribution Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Collection 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 each Master
Servicer Remittance Date and any amounts that may be applied to make
P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse itself or the Trustee, as applicable, for
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances made thereby, the Master Servicer's and
the Trustee's respective rights to reimbursement pursuant to this
clause (ii) with respect to any P&I Advance (other than
Nonrecoverable Advances, which are reimbursable pursuant to clause
(vii) below) being limited to amounts that represent Late
Collections of interest and principal received in respect of the
particular Mortgage Loan or REO Loan as to which such P&I Advance
was made (net of the related Master Servicing Fees and Workout
Fees);
(iii) to pay to itself 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 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 interest thereon;
(iv) to pay to the Special Servicer, out of general
collections on the Mortgage Loans and any REO Properties, earned and
unpaid Property Servicing Fees in respect of each Mortgage Loan and
REO Loan and Special Servicing Fees in respect of each Specially
Serviced Mortgage Loan and REO Loan;
(v) to pay the Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Workout Fees and Liquidation
Fees to which it is
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entitled pursuant to, and from the sources contemplated by, the
third and fourth paragraphs of Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee,
as applicable, for any unreimbursed Servicing Advances made thereby,
the Master Servicer's, the Special Servicer's and the Trustee's
respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance being 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, 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 itself, the Special Servicer or the
Trustee, as applicable, out of general collections on the Mortgage
Loans and any REO Properties, for any unreimbursed Advances made
thereby that have been determined to be Nonrecoverable Advances;
(viii) to pay itself, the Special Servicer or the Trustee, as
applicable, any Advance Interest due and owing thereto, the Master
Servicer's, the Special Servicer's and the Trustee's respective
rights to payment pursuant to this clause (viii) being limited to
Penalty Charges collected in respect of the Mortgage Loan or REO
Loan as to which the related Advances were made thereby;
(ix) at or following such time as it 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(c), and insofar as payment has not already been made pursuant
to clause (viii) above, to pay itself, the Special Servicer or the
Trustee, as the case may be, out of general collections on the
Mortgage Loans and any REO Properties, any related Advance Interest
accrued and payable on such Advance;
(x) to reimburse the Trustee, out of general collections on
the Mortgage Loans and any REO Properties, for any advance made
thereby pursuant to Section 4.03(a) to cover any portion of a Master
Servicer Remittance Amount not remitted by the Master Servicer to
the Trustee on or before 10:00 a.m., New York City time, on the
Business Day immediately preceding the related Distribution Date,
together with any interest accrued and payable on such advance at
the Reimbursement Rate;
(xi) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income
earned in respect of
69
amounts held in the Collection Account as provided in Section
3.06(b), but only to the extent of the Net Investment Earnings with
respect to the Collection Account for any Collection Period, (B) any
Prepayment Interest Excesses collected on any of the Mortgage Loans
and (C) to the extent allocable to the period when the related
Mortgage Loan did not constitute a Specially Serviced Mortgage Loan
or REO Property, any Net Penalty Charges collected on the Mortgage
Loans;
(xii) to pay to the Special Servicer, as additional servicing
compensation in accordance with Section 3.11(b), any Net Penalty
Charges collected on the Mortgage Loans and not otherwise payable to
the Master Servicer pursuant to clause (xi) above;
(xiii) to pay itself, the Special Servicer, the REMIC
Administrator, the Depositor, or any of their respective directors,
officers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties, any
amounts payable to any such Person pursuant to Section 6.03;
(xiv) to pay, out of general collections on the Mortgage Loans
and any REO Properties, for (A) the advice of counsel or financial
advisers contemplated by Section 3.17(a), (B) the cost of the
Opinion of Counsel contemplated by 11.02(a), (C) the cost of
recording this Agreement in accordance with Section 11.02(a) and (D)
the expense of any consultant hired by the Trustee pursuant to
Section 3.18(e);
(xv) to pay itself, the Special Servicer, 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;
(xvi) to pay any cost or expense in respect of any Mortgage
Loan or REO Property that the Master Servicer, the Special Servicer
or the Trustee, as the case may be, has incurred pursuant to Section
3.11(h); and
(xvii) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any particular
time (after withdrawing any portion of such amounts deposited in the Collection
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 Collection Account shall be
made in the following priority and subject to the following rules: (x) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such
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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; and (y) if the
payment, reimbursement or remittance can be made from any funds on deposit in
the Collection Account, then (following any withdrawals made from the Collection
Account in accordance with the immediately preceding clause (x) 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.
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 Collection Account pursuant to any of
clauses (ii) through (xvi) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the Collection
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 Collection Account.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account for each 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 itself or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05;
(iii) to pay for the cost 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;
(iv) to pay any and all federal, state and local taxes imposed
on any of the REMICs created hereunder or on the assets or
transactions of any such REMIC, together with all incidental costs
and expenses, and any and all expenses
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relating to tax audits, if and to the extent that either (A) none of
it, the Master Servicer, the Special Servicer or the REMIC
Administrator are liable therefor pursuant to Section 10.01(d)
and/or Section 10.01(h) or (B) any such Person that may be so liable
has failed to timely make the required payment; and
(v) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Trustee, the Depositor, the Master Servicer and the Special
Servicer shall in all cases have a right prior to the Certificateholders to any
particular funds on deposit in the Collection Account and the Distribution
Account from time to time for the reimbursement or payment of compensation,
Advances (with interest thereon at the Reimbursement Rate) and their respective
expenses hereunder (or, in the case of such expenses, to have such funds paid
directly to third party contractors from any invoices approved by the Trustee,
the Depositor, the Master Servicer or the Special Servicer, as applicable), but
only if and to the extent such compensation, Advances (with interest) and
expenses are to be reimbursed or paid from such particular funds on deposit in
the Collection Account or the Distribution Account pursuant to the express terms
of this Agreement. Any reimbursements of Advances in respect of any particular
Mortgage Loan or REO Property out of the Collection Account pursuant to any of
clauses (ii), (vi) and (vii) of Section 3.05(a), and any payments of interest
thereon out of the Collection Account pursuant to either of clauses (viii) and
(ix) of Section 3.05(a), shall be made (to the extent of their respective
entitlements to such reimbursements and/or payments): first, to the Trustee; and
second, pro rata, to the Master Servicer and Special Servicer.
SECTION 3.06. Investment of Funds in the Collection Account and the
REO Account.
(a) The Master Servicer may direct (pursuant to a standing order or
otherwise) any depository institution maintaining the Collection Account, and
the Special Servicer may direct (pursuant to a standing order or otherwise) 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 following 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. Any investment of funds in an
Investment Account shall be made in the name of the Trustee (in its capacity as
such). The Master Servicer (with respect to Permitted Investments of amounts in
the Collection Account) and the Special Servicer (with respect to Permitted
Investments of amounts in the REO Account), on behalf of the Trustee, 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
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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 Collection
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, the Trustee 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 Collection 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
either Investment Account, the Master Servicer (in the case of the Collection
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.
(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, the Master Servicer, the Special Servicer or the Trustee (if it has
determined in good faith that the Master Servicer or the Special Servicer are
not taking such action as is appropriate) 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, the Trustee shall, take such action as may
be appropriate to enforce such payment or
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performance, including, without limitation, the institution and prosecution of
appropriate proceedings.
(d) Amounts on deposit in the Distribution Account shall remain
uninvested.
(e) 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 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) The Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgaged Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans) shall cause to be maintained for each
Mortgaged Property all insurance coverage as is required under the related
Mortgage; provided that if and to the extent that any such Mortgage permits the
holder thereof any discretion (by way of consent, approval or otherwise) as to
the insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer or the Special Servicer, as the case may be, shall exercise such
discretion in a manner consistent with the Servicing Standard, with a view
towards requiring insurance comparable to that required under other Mortgage
Loans with express provisions governing such matters; and provided further that,
if and to the extent that a Mortgage so permits, the related Mortgagor shall be
required to obtain the required insurance coverage from Qualified Insurers that,
in each case, have a claims-paying rating no lower than two rating categories
below the highest rated Certificates outstanding, and in any event no lower than
"___" (or an equivalent rating), from each of the Rating Agencies. Subject to
Section 3.17(b), the Special Servicer shall also cause to be maintained for each
REO Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage and at a minimum, (i) hazard insurance with
a replacement cost rider, (ii) business interruption or rental loss insurance
for at least 12 months, and (iii) comprehensive general liability insurance, in
each case, in an amount customary for the type and geographic location of such
REO Property and consistent with the Servicing Standard; provided that all such
insurance shall be obtained from Qualified Insurers that, in each case, if
providing casualty insurance, shall have a claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event no lower than "[A]" (or an equivalent rating), from each of the Rating
Agencies. All such insurance policies shall contain (if they insure against loss
to property) a "standard" mortgagee clause, with loss payable to the Master
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of Mortgage Loans), or shall name the Trustee as the insured, with loss
payable to the Special Servicer on behalf of the Trustee (in the case of
insurance maintained in respect of REO Properties), and shall be issued by an
insurer authorized under applicable law to issue such insurance. Any amounts
collected by the Master Servicer or the Special Servicer under any such policies
(other than amounts to be applied to the
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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 Collection 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
in maintaining any such insurance shall not, for purposes hereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to unpaid principal balance of the related Mortgage Loan, notwithstanding
that the terms of such Mortgage Loan so permit.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy insuring
against hazard losses on all of the Mortgage Loans and/or REO Properties that it
is required to service and administer, then, to the extent such policy (i) is
obtained from a Qualified Insurer having a claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event no lower than "___" (or an equivalent rating), from each of the Rating
Agencies, 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 related Mortgaged Properties and/or REO
Properties. Such 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 a hazard insurance policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
that would have been covered by such policy, promptly deposit into the
Collection Account from its own funds the amount not otherwise payable under the
blanket policy in connection with such loss or losses because of such deductible
clause. The Master Servicer or the Special Servicer, as appropriate, shall
prepare and present, on behalf of itself, the Trustee and Certificateholders,
claims under any such blanket policy in a timely fashion in accordance with the
terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Mortgage Loans or REO Properties exist as part of the Trust Fund) keep
in force with a Qualified Insurer having a claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event no lower than investment grade, from each of the Rating Agencies, a
fidelity bond in such form and amount as would permit it to be a qualified FNMA
seller-servicer of multifamily mortgage loans, or in such other form and amount
as would not adversely affect any rating assigned by either Rating Agency to the
Certificates (as evidenced in writing from each such Rating Agency). 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
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Servicer, as the case may be. Such fidelity bond shall provide that it may not
be canceled without ten days' prior written notice to the Trustee.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with a Qualified Insurer having a claims-paying rating no
lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than investment grade, from each of the
Rating Agencies, a policy or policies of insurance covering loss occasioned by
the errors and omissions of its officers, employees and agents in connection
with its servicing obligations hereunder, which policy or policies shall be in
such form and amount as would permit it to be a qualified FNMA seller-servicer
of multifamily mortgage loans, or in such other form and amount as would not
adversely affect any rating assigned by either Rating Agency to the Certificates
(as evidenced in writing from each such Rating Agency). Each of the Master
Servicer and the Special Servicer shall be deemed to have complied with the
foregoing provisions if an Affiliate thereof has such insurance and, by the
terms of such policy or policies, the coverage afforded thereunder extends to
the Master Servicer or the Special Servicer, as the case may be. Any such errors
and omissions policy shall provide that it may not be canceled without ten days'
prior written notice to the Trustee.
SECTION 3.08. Enforcement of Alienation Clauses.
The Master Servicer (at the direction of the Special Servicer), in
the case of Mortgage Loans other than Specially Serviced Mortgage Loans, and the
Special Servicer, in the case of Specially Serviced Mortgage Loans, on behalf of
the Trustee as the mortgagee of record, shall enforce the restrictions contained
in any Mortgage on transfers or further encumbrances of the related Mortgaged
Property and on transfers of interests in the related Mortgagor, unless the
Special Servicer has determined, in its reasonable good faith judgment, that
waiver of such restrictions would be in accordance with the Servicing Standard;
provided that the Special Servicer shall not waive, or instruct the Master
Servicer to waive, any right it has, or grant any consent, or instruct the
Master Servicer to 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
downgrade, qualification or withdrawal of the rating then assigned by such
Rating Agency to any Class of Certificates. After having made any such
determination, the Special Servicer shall deliver to the Trustee and the Master
Servicer an Officer's Certificate setting forth the basis for such
determination. The Master Servicer shall provide the Special Servicer with all
information as it may reasonably request in order to make such determination.
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SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b) through
3.09(d), exercise reasonable efforts, consistent with the Servicing Standard, to
foreclose upon or otherwise comparably convert the ownership of properties and
other collateral 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, including, without limitation, pursuant to
Section 3.20. All costs and expenses incurred by the Special Servicer in any
such proceedings shall be Servicing Advances. Nothing contained in this Section
3.09 shall be construed so as to require the Special Servicer, on behalf of the
Trust Fund, to make a bid 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 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
bids to be made in a manner consistent with the Servicing Standard. If and when
the Special 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 bidding at foreclosure or otherwise, the Special
Servicer is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall constitute a Servicing Advance).
Notwithstanding any other provision of this Agreement, no Mortgaged
Property shall be acquired by the Trust Fund in such circumstances or manner or
pursuant to any terms that would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (unless all such REO Property not treated as "foreclosure property"
held by REMIC I at any given time constitutes not more than a de minimis amount
of the assets of REMIC I within the meaning of Treasury regulation Section
1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section 3.17(a),
subject the Trust Fund to the imposition of any federal income taxes under the
Code.
(b) The Special Servicer shall not acquire any personal property on
behalf of the Trust Fund pursuant to this Section 3.09 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 cost of which shall be a Servicing Advance) to the
effect that the holding of such personal property as part of the
Trust Fund will not cause the imposition of a tax on any of REMIC I,
REMIC II or REMIC III under the REMIC Provisions or cause any of
REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at any
time that any Certificate is outstanding.
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(c) Notwithstanding the foregoing provisions of this Section 3.09,
the Special Servicer shall not, on behalf of the Trustee, obtain title to a
Mortgaged Property by foreclosure, deed in lieu of foreclosure or otherwise, 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, could, in the
reasonable good faith judgment of the Special Servicer, exercised in accordance
with the Servicing Standard, 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:
(i) 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 conducted by an Independent Person who regularly
conducts Phase I Environmental Assessments and performed during the
twelve-month period preceding any such acquisition of title or other
action, that the Mortgaged Property is in compliance with applicable
environmental laws and regulations and 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 regulations; or
(ii) in the event that the determination described in clause
(c)(i) above cannot be made, the Special Servicer has previously
determined in accordance with the Servicing Standard, on the same
basis as described in clause (c)(i) above, that it would maximize
the recovery to the 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) to acquire title to or possession of the
Mortgaged Property and to take such remedial, corrective and/or
other further actions as are necessary to bring the Mortgaged
Property into compliance with applicable environmental laws and
regulations and to appropriately address any of the circumstances
and conditions referred to in clause (c)(i) above;
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee and the Master
Servicer, specifying all of the bases for such determination, such Officer's
Certificate to be accompanied by all related environmental reports. 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 (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,
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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 neither of the conditions set forth in clauses (i) and (ii)
of the first sentence of Section 3.09(c) has 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) 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.
(e) The Special Servicer shall report to the Trustee and the Master
Servicer monthly in writing as to any actions taken by the Special Servicer with
respect to any Mortgaged Property as to which neither of the conditions set
forth in clauses (i) and (ii) of the first sentence of Section 3.09(c) has been
satisfied, in each case until the earliest to occur of satisfaction of either of
such conditions, release of the lien of the related Mortgage on such Mortgaged
Property and the related Mortgage Loan becoming a Corrected Mortgaged Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking 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 and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) The Special Servicer shall prepare and file information returns
with respect to the receipt of mortgage interest received in a trade or business
from individuals, reports of foreclosures and abandonments of any Mortgaged
Property and information returns relating to 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 information returns and reports shall be
in form and substance sufficient to meet the reporting requirements imposed by
Sections 6050H, 6050J and 6050P of the Code. The Special Servicer shall provide
to the Master Servicer on a timely basis all information to be included in such
reports and information returns.
(h) The Special Servicer shall maintain accurate records, prepared
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 and the Master Servicer no later than the third Business Day following
such Final Recovery Determination.
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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 of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall promptly so
notify the Trustee and request delivery to it of the related Mortgage File (such
notice and request to be effected by delivering to the Trustee a Request for
Release in the form of Exhibit D-1 attached hereto, which Request for Release
shall be accompanied by the form of any release or discharge to be executed by
the Trustee and 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 Collection Account pursuant to Section 3.04(a) have been or
will be so deposited). Upon receipt of such Request for Release, the Trustee
shall promptly release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer and shall deliver to the Master Servicer
such accompanying release or discharge, duly executed. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Collection Account or the Distribution 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), the Trustee,
upon request of the Master Servicer and receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto signed by a
Servicing Officer thereof, or upon request of the Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit D-2
attached hereto, 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 upon the Special Servicer's
delivery to the Trustee of an Officer's Certificate stating that (i) such
Mortgage Loan was liquidated and all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Collection Account pursuant to Section 3.04(a) have been or will be so deposited
or (ii) such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Trustee to the Master Servicer or the Special
Servicer, as applicable.
(c) Within seven Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, any court pleadings, requests for
trustee's sale or other documents reasonably 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 to defend any legal action or counterclaim filed against the Trust
Fund, the Master Servicer or the Special Servicer; provided that the Trustee may
alternatively execute and
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deliver to the Special Servicer, in the form supplied to the Trustee by the
Special Servicer, a limited power of attorney issued in favor of the Special
Servicer and empowering the Special Servicer to execute and deliver any or all
of such pleadings or documents on behalf of the Trustee. Together with such
pleadings or documents (or such power of attorney empowering the Special
Servicer to execute the same on behalf of the Trustee), the Special Servicer
shall deliver to the Trustee an Officer's Certificate requesting that such
pleadings or documents (or such power of attorney empowering the Special
Servicer to execute the same on behalf of the Trustee) be executed by the
Trustee and certifying as to the reason such pleadings or documents are required
and that the execution and delivery thereof by the Trustee (or by the Special
Servicer on behalf of 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 Master Servicing Fee Rate on the basis
of the same principal amount and for the same period respecting which the
related interest payment due on such Mortgage Loan or deemed to be due on such
REO Loan is computed. The Servicing Fee with respect to any Mortgage Loan or REO
Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
Earned but unpaid Master Servicing Fees shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan and REO
Revenues allocable as interest on each REO Loan. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan
or REO Loan out of Insurance Proceeds or Liquidation Proceeds, to the extent
permitted by Section 3.05(a). The right to receive the Master Servicing Fee may
not be transferred in whole or in part except in connection with the transfer of
all of the Master Servicer's responsibilities and obligations under this
Agreement.
(b) The Master Servicer shall also be entitled to additional
servicing compensation in the form of: (i) any Prepayment Interest Excesses;
(ii) to the extent allocable to the period when the related Mortgage Loan did
not constitute a Specially Serviced Mortgage Loan or REO Property, any Net
Penalty Charges or any similar charges collected on the Mortgage Loans; (iii)
interest or other income earned on deposits in the Collection Account, in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to the Collection Account for each Collection
Period); and (iv) 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 thereby. The Master
Servicer shall be required to pay out of its own funds all expenses incurred by
it in connection with its
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servicing activities hereunder (including, without limitation, payment of any
amounts due and owing to any of Sub-Servicers 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
Collection 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 Property 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
Property Servicing Fee shall accrue from time to time at the Property Servicing
Fee Rate on the basis of the same principal amount and for the same period
respecting which any related interest payment due on such Mortgage Loan or
deemed to be due on such REO Loan is computed. The Property 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 Property Servicing Fees shall
be payable monthly out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Collection Account pursuant to Section 3.05(a).
As further 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 period respecting which any related interest
payment due on such Mortgage Loan or deemed to be due on such REO Loan is
computed. 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
Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Loan. As to each Corrected Mortgage Loan, the Workout Fee shall be
payable, subject to the proviso to clause (e) of the definition of "Specially
Serviced Mortgage Loan",out of, and shall be calculated by application of the
Workout Fee Rate to, each collection of interest and principal (net of related
unpaid or unreimbursed Master Servicing Fees, Property Servicing Fees, Special
Servicing Fees and Advances), together with any collection of a Prepayment
Premium or Yield Maintenance Premium, 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 would become payable if and when such
Mortgage Loan again became a Corrected Mortgage Loan. If the Special Servicer is
terminated
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other than for cause or resigns in accordance with 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 or Insurance Proceeds (other than in connection with the purchase of
any such Specially Serviced Mortgage Loan or REO Property by the Special
Servicer or the Master Servicer pursuant to Section 3.18 or Section 9.01 or by
the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement). As
to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation
Fee shall be payable, subject to the proviso to clause (e) of the definition of
"Specially Serviced Mortgage Loan", out of, and shall be calculated by
application of the Liquidation Fee Rate to, such full or discounted payoff,
Liquidation Proceeds and/or Insurance Proceeds, in each case net of any portion
of such payment or proceeds payable or reimbursable to the Master Servicer or
the Special Servicer to cover related unpaid or unreimbursed Master Servicing
Fees, Property Servicing Fees, Special Servicing Fees and/or Advances. The
Liquidation Fee with respect to any such Specially Serviced Mortgage Loan will
not be payable if such Mortgage Loan becomes a Corrected Mortgage Loan.
Notwithstanding anything herein to the contrary, no Liquidation Fee will be
payable in connection with the receipt of, or out of, Liquidation Proceeds
collected as a result of the purchase of any Specially Serviced Mortgage Loan or
REO Property described in the parenthetical to the first sentence of this
paragraph.
The Special Servicer's right to receive the Property Servicing Fee,
the Special Servicing Fee, the Workout Fee and/or the Liquidation Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement.
(d) Additional servicing compensation in the form of ____ % of any
modification fees and ___% of any assumption fees received on or with respect to
Mortgage Loans other than Specially Serviced Mortgage Loans and any modification
fees and assumption fees received on or with respect to any Specially Serviced
Mortgage Loans, may be retained by the Special Servicer (to the extent collected
by the Special Servicer), or shall be promptly paid to the Special Servicer by
the Master Servicer (to the extent collected by the Master Servicer), and in any
event shall not be required to be deposited in the Collection Account pursuant
to Section 3.04(a). The Special Servicer shall also be entitled to any Net
Penalty Charges received on the Mortgage Loans that are not required to be paid
as additional servicing compensation to the Master Servicer. To the extent
collected by the Special Servicer, additional servicing
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compensation in the form of any Net Penalty Charges that the Master Servicer is
entitled to as additional servicing compensation shall be paid promptly by the
Special Servicer to the Master Servicer. The Special 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 of 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 Collection Account or the REO Account, 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 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 the Special Servicer. If such Advance is not made by the
Master Servicer or the Special Servicer within three days after such notice then
(subject to Section 3.11(g) below), the Trustee shall make such 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)(iv) and Section 7.01(a)(v), respectively.
(f) The Special 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 for so long as such
Servicing Advance is outstanding, such interest to be payable: first, out of
Penalty Charges collected on the Mortgage Loan or REO Loan as to which such
Advance relates; and then, to the extent such Penalty Charges are insufficient,
and only after such Advance has been reimbursed pursuant to this Agreement, out
of general collections on the Mortgage Loans and REO Properties on deposit in
the Collection Account. 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 Collection 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 that it determines in its reasonable good faith
judgment would constitute a Nonrecoverable Servicing Advance. A determination by
any Person with an obligation hereunder to make Servicing Advances that it has
made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, shall be made by
such Person in its reasonable good faith judgment and shall be evidenced by an
Officer's Certificate delivered promptly to the Trustee, the Depositor, and each
Holder of a Class B-3 Certificate, a Class B-4 Certificate or a Class C
Certificate, setting forth the basis for such determination, together with a
copy of an Appraisal of the related Mortgaged Property or REO
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Property performed within the twelve months preceding such determination, and
further accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination. Notwithstanding the foregoing, the Trustee
shall be entitled to conclusively 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 conclusively rely on any determination of nonrecoverability that may
have been made by the Special Servicer with respect to a particular Servicing
Advance. A copy of any such Officer's Certificate (and accompanying information)
of the Master Servicer shall also be delivered promptly to the Special Servicer,
a copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer, and a
copy of any such Officer's Certificate (and accompanying information) of the
Trustee shall also be promptly delivered to the Master Servicer and the Special
Servicer.
(h) Notwithstanding anything to the contrary set forth herein, any
of the Master Servicer, the Special Servicer or the Trustee, as applicable, may,
in its sole discretion, make any Nonrecoverable Servicing Advance if it has
determined in its reasonable good faith judgment that making such Nonrecoverable
Servicing Advance is in the best interests of the Certificateholders, as
evidenced by an Officer's Certificate delivered promptly to the Trustee (unless
it is the Person making such Advance), the Depositor, and each Holder of a Class
B-3 Certificate, a Class B-4 Certificate or a Class C Certificate, setting forth
the basis for such determination and accompanied by any information that such
Person may have obtained that supports such determination. A copy of any such
Officer's Certificate (and accompanying information) of the Master Servicer
shall also be delivered promptly to the Special Servicer, a copy of any such
Officer's Certificate (and accompanying information) of the Special Servicer
shall also be promptly delivered to the Master Servicer and a copy of any such
Officer's Certificate (and accompanying information) of the Trustee shall also
be promptly delivered to the Master Servicer, the Special Servicer and the
Depositor.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall at its expense perform or cause to be
performed an inspection of each Mortgaged Property at least once per calendar
year and as soon as practicable (but in any event not later than 60 days) after
the related Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Special Servicer shall prepare a written report of each such inspection
performed by it that sets forth in detail the condition of the Mortgaged
Property and that specifies the existence of: (i) any sale, transfer or
abandonment of the Mortgaged Property of which the Special Servicer is aware,
(ii) any change in the condition, occupancy, or value of the Mortgaged Property
that the Special Servicer, in its reasonable good faith judgment, considers
material, or (iii) any waste committed on the Mortgaged Property. The Special
Servicer
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shall deliver to the Trustee, the Depositor and the Master Servicer a copy of
each such written report prepared by it within 45 days of the related
inspection.
(b) The Special Servicer shall make reasonable efforts to collect
promptly from each related Mortgagor quarterly and annual operating statements,
budgets and rent rolls of the related Mortgaged Property, and financial
statements of such Mortgagor, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage. In addition, the Special Servicer
shall cause quarterly and annual operating statements, budgets and rent rolls to
be regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation and deliver a report summarizing such
information as described in the second paragraph of Section 4.02(c).
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, to the Depositor and, in the case of the Special Servicer, to
the Master Servicer, on or before March 31 of each year, beginning March 31,
199__, an Officer's Certificate stating, as to the signer thereof, 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 has been made under such 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 fulfilled all of its obligations under
this Agreement in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof and (iii) the
Master Servicer or the Special Servicer, as the case may be, has received no
notice regarding the qualification, or challenging the status, of any portion of
the Trust Fund as a REMIC from the Internal Revenue Service or any other
governmental agency or body or, if it has received any such notice, specifying
the details thereof.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 199__, each
of the Master Servicer and the Special Servicer at its expense shall cause a
firm of independent public accountants (which may also render other services to
the Master Servicer or the Special Servicer) with at least 250 professionals and
that is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Trustee and to the Depositor and, in the case of the
Special Servicer, to the Master Servicer to the effect that (i) it has obtained
a letter of representation regarding certain matters from the management of the
Master Servicer or the Special Servicer, as the case may be, which includes an
assertion that the Master Servicer or the Special Servicer, as the case may be,
has complied with certain minimum mortgage loan servicing standards (to the
extent applicable to commercial and multifamily mortgage loans), identified in
the Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage
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Bankers Association of America, with respect to the servicing of commercial and
multifamily mortgage loans during the most recently completed calendar year and
(ii) on the basis of an examination conducted by such firm in accordance with
standards established by the American Institute of Certified Public Accountants,
such representation is fairly stated in all material respects, subject to such
exceptions and other qualifications that may be appropriate. In rendering its
report such firm may rely, as to matters relating to the direct servicing of
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.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Depositor, the Rating Agencies, each Holder of a Class B-3,
Class B-4 or Class C Certificate and the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, access to any records regarding the Mortgage Loans and the
servicing thereof within its control, except to the extent it is prohibited from
doing so by applicable law or contract or to the extent such information is
subject to a privilege under applicable law to be asserted on behalf of the
Certificateholders. 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, on behalf of the Trust Fund, shall
sell any REO Property within two years after REMIC I acquires ownership of such
REO Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies, more than sixty days prior to the expiration of
such two year period, and 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, the Special Servicer and the REMIC Administrator, to the effect that
the holding by REMIC I of such REO Property subsequent to the second anniversary
of such acquisition will not result in the imposition of taxes on "prohibited
transactions" (as defined in Section 860F of the Code) of any of REMIC I, REMIC
II or REMIC III or cause any of REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding. Regardless
of whether the Special Servicer applies for or is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel referred to in clause (ii) of such sentence, the Special
Servicer shall act diligently and prudently to liquidate such REO Property on a
timely basis. If the Special Servicer is granted such REO Extension or obtains
such Opinion of Counsel, the Special Servicer shall sell such REO Property
within such period longer than two years as is permitted by such REO
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Extension or contemplated by such Opinion of Counsel, as the case may be. Any
expense incurred by the Special Servicer in connection with its applying for and
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 a Servicing Advance.
(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"), 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. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, upon receipt, all REO Revenues, Insurance Proceeds and Liquidation
Proceeds received in respect of an REO Property. 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, leasing, 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 Collection Account or deliver to the Master
Servicer (which shall deposit such amounts into the Collection 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 such proceeds and collections as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
leasing, 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).
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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 Fund. 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 reasonable good faith judgment of the Special Servicer, it is
commercially feasible) so lease or otherwise 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 Fund 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 REMIC Administrator's federal income tax reporting
position with respect to the various sources of income that the
Trust Fund 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
Fund 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
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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 in either case on the reasonable good faith
judgment of the Special Servicer as to which means would be in the best interest
of the Certificateholders 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 the respective REO Property
under the same circumstances. Both the Special Servicer and the REMIC
Administrator may consult with counsel or financial advisers at the expense of
the Trust Fund 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 Fund, the other parties hereto or
each other for errors in judgment made in good faith in the exercise of their
discretion while performing their respective responsibilities under this Section
3.17(a). 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 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 REMIC I, REMIC II or
REMIC III 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 Fund 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;
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(iii) any ground rents in respect of such REO Property; and
(iv) all other 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 (subject to
its right to be reimbursed therefor as provided in Sections 3.05(a) and 3.19(b)
hereof) advance such amounts as are necessary for such purposes unless (as
evidenced by an Officer's Certificate delivered to the Trustee) the Special
Servicer would not make such advances if the Special Servicer owned such REO
Property or the Special Servicer determines, in its reasonable good faith
judgment, that such advances would be Nonrecoverable Servicing Advances;
provided, however, that the Special Servicer may make any such Servicing Advance
without regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings.
(c) The Special Servicer may 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 Fund) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor, in a
timely manner, (A) 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
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(vi) such Independent Contractor is acceptable to each Rating
Agency, and such appointment 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 by each
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. If the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater than the revenues available from such property, the excess of such costs
over such revenues shall be a Servicing Advance.
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 2.02, 2.03 and 9.01.
(b) [RESERVED]
(c) If the Special Servicer has determined, in its reasonable good
faith judgment, that any Defaulted Mortgage Loan will become subject to
foreclosure proceedings, the Special Servicer shall promptly so notify in
writing the Trustee and the Master Servicer. Either the Special Servicer or,
subject to the Special Servicer's prior rights in such regard, the Master
Servicer may at its option, within 30 days after receipt of such notice,
purchase such Mortgage Loan from the Trust Fund, 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 Collection 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(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 Fund. Such offer shall
be made in a commercially reasonable manner
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(which, for purposes hereof, includes an offer to sell without representation or
warranty other than customary warranties of title and condition, if liability
for breach thereof is limited to recourse against the Trust Fund) for a period
of not less than 10 days. Unless the Special Servicer determines that acceptance
of any bid would not be in the best economic interests of the Trust Fund, the
Special Servicer shall accept the highest cash bid received from any Person that
constitutes a fair price for such Mortgage Loan. In the absence of any bid
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.
The Special Servicer shall use its best efforts to solicit bids 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 bids are received
contemporaneously, highest) cash bid received from any Person that constitutes a
fair price for such REO Property. If the Special Servicer reasonably believes
that it will be unable to realize a fair price 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 bid, 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 a bid to purchase any such
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or REO Property
pursuant hereto.
(e) Whether any cash bid 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 bid is
from an Interested Person, by the Trustee.
In determining whether any bid 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 be entitled to rely on the most recent
Appraisal in the related Servicing File conducted in accordance with this
Agreement within the preceding 12-month period or, in the absence of any such
Appraisal, on a new Appraisal, or if the most recent Appraisal is not more than
12 months old but there has been a material change in such Mortgaged Property or
REO Property during the prior 12 months, on an updated Appraisal, in any case to
be obtained by the Special Servicer (the cost of which shall constitute a
Servicing Advance). On making any such determination of fair price based on the
Appraisal, the Trustee shall be entitled to retain and may rely on the
determinations of professional consultants. The cost of any such consultants
shall be an expense of the Trust Fund reimbursable to the Trustee from the funds
on deposit in the Collection
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Account. The appraiser conducting any such new Appraisal shall be selected by
the Special Servicer if the Special Servicer is not bidding with respect to a
Defaulted Mortgage Loan or REO Property and shall be selected by the Master
Servicer if the Special Servicer is bidding and by the Trustee if both the
Master Servicer and the Special Servicer are bidding. Where any Interested
Person is among those bidding with respect to a Defaulted Mortgage Loan or REO
Property, the Special Servicer shall require that all bids be submitted to it
(and, if the Special Servicer is bidding, shall be submitted by it to the
Trustee) in writing and be accompanied by a refundable deposit of cash in an
amount equal to 5% of the bid amount.
In determining whether any bid 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 the results of any
Appraisal described above, and 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).
The Purchase Price for any such Mortgage Loan or REO Property shall
in all cases be deemed a fair price. Notwithstanding the other provisions of
this Section 3.18, no cash bid from the Special Servicer or any Affiliate
thereof shall constitute a fair price for any Defaulted Mortgage Loan or REO
Property unless such bid is the highest cash bid received and at least two
independent bids (not including the bid of the Special Servicer or any
Affiliate) have been received. In the event the bid of the Special Servicer or
any Affiliate thereof is the only bid received or is the higher of only two bids
received, then additional bids shall be solicited. If an additional bid or bids,
as the case may be, are received and the original bid of the Special Servicer or
any Affiliate thereof is the highest of all cash bids received, then the bid of
the Special Servicer or such Affiliate shall no longer be deemed not to
constitute a fair price. A bid of the Special Servicer shall not be accepted in
the absence of a determination by the Trustee, as provided above in this Section
3.18(e), that such bid constitutes a fair price for any Defaulted Mortgage Loan
or REO Property. Any bid by the Special Servicer shall be unconditional and if
accepted the Defaulted Mortgage Loan or REO Property shall be transferred to the
Special Servicer without recourse, representation or warranty other than
customary representations as to title given in connection with the sale of a
mortgage loan or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special
Servicer shall act on behalf of the Trustee in negotiating with independent
third parties 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 bidders, 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 bids without obligation to
deposit such amounts into the
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Collection Account. Any sale of a Defaulted Mortgage Loan or any REO Property
shall be final and without recourse to the Trustee or the Trust Fund, and if
such sale is consummated in accordance with the terms of this Agreement, neither
the Special Servicer nor 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, except in the case of the Special Servicer, 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 bid
if the Special Servicer determines, in accordance with the Servicing Standard,
that rejection of such bid would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash bid (from
any Person other than itself or an Affiliate) if it determines, in accordance
with the Servicing Standard, that acceptance of such bid would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower bid is more likely to perform its obligations or the terms
offered by the prospective buyer making the lower bid are more favorable).
SECTION 3.19. Additional Obligations of Master Servicer.
(a) 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 amount of Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received during the most recently ended Collection Period,
and (ii) the total amount of Master Servicing Fees received by the Master
Servicer during such Collection Period plus any Prepayment Interest Excesses
received during such Collection Period.
(b) 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 from its own funds the Special Servicer for any
Servicing Advances made by but not previously reimbursed 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(b), 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 actually made such Advance, and accordingly, the Master Servicer shall
be entitled to reimbursement for such Advance, together with interest thereon in
accordance with Sections 3.05(a) and 3.11(f), at the same time, in the
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same manner and to the same extent as the Master Servicer would otherwise have
been entitled if it had actually made such Servicing Advance at the time the
Special Servicer did.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Advance, such
request to be made in writing and in a timely manner that does not adversely
affect the interests of any Certificateholder; provided, however, that the
Special Servicer shall have an obligation to make any Emergency Advance. The
Master Servicer shall have the obligation to make any such Servicing Advance
(other than an Emergency Advance) that it is requested by the Special Servicer
to make within ten days of the Master Servicer's receipt of such request. The
Special Servicer shall be relieved of any obligations with respect to an Advance
that it requests the Master Servicer to make (regardless of whether or not the
Master Servicer shall make such Advance) other than an Emergency Advance. The
Master Servicer shall be entitled to reimbursement for any Servicing Advance
made by it at the direction of the Special Servicer, together with interest
thereon in accordance with Sections 3.05(a) and 3.11(f), 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(b),
the Master Servicer shall not be required to reimburse the Special Servicer for,
or to 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 for which the Special Servicer is requesting reimbursement, or
which the Special Servicer is directing the Master Servicer to make, hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is in fact a Nonrecoverable Servicing Advance. The Master Servicer
shall notify the Special Servicer in writing of such determination and, if
applicable, such Nonrecoverable Servicing Advance shall be reimbursed to the
Special Servicer pursuant to Section 3.05(a).
(c) Promptly (and, in any event, within 60 days) following the
earliest of (i) the date on which any Mortgage Loan becomes a Modified Mortgage
Loan, (ii) the 60th day (or, in the case of a Modified Mortgage Loan, the 30th
day) after the occurrence of any uncured delinquency in Monthly Payments with
respect to any Mortgage Loan, (iii) the date on which a receiver is appointed
and continues in such capacity in respect of the Mortgaged Property securing any
Mortgage Loan and (iv) the date on which the Mortgaged Property securing any
Mortgage Loan becomes an REO Property (each such Mortgage Loan, a "Required
Appraisal Loan"), the Special Servicer 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 a Servicing
Advance.
With respect to each Required Appraisal Loan (unless such Required
Appraisal Loan has become a Corrected Mortgage Loan and has remained current for
twelve consecutive
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Monthly Payments, and no other Servicing Transfer Event has occurred with
respect thereto during such twelve months), the Special Servicer shall, within
30 days of each anniversary of such Required Appraisal Loan's having become
such, order an update of the prior Appraisal (the cost of which will be a
Servicing Advance). Based upon such Appraisal, the Special Servicer shall
redetermine and report to the Trustee the Appraisal Reduction Amount, if any,
with respect to such Required Appraisal Loan.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer may, consistent with the Servicing Standard
(but the Master Servicer may not) agree to any modification, waiver or amendment
of any term of, forgive interest (including, without limitation, Default
Interest and late payment fees) on and principal of, capitalize interest 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
without the consent of any other party hereto or any Certificateholder, subject,
however, to each of the following limitations, conditions and restrictions:
(i) other than as provided in Section 3.08 and in subsection (c)
below, the Special Servicer shall not agree to any modification, waiver or
amendment of any term of, or take any of the other acts referenced in this
Section 3.20(a) with respect to, any Mortgage Loan that would affect the
amount or timing of any related payment of principal, interest or other
amount payable thereunder or, in the Special Servicer's reasonable good
faith judgment, would materially impair the security for such Mortgage
Loan or reduce the likelihood of timely payment of amounts due thereon,
unless a material default on such Mortgage Loan has occurred or, in the
Special Servicer's reasonable 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 on a present value basis
(the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be done at the related Net Mortgage
Rate), than would liquidation;
(ii) the Special Servicer may not extend the date on which any
Balloon Payment is scheduled to be due on any Specially Serviced Mortgage
Loan more than three times and, in the case of any such extension, for
more than one year; and, furthermore, the Special Servicer may not grant
any such extension unless (A) the Special Servicer's recovery
determination contemplated by the immediately preceding clause (i) is
supported by an Appraisal performed within the preceding 12-month period
and (B) the Mortgagor agrees to deliver to the Special Servicer and the
Trustee quarterly operating statements with respect to the related
Mortgaged Property (the Special Servicer to request that such statements
be audited, provided that the Special Servicer may waive such condition
relating to such statements being audited, in its sole discretion);
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(iii) the Special Servicer shall not 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) with respect to, any Mortgage Loan
that would (A) cause any of REMIC I, REMIC II or REMIC III 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
any 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;
(iv) the Special Servicer shall not permit any Mortgagor to add or
substitute any collateral pursuant to this Section 3.20 unless the Special
Servicer shall have first determined in accordance with the Servicing
Standard, based upon a Phase I Environmental Assessment prepared by an
Independent Person who regularly conducts Phase I Environmental
Assessments, 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) the Special Servicer shall not release or substitute any
collateral securing an outstanding Mortgage Loan except as provided in
Section 3.09(d), except where a Mortgage Loan is satisfied and except in
the case of a release where (A) the use of the collateral to be released
will not, in the Special Servicer's reasonable good faith judgment,
materially and adversely affect the Net Operating Income being generated
by or the use of the related Mortgaged Property, (B) there is a
corresponding principal paydown of such Mortgage Loan in an amount at
least equal to the appraised value of the collateral to be released (or
substitute collateral with an appraised value at least equal to that of
the collateral to be released, is delivered), (C) the remaining Mortgaged
Property (together with any substitute collateral) is, in the Special
Servicer's reasonable good faith judgment, adequate security for the
remaining Mortgage Loan and (D) such release 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);
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (v) above shall not apply to any modification of any term of
any Mortgage Loan that is required under the terms of such Mortgage Loan in
effect on the Closing Date or that is solely within the control of the related
Mortgagor, and (y) 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 its reasonable good faith judgment such opposition would not
ultimately prevent the confirmation of such plan or one substantially similar.
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(b) The Special Servicer shall have no liability to the Trust Fund,
the Certificateholders or any other Person if the Special Servicer's 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.
(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 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 Special Servicer may, as a condition to its granting any
request by a Mortgagor for consent, modification, waiver or indulgence or any
other matter or thing, the granting of which is within the Special Servicer's
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 or customary fee (not to exceed ___% 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 this Section 3.20
shall be in writing. The Special Servicer shall notify the Master Servicer and
the Trustee, in writing, of any modification, waiver, amendment or other action
entered into or taken in respect of any Mortgage Loan pursuant to this Section
3.20 and the date thereof, and shall deliver to the Trustee or the related
Custodian for deposit in the related Mortgage File (with a copy to the other
such party), an original counterpart of the agreement relating to such
modification, waiver, amendment or other action, promptly (and in any event
within 10 Business Days) following the execution thereof. In addition, following
the execution of any modification, waiver or amendment agreed to by the Special
Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver
to the Master Servicer and the Trustee an Officer's Certificate certifying that
all of the requirements of Section 3.20(a) have been met and setting forth in
reasonable detail the basis of the determination made by it pursuant to Section
3.20(a)(i).
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 and if the Master Servicer is not also the
Special Servicer, the Master Servicer shall immediately give notice thereof, and
shall deliver the related Servicing File, to the
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Special Servicer and shall use its reasonable 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
reasonable best efforts to effect compliance with the preceding sentence within
five Business Days of the occurrence of each related Servicing Transfer Event.
The Special Servicer may, as to any delinquent Mortgage Loan, prior to the
occurrence of a Servicing Transfer Event with respect thereto, request and
obtain the foregoing documents and information in order to perform its duties
described in Section 3.02.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File within 10 Business Days, 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.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents included within 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) The Master Servicer and Special Servicer shall each furnish to
the other, upon reasonable request, such reports, documents, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to the Mortgage Loans and any REO Properties and as shall
be reasonably required by the requesting party in order to perform its duties
hereunder.
(d) 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 and consents required to be given by the
Master Servicer to the Special Servicer or vice versa shall be deemed to be
given without the necessity of any action on such Person's part.
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(e) In connection with the performance of its obligations hereunder,
each of the Master Servicer and the Special Servicer shall be entitled to rely
upon written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects and requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Master
Servicer or the 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), the Trustee or its designee may thereupon assume all of
the rights and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer or the Special Servicer, as the case may be,
under such agreement or, alternatively, may terminate such subservicing
agreement without cause and without payment of any penalty or termination fee;
(iii) provides that the Trustee, for the benefit of the Certificateholders,
shall be a third party beneficiary under such agreement, but that (except to the
extent the Trustee or its designee assumes the obligations of the Master
Servicer or the Special Servicer, as the case may be, thereunder as contemplated
by the immediately preceding clause (ii)) none of the Trustee, any successor
Master Servicer or Special Servicer, as the case may be, or any
Certificateholder shall have any duties under such agreement or any liabilities
arising therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to
this Agreement to terminate such agreement with respect to such purchased
Mortgage Loan at its option and without penalty; (v) does not permit the
Sub-Servicer to enter into or consent to any modification, waiver or amendment
or otherwise take any action on behalf of the Master Servicer or Special
Servicer, as the case may be, contemplated by Section 3.20 hereof without the
consent of the Master Servicer or Special Servicer, as the case may be; and (vi)
does not permit the Sub-Servicer any rights of indemnification that may be
satisfied out of assets of the Trust Fund. In addition, each Sub-Servicing
Agreement entered into by the Master Servicer shall provide that such agreement
shall terminate with respect to any Mortgage Loan serviced thereunder at the
time such Mortgage Loan becomes a Specially Serviced Mortgage Loan, and each
Sub-Servicing Agreement entered into by the Special Servicer shall relate only
to Specially Serviced Mortgage Loans and shall terminate with respect to any
such Mortgage Loan which ceases to be a Specially Serviced Mortgage Loan. The
Master Servicer and the Special Servicer shall each deliver to the Trustee and
each Holder of a Class B-3 Certificate, a Class B-4 Certificate or a Class C
Certificate 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. References in this Agreement to actions taken or to
be taken by the Master Servicer or the Special Servicer 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 hereunder to make
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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. For so long as they are outstanding,
Advances shall accrue interest in accordance with Sections 3.11(f) and/or
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, the Trustee and the Depositor in writing promptly of the
appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the other such
party or to the Trustee, the Certificateholders or the Trust Fund) monitor the
performance and enforce the obligations of their respective 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 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 applicable,
in its reasonable good faith judgment, would require were it the owner of the
Mortgage Loans. Subject to the terms of the related Servicing Agreement, the
Master Servicer and the Special Servicer shall each have the right to remove a
Sub-Servicer retained by it at any time it considers such removal to be in the
best interests of Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases to serve
as such under this Agreement for any reason (including by reason of an Event of
Default) and no successor Master Servicer or Special Servicer, as the case may
be, has succeeded to its rights and assumed its obligations hereunder or, in the
case of the Special Servicer, no replacement Special Servicer has been
designated pursuant to Section 6.06, then the Trustee or its designee shall
succeed to the rights and assume the obligations of the Master Servicer or the
Special Servicer under any Sub-Servicing Agreement, unless the Trustee elects to
terminate any such Sub-Servicing Agreement in accordance with its terms. In any
event, if a Sub-Servicing Agreement is to be assumed by the Trustee or another
successor thereto, then the Master Servicer or the Special Servicer, as
applicable, 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
102
thereunder, and otherwise use its best efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the performance of their respective 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 each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible. No appointment of a Sub-Servicer shall result in any additional
expense to the Trustee, the Certificateholders or the Trust Fund.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(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 for such Distribution Date, for the
following purposes and in the following order of priority:
(i) to distributions of interest to the Holders of the
respective Classes of Senior Certificates, in an amount equal to,
and pro rata in accordance with, 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 to the Holders of the Class
A-1A Certificates and the Holders of the Class A-1B Certificates,
allocable as between the Holders of such two Classes of Certificates
as provided below, in an amount (not to exceed the aggregate of the
Class Principal Balances of the Class A-1A Certificates and the
Class A-1B Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount
for such Distribution Date;
(iii) to distributions to the Holders of the Class A-1A
Certificates and the Holders of the Class A-1B Certificates in an
amount equal to, in reimbursement of and pro rata in accordance
with, all Realized Losses and Extraordinary Expenses, if any,
previously deemed allocated to each such Class of Certificates and
not previously reimbursed;
(iv) to distributions of interest to the Holders of the Class
A-2 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-1A
Certificates and the Class A-1B Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class A-2
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-2 Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion
thereof distributed on such Distribution Date
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to the Holders of the Class A-1A Certificates and/or Class A-1B
Certificates pursuant to clause (ii) above);
(vi) to distributions to the Holders of the Class A-2
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Extraordinary Expenses, if any, previously
deemed allocated to such Class of Certificates and not previously
reimbursed;
(vii) to distributions of interest to the Holders of the Class
A-3 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-1A
Certificates, the Class A-1B Certificates and the Class A-2
Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class A-3 Certificates, in an amount
(not to exceed the Class Principal Balance of the Class A-3
Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-1A Certificates
and/or Class A-1B Certificates pursuant to clause (ii) above or to
the Holders of the Class A-2 Certificates pursuant to clause (v)
above);
(ix) to distributions to the Holders of the Class A-3
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Extraordinary Expenses, if any, previously
deemed allocated to such Class of Certificates and not previously
reimbursed;
(x) to distributions of interest to the Holders of the Class
B-1 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-1A
Certificates, the Class A-1B Certificates, the Class A-2
Certificates and the Class A-3 Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class B-1
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class B-1 Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion
thereof distributed on such Distribution Date to the Holders of the
Class A-1A Certificates and/or Class A-1B Certificates pursuant to
clause (ii)
105
above, to the Holders of the Class A-2 Certificates pursuant to
clause (v) above or to the Holders of the Class A-3 Certificates
pursuant to clause (viii) above);
(xii) to distributions to the Holders of the Class B-1
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Extraordinary Expenses, if any, previously
deemed allocated to such Class of Certificates and not previously
reimbursed;
(xiii) to distributions of interest to the Holders of the
Class B-2 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-1A
Certificates, the Class A-1B Certificates, the Class A-2
Certificates, the Class A-3 Certificates and the Class B-1
Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class B-2 Certificates, in an amount
(not to exceed the Class Principal Balance of the Class B-2
Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-1A Certificates
and/or Class A-1B Certificates pursuant to clause (ii) above, to the
Holders of the Class A-2 Certificates pursuant to clause (v) above,
to the Holders of the Class A-3 Certificates pursuant to clause
(viii) above or to the Holders the Class B-1 Certificates pursuant
to clause (xi) above);
(xv) to distributions to the Holders of the Class B-2
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Extraordinary Expenses, if any, previously
deemed allocated to such Class of Certificates and not previously
reimbursed;
(xvi) to distributions of interest to the Holders of the Class
B-3 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-1A
Certificates, the Class A-1B Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class B-1 Certificates
and the Class B-2 Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class B-3
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class B-3 Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal
106
Distribution Amount for such Distribution Date (net of any portion
thereof distributed on such Distribution Date to the Holders of the
Class A-1A Certificates and/or Class A-1B Certificates pursuant to
clause (ii) above, to the Holders of the Class A-2 Certificates
pursuant to clause (v) above, to the Holders of the Class A-3
Certificates pursuant to clause (viii) above, to the Holders of the
Class B-1 Certificates pursuant to clause (xi) above or to the
Holders of the Class B-2 Certificates pursuant to clause (xiv)
above);
(xviii) to distributions to the Holders of the Class B-3
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Extraordinary Expenses, if any, previously
deemed allocated to such Class of Certificates and not previously
reimbursed;
(xix) to distributions of interest to the Holders of the Class
B-4 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-1A
Certificates, the Class A-1B Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3
Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class B-4 Certificates, in an amount
(not to exceed the Class Principal Balance of the Class B-4
Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-1A Certificates
and/or Class A-1B Certificates pursuant to clause (ii) above, to the
Holders of the Class A-2 Certificates pursuant to clause (v) above,
to the Holders of the Class A-3 Certificates pursuant to clause
(viii) above, to the Holders of the Class B-1 Certificates pursuant
to clause (xi) above, to the Holders of the Class B-2 Certificates
pursuant to clause (xiv) above or to the Holders of the Class B-3
Certificates pursuant to clause (xvii) above);
(xxi) to distributions to the Holders of the Class B-4
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Extraordinary Expenses, if any, previously
deemed allocated to such Class of Certificates and not previously
reimbursed;
(xxii) 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;
107
(xxiii) if the Class Principal Balances of the Class A-1A
Certificates, the Class A-1B Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class B-1
Certificates, the Class B-2 Certificates, the Class B-3 Certificates
and the Class B-4 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 Principal Distribution
Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class
A-1A Certificates and/or Class A-1B Certificates pursuant to clause
(ii) above, to the Holders of the Class A-2 Certificates pursuant to
clause (v) above, to the Holders of the Class A-3 Certificates
pursuant to clause (viii) above, to the Holders of the Class B-1
Certificates pursuant to clause (xi) above, to the Holders of the
Class B-2 Certificates pursuant to clause (xiv) above, to the
Holders of the Class B-3 Certificates pursuant to clause (xvii)
above or to the Holders of the Class B-4 Certificates pursuant to
clause (xx) above);
(xxiv) to distributions to the Holders of the Class C
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Extraordinary Expenses previously deemed
allocated to such Class of Certificates and not previously
reimbursed; and
(xxv) 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 (xxiv) above;
provided that, notwithstanding anything to the contrary herein, on the Final
Distribution Date, the distributions of principal to be made pursuant to clauses
(ii), (v), (viii), (xi), (xiv), (xvii), (xx) and (xxiii) above shall, in each
such case, subject to the then remaining portion of the Available Distribution
Amount for such date, be made to the Holders of the relevant Class or Classes of
Sequential Pay Certificates otherwise entitled to distributions of principal
pursuant to such clause in an amount equal to the entire Class Principal Balance
or Balances of such Class or Classes outstanding immediately prior to the Final
Distribution Date.
On each Distribution Date prior to the earlier of (i) the Senior
Principal Distribution Cross-Over Date and (ii) the Final Distribution Date, the
Trustee shall pay the distributions of principal made on the Class A-1A and
Class A-1B Certificates pursuant to clause (ii) above, first, to the Holders of
the Class A-1A Certificates, until the Class Principal Balance of such Class has
been reduced to zero, and thereafter, to the Holders of the Class A-1B
Certificates, until the Class Principal Balance of such Class has been reduced
to zero. On any Distribution Date coinciding with or following the Senior
Principal Distribution Cross-Over Date, and (in any event) on the Final
Distribution Date, the Trustee shall pay the distributions of principal made on
the Class ▇-
▇▇▇
▇▇ and Class A-1B Certificates pursuant to clause (ii) above to the
Holders of the Class A-1A Certificates and the Holders of the Class A-1B
Certificates, pro rata in accordance with the respective Class Principal
Balances of such Classes outstanding immediately prior to such Distribution
Date, until the Class Principal Balance of each such Class has been reduced to
zero.
All distributions of interest made in respect of the Class S
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of Component S-A1A, Component S-A1B,
Component S-A2, Component S-A3, Component S-B1, Component S-B2, Component S-B3,
Component S-B4 and Component S-C, pro rata in accordance with the respective
amounts of Distributable Certificate Interest that would be payable on such
Components on such Distribution Date if each such Component were treated as a
separate Class of REMIC III Regular Certificates.
Distributions in reimbursement of the Holders of any Class of
Sequential Pay Certificates for previously allocated Realized Losses and
Extraordinary Expenses shall not constitute distributions of principal and shall
not result in reduction of the Certificate Principal Balances of such
Certificates or of the related Class Principal Balance.
(b) On each Distribution Date, the Trustee shall withdraw any
amounts then on deposit in the Distribution Account that represent Net
Prepayment Premiums collected during or prior to the related Collection Period
and shall distribute such amounts, in each case as additional interest, as
follows:
(i) if the Class Notional Amount of the Class S Certificates
outstanding immediately prior to such Distribution Date is greater
than zero, all such Net Prepayment Premiums shall be distributed to
the Holders of the Class S Certificates; and
(ii) if the Class Notional Amount of the Class S Certificates
has been reduced to zero prior to such Distribution Date, all such
Net Prepayment Premiums shall be distributed to the Holders of the
Class R-I Certificates.
On each Distribution Date, the Trustee shall withdraw any amounts
then on deposit in the Distribution Account that represent Net Yield Maintenance
Premiums collected during or prior to the related Collection Period and shall
distribute such amounts, in each case as additional interest, as follows:
(i) if the Class Notional Amount of the Class S Certificates
outstanding immediately prior to such Distribution Date is greater
than zero, each such Net Yield Maintenance Premium shall be
distributed (A) up to the corresponding Certificate Yield
Maintenance Amount(s), to the Holders of the Class(es) of Sequential
Pay Certificates entitled to distributions of principal on such
Distribution Date, pro rata based on entitlement if there is more
than one such Class, and (B)
109
to the extent of the balance, if any, of such Net Yield Maintenance
Premium, to the Holders of the Class S Certificates; and
(ii) if the Class Notional Amount of the Class S Certificates
has been reduced to zero prior to such Distribution Date, all such
Net Yield Maintenance Premiums shall be distributed to the Holders
of the Class R-I Certificates.
All distributions of additional interest (in the form of Net
Prepayment Premiums or Net Yield Maintenance Premiums) made in respect of the
Class S Certificates on any Distribution Date pursuant to this Section 4.01(b),
shall be deemed to have been made in respect of Component S-A1A, Component
S-A1B, Component S-A2, Component S-A3, Component S-B1, and Component S-B2,
Component S-B3, Component S-B4 and Component S-C, pro rata in accordance with
the respective reductions in the Component Notional Amount of each such
Component as a result of the deemed distributions of principal on the REMIC II
Regular Interests on such Distribution Date pursuant to Section 4.01(h).
(c) 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 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) and is the registered owner of Certificates
the aggregate initial Certificate Principal Balance of which is at least
$[5,000,000] or initial Certificate Notional Amount of which is at least
$[10,000,000,] 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 previously allocated Realized Losses or Extraordinary
Expenses in respect of such Certificate) will be made in like manner, but only
upon presentation and surrender of such Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Notwithstanding anything herein
to the contrary, no distributions will be made with respect to a Certificate
that has previously been surrendered as contemplated by the preceding sentence
or, except as otherwise provided in Section 4.01(f), that should have been
surrendered as contemplated by the preceding sentence.
(d) 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
110
distribution to the related 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 related Certificate Owners that it
represents. None of the parties hereto shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law. The Trustee
and the Depositor shall perform their respective obligations under the Letter of
Representations among the Depositor, the Trustee and the initial Depository, a
copy of which Letter of Representations is attached hereto as Exhibit C.
(e) 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.
(f) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date (such final distribution
to be determined without regard to any possible future reimbursement of
previously allocated Realized Losses and Extraordinary Expenses in respect of
such Class), the Trustee shall, no later than five days after the related
Determination Date, mail to each Holder of record on such date of such Class of
Certificates 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 office of the Certificate Registrar or at 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(f) 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
111
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 pursuant to this paragraph. 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-III
Certificateholders all unclaimed funds and other assets which remain subject
hereto.
(g) 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. If 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
Certificateholder.
(h) All distributions made in respect of each Class of Sequential
Pay Certificates on each Distribution Date pursuant to Section 4.01(a) or
4.01(b) shall be deemed to have first been distributed from REMIC II to REMIC
III in respect of the REMIC II Regular Interest with the same alphabetical and
numerical designation as such Class of Certificates; all distributions made in
respect of the Class S Certificates on each Distribution Date pursuant to
Section 4.01(a) or 4.01(b), and allocable to Component S-A1A, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-1A; all distributions made in respect of the Class S
Certificates on each Distribution Date pursuant to Section 4.01(a) or 4.01(b),
and allocable to Component S-A1B, shall be deemed to have first been distributed
from REMIC II to REMIC III in respect of REMIC II Regular Interest A-1B; all
distributions made in respect of the Class S Certificates on each Distribution
Date pursuant to Section 4.01(a) or 4.01(b), and allocable to Component S-A2,
shall be deemed to have first been distributed from REMIC II to REMIC III in
respect of REMIC II Regular Interest A-2; all distributions made in respect of
the Class S Certificates on each Distribution Date pursuant to Section 4.01(a)
or 4.01(b), and allocable to Component S-A3, shall be deemed to have first been
distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest
A-3; all distributions made in respect of the Class S Certificates on each
Distribution Date pursuant to Section 4.01(a) or 4.01(b), and allocable to
Component S-B1, shall be deemed to have first been distributed from REMIC II to
REMIC III in respect of REMIC II Regular Interest B-1; all distributions made in
respect of the Class S Certificates on each Distribution Date pursuant to
Section 4.01(a) or 4.01(b), and allocable to Component S-B2, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest B-2; all distributions made in respect of the Class S
Certificates on each Distribution Date pursuant to Section 4.01(a) or 4.01(b),
and allocable to Component S-B3, shall be deemed to have first been distributed
from REMIC II to REMIC III in respect of REMIC II Regular Interest B-3; all
distributions made in respect of the Class S Certificates on each Distribution
Date pursuant to Section 4.01(a) or
112
4.01(b), and allocable to Component S-B4, shall be deemed to have first been
distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest
B-4; and all distributions made in respect of the Class S Certificates on each
Distribution Date pursuant to Section 4.01(a) or 4.01(b), and allocable to
Component S-C, shall be deemed to have first been distributed from REMIC II to
REMIC III in respect of REMIC II Regular Interest C. In each case, if such
distribution on any such Class of Certificates was a distribution of interest,
of principal, of additional interest (in the form or Net Prepayment Premiums or
Net Yield Maintenance Premiums) or in reimbursement of any previously allocated
Realized Losses and Extraordinary Expenses in respect of such Class of
Certificates, then the corresponding distribution deemed to be made on a REMIC
II Regular Interest pursuant to the preceding sentence shall be deemed to also
be a distribution of interest, of principal, of additional interest (in the form
of Net Prepayment Premiums or Net Yield Maintenance Premiums) or in
reimbursement of any previously allocated Realized Losses and Extraordinary
Expenses, as the case may be, in respect of such REMIC II Regular Interest. The
actual distributions made by the Trustee on each Distribution Date in respect of
the REMIC III Certificates pursuant to Sections 4.01(a) and 4.01(b) shall be
deemed to have been so made from the amounts deemed distributed in respect of
the REMIC II Regular Interests on such Distribution Date pursuant to this
Section 4.01(h). Notwithstanding the deemed distributions on the REMIC II
Regular Interests described in this Section 4.01(h), actual distributions of
funds from the Distribution Account shall be made only in accordance with
Section 4.01(a) or 4.01(b), as applicable.
(i) All distributions: (i) of interest deemed to have been made in
respect of the REMIC II Regular Interests on each Distribution Date pursuant to
Section 4.01(h) shall be deemed to have first been distributed as interest from
REMIC I to REMIC II in respect of the various REMIC I Regular Interests, pro
rata in accordance with the respective amounts of Uncertificated Distributable
Interest described in this clause (i)(i), in an amount equal to all
Uncertificated Distributable Interest in respect of each such REMIC I Regular
Interest for such Distribution Date and, to the extent not previously deemed
paid, for all prior Distribution Dates; (ii) of principal deemed to have been
made in respect of the REMIC II Regular Interests on each Distribution Date
pursuant to Section 4.01(h) shall be deemed to have first been distributed as
principal from REMIC I to REMIC II in respect of the various REMIC I Regular
Interests, pro rata in accordance with, and to the extent of, with respect to
each such REMIC I Regular Interest, an amount equal to the excess, if any, of
the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to such Distribution Date, over the Stated
Principal Balance of the related Mortgage Loan or REO Loan, as the case may be,
that will be outstanding immediately following such Distribution Date; (iii) in
reimbursement of any previously allocated Realized Losses and Extraordinary
Expenses deemed to have been made in respect of the REMIC II Regular Interests
on each Distribution Date pursuant to Section 4.01(h) shall be deemed to have
first been distributed as a reimbursement from REMIC I to REMIC II in respect of
the REMIC I Regular Interests, pro rata in accordance with, and to the extent
of, with respect to each such REMIC I Regular Interest, all Realized Losses and
Extraordinary Expenses previously deemed allocated to such REMIC I Regular
Interest and not previously reimbursed; and (iv) of additional
113
interest (in the form of Net Prepayment Premiums and Net Yield Maintenance
Premiums) deemed to have been made in respect of the REMIC II Regular Interests
on such Distribution Date pursuant to Section 4.01(h) shall be deemed to have
first been distributed as additional interest from REMIC I to REMIC II, in the
case of each such Net Prepayment Premium or Net Yield Maintenance Premium, in
respect of the REMIC I Regular Interest created with respect to the Mortgage
Loan as to which such Net Prepayment Premium or Net Yield Maintenance Premium,
as the case may be, was received.
SECTION 4.02. Statements to Certificateholders; Certain Other
Reports.
(a) Based on information provided to the Trustee by the Master
Servicer and the Special Servicer pursuant to Sections 4.02(b) and 4.02(c), the
Trustee shall prepare, or cause to be prepared, and mail on each Distribution
Date, or as soon thereafter as is practicable, to the Depositor, the Rating
Agencies and each Certificateholder a statement in respect of the distribution
made on such Distribution Date setting forth to the extent applicable to such
Class the information set forth in Exhibit E-1 hereto (the "Trustee Report").
The Trustee will make available each month, to any interested party, the Trustee
Report via the Trustee's unrestricted electronic bulletin board. In addition,
the Trustee will also make such Mortgage Loan information as may be requested by
the Depositor available each month, to any Certificateholder, Certificate Owner,
the Rating Agencies, the parties hereto or any interested party who has obtained
approval from the Depositor, which approval has been furnished to the Trustee,
certain Mortgage Loan information via the Trustee's restricted electronic
bulletin board.
(b) By 1:00 p.m., New York City time, one Business Day after the
last day of each Collection Period, the Master Servicer shall deliver to the
Trustee and the Special Servicer a report substantially in the form of Exhibit
E-2 (the "Determination Date Report"), reflecting information as of the close of
business on the last day of the Collection Period, in a mutually agreeable
electronic format. The Determination Date Report and any written information
supplemental thereto shall include such information with respect to the Mortgage
Loans that is required by the Trustee for purposes of making the calculations
and reports referred to in Section 4.01, this Section 4.02, Section 4.05 and
otherwise in this Agreement, as set forth in written specifications or
guidelines issued by the Trustee from time to time. Such information may be
delivered by the Master Servicer to the Trustee by telecopy or in such
electronic or other form as may be reasonably acceptable to the Trustee. The
Special Servicer shall from time to time (and, in any event, as may be
reasonably required by the Master Servicer) provide the Master Servicer with
such information in its possession regarding the Specially Serviced Mortgage
Loans and REO Properties as may be necessary for the Master Servicer to prepare
each Determination Date Report and any supplemental information to be provided
by the Master Servicer to the Trustee.
(c) By the Determination Date in each month, the Special Servicer
shall deliver to the Master Servicer and the Trustee a report substantially in
the form of Exhibit E-3 (the
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"Special Servicer Report") reflecting information as of the close of business on
the last day of the Collection Period.
Not later than the 30th day following the end of each calendar
quarter, commencing in __________, 199__, the Special Servicer shall deliver to
the Trustee and the Master Servicer a report in the form of Exhibit E-4 (an
"Operating Statement Analysis") with respect to all operating statements and
other financial information collected or otherwise obtained by the Special
Servicer pursuant to Section 3.12(b) during such calendar quarter (together with
copies of the operating statements and other financial information on which it
is based). The Trustee shall forward to Certificateholders copies of all
Operating Statement Analyses received by it, in each case on the Distribution
Date immediately following the receipt thereof.
(d) Within a reasonable period of time after the end of each
calendar year, the Trustee shall prepare, or cause to be prepared, and mail to
each Person who at any time during the calendar year was a Certificateholder (i)
a statement containing the aggregate information set forth on page 1 of Exhibit
E-1 hereto for such calendar year or applicable portion thereof during which
such person was a Certificateholder and (ii) such other customary information as
the Trustee deems necessary or desirable for Certificateholders to prepare their
federal, state and local income tax returns including, without limitation, the
amount of original issue discount accrued on the Certificates, if applicable,
which information described in subclause (ii) of this clause (d) shall be
provided to the Trustee by the REMIC Administrator. The obligations of the
Trustee in the immediately preceding sentence 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 soon as
practicable following the request of any Certificateholder in writing, the
Trustee shall furnish to such Certificateholder such information regarding the
Mortgage Loans and the Mortgaged Properties as such holder may reasonably
request and, to the extent such information would be required to be included in
a report described in subsection (a), (b) or (c), as has been furnished to the
Trustee. The Master Servicer, the Special Servicer and the Custodian shall
promptly provide to the Depositor, the REMIC Administrator and the Trustee such
information regarding the Mortgage Loans and the Mortgaged Properties as such
party may request and, to the extent such information would be required to be
included in a report described in subsection (a), (b) or (c), as has been
furnished to the Master Servicer, the Special Servicer or the Custodian.
(e) At the same time that the Trustee forwards the Trustee Report
for any Distribution Date to the Rating Agencies pursuant to Section 4.02(a),
the Trustee shall also forward to each Rating Agency a written hard copy of the
Special Servicer Report related to such Distribution Date and any Operating
Statement Analysis distributed to Certificateholders on such Distribution Date.
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SECTION 4.03. P&I Advances; Advances relating to the Master Servicer
Remittance Amount.
(a) On or before 1:00 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall, subject to Section 4.03(c) below, either (i)
remit from its own funds to the Trustee for deposit into the Distribution
Account 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
Collection 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. Any amounts held in the Collection
Account for future distribution and so used to make P&I Advances shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Collection 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 interest in respect
of which such P&I Advances were made). If, as of 3:00 p.m., New York City time,
on any P&I Advance 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 Officer's Certificate and documentation
related to a determination of nonrecoverability of a P&I Advance pursuant to
Section 4.03(c)) or shall not have remitted any portion of the Master Servicer
Remittance Amount required to be remitted on such date, 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 notice by
telephone to the Master Servicer 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 4:30 p.m., New York City time, on such
P&I Advance Date. If after such notice the Trustee does not receive the full
amount of such P&I Advances and/or Master Servicer Remittance Amount by 10:00
a.m., New York City time, on the Business Day immediately preceding the related
Distribution Date, then (i) the Trustee shall make the portion of such P&I
Advances and advance the portion of such Master Servicer Remittance Amount that
was required to be, but was not, made or remitted, as the case may be, by the
Master Servicer on or prior to such Distribution Date and (ii) such failure
shall constitute an Event of Default on the part of the Master Servicer. The
Trustee shall be entitled to reimbursement of the amount of any Master Servicer
Remittance Amount advanced thereby (together with any interest accrued thereon
at the Reimbursement Rate) from general collections on the Mortgage Loans and
REO Properties on deposit in the Collection Account, and the defaulting Master
Servicer shall indemnify the Trust Fund for any such interest so paid to the
Trustee out of the Collection Account.
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(b) The aggregate amount of P&I Advances to be made by the Master
Servicer in respect of any Distribution Date, subject to Section 4.03(c) below,
shall equal the aggregate of all Scheduled Payments (other than Balloon
Payments) and any Assumed Scheduled Payments, in each case net of related Master
Servicing Fees and Workout Fees, due or deemed due, as the case may be, in
respect of the Mortgage Loans (including, without limitation, Balloon Mortgage
Loans delinquent as to their respective Balloon Payments) and any REO Loans on
their respective Due Dates during the related Collection Period, in each case to
the extent such amount was not paid by or on behalf of the related Mortgagor or
otherwise collected as of the close of business on the related Determination
Date; provided that, if the Monthly Payment on any Mortgage Loan has been
reduced in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment granted or agreed to by
the Special Servicer pursuant to Section 3.20, or if the final maturity on any
Mortgage Loan shall be extended in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20,
and the Monthly Payment due and owing during the extension period is less than
the related Assumed Scheduled Payment, then the Master Servicer shall, as to
such Mortgage Loan only, advance only the amount of the Monthly Payment due and
owing after taking into account such reduction, net of related Master Servicing
Fees and Workout Fees, in the event of subsequent delinquencies thereon; and
provided further 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. 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 to the Depositor and, if made by the Master Servicer, to the Trustee
on or before the related P&I Advance Date, setting forth the basis for such
determination, together with a copy of an Appraisal of the related Mortgaged
Property or REO Property performed within the twelve months preceding such
determination by a Qualified Appraiser, and further accompanied by any other
information, including engineers' reports, environmental surveys or similar
reports, that the Person making such determination may have obtained and that
support such determination. Notwithstanding the foregoing, the Trustee shall be
entitled to conclusively rely on any
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nonrecoverability determination made by the Master Servicer with respect to a
particular P&I Advance.
(d) 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, such interest to be payable: first, out
of Penalty Charges collected on the Mortgage Loan or REO Loan as to which such
Advance relates; and, then, to the extent that such Penalty Charges are
insufficient, and only after such Advance has been reimbursed pursuant to this
Agreement, out of general collections on the Mortgage Loans and REO Properties
on deposit in the Collection Account. The Master Servicer shall reimburse itself
or the Trustee, as applicable, for any outstanding P&I Advance made thereby as
soon as practicable after funds available for such purpose are deposited in the
Collection Account.
SECTION 4.04. Allocation of Realized Losses and Extraordinary
Expenses.
(a) On each Distribution Date, following the distributions to be
made on such date pursuant to Sections 4.01(a) and 4.01(b), the Trustee shall
determine the amount, if any, by which (i) the then aggregate Certificate
Principal Balance of the Sequential Pay Certificates, exceeds (ii) the aggregate
Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date. If such excess does exist, then
the Class Principal Balances of the respective Classes of Sequential Pay
Certificates shall be reduced sequentially, in reverse order of Payment
Priority, until the amounts described in clauses (i) and (ii) of the preceding
sentence are equal. Such reductions shall be effected such that no Class of
Sequential Pay Certificates shall have its Class Principal Balance reduced until
the Class Principal Balance of each other Class of Sequential Pay Certificates,
if any, with a lower Payment Priority is reduced to zero, and any such
reductions made to the Class Principal Balances of the Class A-1A Certificates
and the Class A-1B Certificates shall be made on a pro rata basis in accordance
with relative sizes of such Class Principal Balances. Such reductions shall be
deemed to be an allocation of the Realized Losses and Extraordinary Expenses.
(b) On each Distribution Date, following the deemed distributions to
be made on such date pursuant to Section 4.01(h), the Trustee shall determine
the amount, if any, by which (i) the then aggregate Uncertificated Principal
Balance of the REMIC II Regular Interests, 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 respective
Uncertificated Principal Balances of REMIC II Regular Interest C, REMIC II
Regular Interest B- 4, REMIC II Regular Interest B-3, REMIC II Regular Interest
B-2, REMIC II Regular Interest B-1, REMIC II Regular Interest A-3 and REMIC II
Regular Interest A-2 shall be reduced, sequentially in that order, in each case
until the Uncertificated Principal Balance of the particular REMIC II Regular
Interest is reduced to zero or the amounts described in clauses (i) and (ii) of
the preceding sentence are equal. If, after the foregoing reductions, the amount
described in
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clause (i) of the second preceding sentence still exceeds the amount described
in clause (ii) of such sentence, then the respective Uncertificated Principal
Balances of REMIC II Regular Interest A-1A and REMIC II Regular Interest A-1B
shall be reduced on a pro rata basis in accordance with relative sizes of such
Uncertificated Principal Balances. All such reductions shall be deemed to be an
allocation of Realized Losses and Extraordinary Expenses.
(c) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(i),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced to equal the
Stated Principal Balance of the related Mortgage Loan or REO Loan, as the case
may be, that will be outstanding immediately following such Distribution Date.
Such reductions shall be deemed to be an allocation of Realized Losses and
Extraordinary Expenses.
SECTION 4.05. Calculations.
The Trustee shall, provided it receives the necessary information
from the Master Servicer, be responsible for performing all calculations
necessary in connection with the actual and deemed distributions to be made
pursuant to Section 4.01, the preparation of the reports to Certificateholders
pursuant to Section 4.02 and the actual and deemed allocations of Realized
Losses and Extraordinary Expenses to be made pursuant to Section 4.04. The
Trustee shall calculate the Available Distribution Amount for each Distribution
Date and shall allocate such amount among Certificateholders in accordance with
this Agreement. 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. The calculations by the Trustee contemplated by
this Section 4.05 shall, in the absence of manifest error, be presumptively
deemed to be correct for all purposes hereunder.
SECTION 4.06. Use of Agents.
The Master Servicer or the Trustee may at its own expense utilize
agents or attorneys-in-fact in performing any of its obligations under this
Article IV (except the obligation to make P&I Advances), but no such utilization
shall relieve the Master Servicer or the Trustee from any of such obligations,
and the Master Servicer or the Trustee, as applicable, shall remain responsible
for all acts and omissions of any such agent or attorney-in-fact. The Master
Servicer or the Trustee shall have all the limitations upon liability and all
the indemnities for the actions and omissions of any such agent or
attorney-in-fact that it has for its own actions hereunder pursuant to Article
VI or Article VIII hereof, as applicable, and any such agent or attorney-in-fact
shall have the benefit of all the limitations upon liability, if any, and all
the indemnities provided to the Master Servicer under Section 6.03 or to the
Trustee under Sections 8.01, 8.02 and 8.05, as applicable.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-13; 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 Book-Entry Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The Class S Certificates will be issuable only in denominations
corresponding to initial Certificate Notional Amounts as of the Closing Date of
not less than $[______] and in any whole dollar denomination in excess thereof.
The Class A-1A Certificates and the Class A-1B Certificates will be issuable
only in denominations corresponding to initial Certificate Principal Balances as
of the Closing Date of not less than $[_______] and in any whole dollar
denomination in excess thereof. The Class A-2 Certificates, the Class A-3
Certificates, the Class B-1 Certificates, the Class B-2 Certificates, the Class
B-3 Certificates, the Class B-4 Certificates and the Class C Certificates will
be issuable only in denominations corresponding to initial Certificate Principal
Balances as of the Closing Date of not less than $[_______] and in any whole
dollar denomination in excess thereof. Each Class of Residual Certificates will
be issuable only in denominations representing Percentage Interests of not less
than ____%.
(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.
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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. The Trustee may appoint, by a written instrument delivered to the
other parties hereto, any other bank or trust company to act as Certificate
Registrar under such conditions as the Trustee 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 written request of any Certificateholder made for purposes of
communicating with other Certificateholders with respect to their rights under
this Agreement, the Certificate Registrar shall promptly furnish such
Certificateholder with a list of the other Certificateholders of record
identified in the Certificate Register at the time of the request. Every
Certificateholder, by receiving such access, agrees with the Certificate
Registrar that the Certificate Registrar will not be held accountable in any way
by reason of the disclosure of any information as to the names and addresses of
any Certificateholder regardless of the source from which such information was
derived.
(b) No transfer, sale, pledge or other disposition of any Private
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Private Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or a transfer thereof by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A hereto; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B hereto and a certificate from
such Certificateholder's prospective Transferee substantially in the form
attached either as Exhibit F-2A hereto or as Exhibit F-2B hereto; or (iii) an
Opinion of Counsel satisfactory to the Trustee 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 Fund or of the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, the Trustee or
the Certificate Registrar in their
121
respective capacities as such), 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. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify any Class of
Private 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 Private Certificate or interest therein without registration or
qualification. Any Holder of a Private Certificate desiring to effect a transfer
of such Private Certificate or interest therein shall, and does hereby agree to,
indemnify, the Depositor, the Underwriter, the Trustee, the Master Servicer, the
Special Servicer, 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 a Subordinated Certificate or any interest
therein shall be made (A) 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, including, without limitation, insurance
company general accounts, that is subject to ERISA or the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing such Certificate
or interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding 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 95-60 or Section 401(c) of ERISA; or (ii) in the
case of a Subordinated Certificate that is a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Trustee, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in this
Agreement. Each Person who acquires any Subordinated Certificate or interest
therein (unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) the
preceding sentence) will be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Subordinated Certificate that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) that the purchase and holding of such Certificate or interest
therein by such person 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 95-60 or Section 401(c) of ERISA. It is
hereby acknowledged that the forms of certification attached hereto as Exhibit
G-1 (in the case of Subordinated Certificates that are Definitive Certificates)
and G-2 (in the case of ownership interests in Subordinated Certificates that
are Book-Entry Certificates) are acceptable for purposes of the preceding
sentence.
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(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 shall promptly notify the REMIC Administrator
and the Trustee of any change or impending change in its
status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Certificate
Registrar shall require delivery to it, and 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 H-1 (a "Transfer Affidavit and Agreement"),
from the proposed Transferee, and upon which the Certificate
Registrar may, in the absence of actual knowledge by a
Responsible Officer of either the Trustee or the Certificate
Registrar to the contrary, conclusively rely, representing and
warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership
Interest in the Residual Certificate that is the subject of
the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as
it retains its Ownership Interest in a Residual Certificate it
will endeavor to remain a Permitted Transferee, and that it
has reviewed the provisions of this Section 5.02(d) and agrees
to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause (B) above,
if a Responsible Officer of either the Trustee or the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Each Person holding or acquiring 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
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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 H-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted
Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate, by purchasing such
Ownership Interest, agrees to give the REMIC Administrator and
the Trustee 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), then, 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, 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 purported 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 to those Persons specified by the REMIC
Provisions all
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information furnished to it by the other parties hereto 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 a
Disqualified Organization, including the information described in
Treasury regulations sections 1.860D-1(b)(5) and 1.860E- 2(a)(5)
with respect to the "excess inclusions" of such Residual Certificate
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 a Disqualified
Organization, and each of the other parties hereto shall furnish to
the REMIC Administrator all information in its possession necessary
for the REMIC Administrator to discharge such obligation. 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 clause (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 confirmation from each Rating Agency to the
effect that the modification of, addition to or elimination of
such provisions will not cause such Rating Agency to qualify,
downgrade or withdraw its then-current rating of any Class of
Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee and the REMIC Administrator,
obtained at the expense of the party seeking such modification
of, addition to or elimination of such provisions (but in no
event at the expense of the Trustee, the REMIC Administrator
or the Trust Fund), to the effect that doing so will not cause
any of REMIC I, REMIC II or REMIC III to (x) cease to qualify
as a REMIC or (y) be subject to an entity-level tax caused by
the Transfer of any Residual Certificate to a Person which is
not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Residual Certificate to a Person
that is not a Permitted Transferee.
(e) If a Person is acquiring any Subordinated 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 an
interest in a Subordinated Certificate that constitutes 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
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account and (ii) full power to make the foregoing acknowledgments,
representations, warranties, certifications and agreements with respect to each
such account as set forth in subsections (b), (c) and (d), as applicable, of
this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, 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 the same
Class of a like aggregate Percentage Interest.
(g) 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.
(h) 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.
(i) 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.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(k) The Certificate Registrar or the Trustee shall provide to each
of the other parties hereto, upon reasonable written request and at the expense
of the requesting party, an updated copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) The Class S, Class A and Class B-1 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 Section 5.03(c), 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
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therein. Such Certificate Owners shall hold and, subject to Section 5.02(c),
transfer their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided in
Section 5.03(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.
(b) The Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and the Certificate Registrar may for all
purposes, including, without limitation, 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.
(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 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 Book-Entry Certificates (or any
portion of any Class thereof), 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 Book-Entry Certificates (or any portion of any Class
thereof) by the Depository, accompanied by registration instructions from the
Depository for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the Definitive
Certificates in respect of such Class (or portion thereof) to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Book-Entry Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders
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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
be reasonably 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 Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee, the Certificate Registrar and any agent 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 Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee, 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 any Book-Entry Certificates representing
any Class of Subordinated Certificates to agree to comply with the transfer
requirements of Section 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 of the Book-Entry Certificate beneficially owned,
the value of such Person's interest in such Certificate and any intermediaries
through
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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
representing any Class of Subordinated Certificates in violation of 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.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01. Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator.
The Depositor, 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 Master Servicer, the Special Servicer and the REMIC Administrator
herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor,
the Master Servicer, the Special Servicer or the REMIC
Administrator.
Subject to the following paragraph, the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator shall each keep in
full effect its existence, rights and franchises as a corporation, bank, trust
company, partnership or association under the laws of the jurisdiction wherein
it was organized, and each will obtain and preserve its qualification to do
business as a foreign corporation, bank, trust company, partnership or
association 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 Master Servicer, the Special Servicer or the
REMIC Administrator may be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, 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 Master
Servicer, the Special Servicer or the REMIC Administrator, shall be the
successor of the Depositor, 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
or the Special Servicer 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 by each
Rating Agency).
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SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and the REMIC
Administrator.
None of the Depositor, the Master Servicer, the Special Servicer or
the REMIC Administrator shall be under any liability to the Trust Fund, the
Trustee 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 or the REMIC Administrator against any liability to the Trust
Fund, the Trustee or the Certificateholders for the breach of a representation,
warranty or covenant made herein, or against any expense or liability
specifically required to be borne by such party without right of reimbursement
pursuant to the terms hereof, or against any liability which would otherwise be
imposed by reason of misfeasance, bad faith or negligence in the performance of,
or reckless disregard of, obligations or duties hereunder. The Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator and any director,
officer, employee or agent of any such party 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 such party shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement or the Certificates,
other than any loss, liability or expense: (i) specifically required to be borne
thereby pursuant to the terms hereof or otherwise incidental to the performance
of obligations and duties hereunder, including, without limitation, in the case
of the Master Servicer or 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 (ii) incurred in connection with any legal action against such
party resulting from any breach of a representation, warranty or covenant made
herein, any misfeasance, bad faith or negligence in the performance of, or
reckless disregard of, obligations or duties hereunder or any violation 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 the costs of which it is specifically required hereunder to bear, 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
reasonably 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 Fund, and the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator shall be entitled to be reimbursed
therefor from the Collection Account as provided in Section 3.05(a).
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SECTION 6.04. Master Servicer, Special Servicer and REMIC
Administrator Not to Resign.
None of the Master Servicer, the Special Servicer or, subject to the
last paragraph of this Section 6.04, the REMIC Administrator shall resign from
the obligations and duties hereby imposed on it, except upon determination that
its 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, the Special Servicer or
the REMIC Administrator, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, at the date of this Agreement. Any such
determination permitting the resignation of the Master Servicer, the Special
Servicer or the REMIC Administrator, as applicable, shall be evidenced by an
Opinion of Counsel to such effect which shall be delivered to the Trustee. No
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
hereunder.
Consistent with the foregoing, none of the Master Servicer, the
Special Servicer or the REMIC Administrator shall, except as expressly provided
herein, assign or transfer any of its rights, benefits or privileges hereunder
to any other Person or delegate to, 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, the entire amount of compensation payable to
the Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, that accrues pursuant hereto from and after the date of such
transfer shall be payable to such successor.
Notwithstanding the foregoing, if the same Person is acting as both
REMIC Administrator and Trustee, and such Person resigns as Trustee pursuant to
Section 8.07, then such Person shall be deemed to have also resigned as the
REMIC Administrator, and the successor Trustee shall also act as successor REMIC
Administrator or shall appoint a successor REMIC Administrator whose appointment
will not (as evidenced in writing) result in a qualification, downgrade or
withdrawal of any of the ratings then assigned by either Rating Agency to the
respective Classes of Certificates.
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 shall each afford the Depositor, the Trustee and each Rating
Agency, upon reasonable notice, during normal business hours access to all
records maintained by it in respect of its rights and obligations hereunder and
access to such of its officers as are responsible for such obligations. Upon
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reasonable request, the Master Servicer, the Special Servicer and the REMIC
Administrator shall each furnish the Depositor, the Trustee and each Rating
Agency with its most recent financial statements and such other information as
it possesses, and which it is not prohibited by applicable law or contract 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 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.
SECTION 6.06. [RESERVED]
SECTION 6.07. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer's or the Special
Servicer's reasonable good faith judgment, violate the Servicing Standard, and
(ii) if taken, might nonetheless, in the Master Servicer's or the Special
Servicer's reasonable good faith judgment, be considered by other Persons to
violate the Servicing Standard, the Master Servicer or the Special Servicer may
(but need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.07, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or the Special
Servicer or an Affiliate of the Master Servicer or the Special Servicer, as
applicable, and (c) describes in reasonable detail the action that the Master
Servicer or the Special Servicer, as the case may be, proposes to take. The
Trustee, upon receipt of such notice, shall forward it to the Certificateholders
(other than the Master Servicer and its Affiliates or the Special Servicer and
its Affiliates, as appropriate), together with a request for approval by the
Certificateholders of each such proposed action. If at any time
Certificateholders holding greater than 50% of the Voting
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Rights of all Certificateholders (calculated without regard to the Certificates
beneficially owned by the Master Servicer or its Affiliates or the Special
Servicer or its Affiliates, as the case may be) shall have consented in writing
to the proposal described in the written notice, and if the Master Servicer or
the Special Servicer, as the case may be, shall act as proposed in the written
notice, such action shall be deemed to comply with the Servicing Standard. The
Trustee shall be entitled to reimbursement from the Master Servicer or the
Special Servicer, as applicable, for the reasonable expenses of the Trustee
incurred pursuant to this paragraph. It is not the intent of the foregoing
provision that the Master Servicer or the Special Servicer be permitted to
invoke the procedure set forth herein with respect to routine servicing matters
arising hereunder, but rather in the case of unusual circumstances.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of
the following events:
(i) any failure by the Master Servicer to deposit into the
Collection Account any amount required to be so deposited under this
Agreement which continues unremedied for one Business Day following
the date on which such deposit was first required to be made; or
(ii) any failure by the Special Servicer to deposit into, or
to remit to the Master Servicer for deposit into, the Collection
Account any amount required to be so deposited or remitted under
this Agreement; or any failure by the Special Servicer to deposit
into the REO Account any amount required to be so deposited under
this Agreement which continues unremedied for one Business Day
following the date on which such deposit 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 P&I
Advance Date, the full amount of P&I Advances required to be made on
such date and/or the full amount of the Master Servicer Remittance
Amount required to be remitted on such date, which failure continues
unremedied until 10:00 a.m., New York City time, on the Business Day
immediately preceding the related Distribution Date; or
(iv) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it pursuant to the second
paragraph of Section 3.19(b) which continues unremedied for a period
of three days 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 any
Emergency Advance required to be made by it pursuant to the second
paragraph of Section 3.19(b) which continues unremedied for a period
of three days 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
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agreements on the part of the Master Servicer or the Special
Servicer, as the case may be, contained in this Agreement which
continues unremedied for a period of 30 days (or, in the case of
payment of insurance premiums, for a period of 15 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 on the part of the REMIC Administrator contained in
this Agreement which continues unremedied for a period of 30 days
after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the 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 or the
Special Servicer of any representation or warranty contained in this
Agreement that 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 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
(ix) any breach on the part of the REMIC Administrator of any
representation or warranty contained in this Agreement that
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 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
(x) 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
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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
(xi) 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
(xii) 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
(xiii) 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 in a downgrade,
qualification or withdrawal of any rating then assigned by such
Rating Agency to any Class of Certificates.
When a single entity acts as Master Servicer, Special Servicer and REMIC
Administrator, or in any two of the foregoing capacities, an Event of Default in
one capacity shall constitute an Event of Default in each 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 and the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least __% of the Voting Rights or if the relevant
Event of Default is one described in clause (iii) or clause (xiii) of Section
7.01(a), 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 Trust Fund (other than as a Holder of any
Certificate). 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
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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. Each of the Master Servicer and the Special
Servicer agrees 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 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
Collection Account, the Distribution Account or any Servicing Account (if it is
the Defaulting Party) or by the Special Servicer to the REO Account, the
Collection Account or any Servicing Account (if it is the Defaulting Party) or
thereafter be received by or on behalf of it with respect to any Mortgage Loan
or REO Property (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 to pay and 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). Any costs or expenses in connection
with any actions to be taken by the Master Servicer or Special Servicer pursuant
to this paragraph shall be borne by the Master Servicer or Special Servicer, as
the case may be.
(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 __% 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
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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 to pay and 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).
Any costs or expenses in connection with any actions to be taken by the REMIC
Administrator pursuant to this paragraph shall be borne by the REMIC
Administrator.
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 the first paragraph 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 had 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, or is not approved as a
successor Master Servicer or Special Servicer, as the case may be, by each
Rating Agency, to so act or if the Holders of Certificates entitled to at least
51% of the Voting Rights shall 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, withdrawal or
qualification of any rating then assigned by either Rating Agency to any Class
of
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Certificates (as evidenced by written confirmation to such effect 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, and pending such appointment and assumption,
the Trustee shall act in such capacity as hereinabove provided. In connection
with any such appointment and assumption, the Trustee may make such arrangements
for the compensation of such successor out of payments on 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.
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, any appointment of a successor to the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04 or 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.06, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has notice of the occurrence of such an event, the Trustee shall
transmit by mail to the Depositor and all Certificateholders notice of such
occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clause (i), clause (ii) or clause (iii) of Section 7.01(a) may be
waived only by all of the Certificateholders of the affected Classes. 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 shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if registered in the name of any other Person.
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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 (exercisable subject to
Section 8.01(a)), 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.
SECTION 7.06. Advance Collateral Fund for Trustee.
(a) Pursuant to the terms of the Collateral Fund Custodial
Agreement, for so long as the Trustee's long-term unsecured debt rating by the
Rating Agencies is not in at least the second highest applicable rating category
of each such Rating Agency, the Trustee shall establish and maintain the Advance
Collateral Fund to secure the Trustee's obligations to make P&I Advances as
successor Master Servicer under the terms hereof. Pursuant to Section 3.03 of
the Collateral Fund Custodial Agreement, the Trustee shall grant a security
interest in the Advance Collateral Fund to the Advance Collateral Custodian for
the benefit of the Certificateholders.
(b) If at any time that the Trustee is the successor Master Servicer
or is otherwise obligated to make P&I Advances and the Trustee for any reason
does not make a P&I Advance required to be made by the Trustee pursuant to this
Agreement, then by 11:30 a.m., New York City time, on the Business Day
immediately preceding the related Distribution Date, pursuant to Section 2.02 of
the Collateral Fund Custodial Agreement, the Trustee shall deliver a notice to
the Collateral Fund Custodian to withdraw the necessary amount from the Advance
Collateral Fund and deposit such funds into the Distribution Account.
(c) In accordance with the provisions of the Collateral Fund
Custodial Agreement, the Trustee may, at any time, substitute a surety bond,
letter of credit, insurance policy or other security arrangement (the
"Substitute Collateral") for the Advance Collateral Fund and amounts on deposit
therein or any substitute therefor; provided that it has received written
confirmation from each Rating Agency that such action would not result in the
downgrade, qualification or withdrawal of the rating then assigned by any Rating
Agency to any Class of Certificates, and such substitution would not result in
an Adverse REMIC Event in respect of any REMIC created hereunder.
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(d) If the arrangements for the Advance Collateral Fund have been
terminated because the Trustee's long-term unsecured debt rating by the Rating
Agencies was upgraded to at least the second highest applicable rating category
of each such Rating Agency and, subsequent to such termination of the Advance
Collateral Fund, the Trustee's long-term unsecured debt rating by the Rating
Agencies shall have been downgraded below the second highest applicable rating
category of each such Rating Agency, then the Trustee shall be required to enter
into an agreement similar to the Collateral Fund Custodial Agreement that is
acceptable to the Rating Agencies. If such substitute arrangement is not made
within 60 days of such downgrade, then such failure by the Trustee will render
the Trustee ineligible under Section 8.06.
(e) The Advance Collateral Fund shall be an "outside reserve fund"
within the meaning of the REMIC Provisions and shall not be an asset of any
REMIC. The Advance Collateral Fund shall be beneficially owned by the Bank for
federal income tax purposes, and the Bank shall report all income, gain, loss or
deduction with respect thereto. Any reimbursement from the Trust Fund to the
Advance Collateral Fund shall be treated as amounts distributed by such REMIC to
the Trustee or any successor, all within the meaning of Section 1.860G-2(h) of
the Treasury Regulations.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, then
(subject to Section 8.01(c)(iv) below) the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall make a request to the responsible party to
have the instrument corrected. 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 any other party hereto, 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) Prior to the occurrence of an Event of Default, and after
the curing or waiver of all Events of Default which may have
occurred, 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.
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(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.
(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.
(iv) The Trustee shall not be required to take action with
respect to, or be deemed to have notice or knowledge of, any default
or Event of Default (except an Event of Default under Section
7.01(a)(xiii) or the failure to deliver any monies, including,
without limitation, P&I Advances, or to provide any report,
certificate or statement to the Trustee when required pursuant to
this Agreement) unless a Responsible Officer of the Trustee shall
have received written notice or otherwise have actual knowledge
thereof. In the absence of receipt of such notice and such actual
knowledge otherwise obtained, the Trustee may conclusively assume
that there is no default or Event of Default.
(v) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 8.01, the Trustee
shall have no duty except in the capacity as successor Master
Servicer or successor Special Servicer (A) to see to any recording,
filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement
evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any rerecording,
refiling or redepositing of any thereof, (B) to see to any
insurance, and (C) to confirm or verify the contents of any reports
or certificates of the Master Servicer or Special Servicer delivered
to the Trustee pursuant to this Agreement reasonably believed by the
Trustee to be genuine and to have been signed or presented by the
proper party or parties.
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SECTION 8.02. Certain Matters Affecting 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 in the
Trustee's reasonable opinion, 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 which has not been waived or
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 and after
the waiver or curing of all 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
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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 shall not be required to give any bond or
surety in respect of the execution of the Trust Fund created hereby
or the powers granted hereunder;
(vii) 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, provided that the use of agents or
attorneys shall not be deemed to relieve the Trustee of any of its
duties and obligations hereunder; 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 of
the Depositor.
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 statements attributed to, and the representations and warranties of, the
Trustee in Article II, and the signature of the Trustee set forth on each
outstanding Certificate) shall be taken as the statements of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, and the Trustee (in its capacity as such) assumes no responsibility for
their correctness. The Trustee makes no representation as to the validity or
sufficiency of this Agreement (except as regards the enforceability of this
Agreement against it) 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 in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Collection Account or any other account by or on behalf of
the Depositor, the Master Servicer, the Special Servicer or the REMIC
Administrator (in each case, unless the Trustee is acting in such capacity). The
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document,
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order or other instrument furnished by the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator (in each case, unless the Trustee is
acting in such capacity), and accepted by the Trustee in good faith, pursuant to
this Agreement. The Trustee shall not be responsible for the legality or
validity of this Agreement (other than insofar as it relates to the obligations
of the Trustee hereunder) or the validity, priority, perfection or sufficiency
of the security for the Certificates issued or intended to be issued hereunder.
The Trustee shall not have any responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee (in its individual or any other capacity) or any agent
of the Trustee may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Trustee or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee and the REMIC Administrator.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid
Trustee's Fees in respect of the Mortgage Loans and any REO Loans, as
compensation for all services rendered by the Trustee in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties of the Trustee hereunder. As to each Mortgage Loan and REO Loan, the
Trustee's Fee shall accrue from time to time at the Trustee's Fee Rate, whether
or not interest is actually collected on each Mortgage Loan and REO Loan, on the
basis of the same principal amount and for the same period respecting which any
related interest payment due on such Mortgage Loan or deemed due on such REO
Loan is computed. The Trustee's Fees (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
shall constitute the Trustee's sole compensation for such services to be
rendered by it.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified for and held harmless by the Trust
Fund (to the extent of amounts on deposit in the Distribution Account from time
to time) against any loss, liability, claim 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, this Agreement, the Certificates, the Mortgage
Loans (to the extent it does not act in the capacity of successor Master
Servicer or Special Servicer) or any act or omission of the Trustee relating to
the exercise and performance of any of the powers and duties of the Trustee
hereunder if such loss, liability, claim or expense constitutes an
"unanticipated expense" within the meaning of Treasury regulation Section
1.860G-1(b)(3)(ii); provided that neither the Trustee
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nor any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (1) any expense or
liability specifically required to be borne thereby pursuant to the terms
hereof, or (2) any loss, liability, claim or expense incurred by reason of any
breach on the part of the Trustee of any of its representations, warranties or
covenants contained herein or any willful misfeasance, bad faith or negligence
in the performance of, or reckless disregard of, the Trustee's obligations and
duties hereunder.
(c) Each of the Master Servicer and the Special Servicer shall
indemnify the Trustee and the REMIC Administrator from and hold each of them
harmless against any loss, liability, claim or expense arising in respect of the
Master Servicer's, or Special Servicer's as the case may be, negligent acts or
omissions in connection with this Agreement including, without limitation, the
negligent use by the Master Servicer or the Special Servicer, as the case may
be, of any powers of attorney delivered to it by the Trustee pursuant to the
provisions hereof and the Mortgage Loans serviced by the Master Servicer or the
Special Servicer, as the case may be.
(d) This Section 8.05 shall survive the termination of this
Agreement or the resignation or removal of the Trustee, the REMIC Administrator,
the Master Servicer and the Special Servicer as regards rights and obligations
prior to such termination, resignation or removal.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, bank,
trust company or association organized and doing business under the laws of the
United States of America or any State thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $[50,000,000] and subject to supervision or examination
by federal or state authority. If such corporation, bank, trust company or
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
corporation, bank, trust company or association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. The Trustee shall at all times maintain a long-term unsecured debt
rating in one of the two highest (or, so long as the Trustee is satisfying the
requirements of Section 7.06, one of the three highest) applicable rating
categories of each Rating Agency (or, in the case of either Rating Agency, such
lower rating that shall not result in the qualification, downgrading or
withdrawal of the rating or ratings assigned to one or more Classes of the
Certificates by such Rating Agency, as confirmed in writing by such Rating
Agency). 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 or association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator and their respective Affiliates.
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SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, 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 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, or if the continued use of the Trustee would (as evidenced in
writing from either Rating Agency) result in a qualification, downgrading or
withdrawal of the rating assigned by such Rating Agency to any Class of
Certificates, 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 Master
Servicer, the Special Servicer, the REMIC Administrator and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to not less than 51% of the
Voting Rights (or, if such removal is in connection with the Trustee's failure
to make any required Advance, 25% 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. A copy of such instrument shall be delivered to
the Depositor, the Special Servicer, the REMIC Administrator and the remaining
Certificateholders by the successor so appointed.
(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 written confirmation from each Rating Agency that
the appointment of such successor Trustee shall not result in the downgrade,
qualification or withdrawal of any rating then assigned thereby to any Class of
Certificates. Notwithstanding anything herein to the contrary, if any Person is
acting as
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both Trustee and REMIC Administrator, then any resignation or removal of such
Person as the Trustee shall be accompanied by the resignation or removal of such
Person as REMIC Administrator, and the successor trustee shall serve as
successor to the REMIC Administrator as well.
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 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 at the time held on its behalf by a Custodian, which Custodian
shall become the agent of the successor trustee), and the Depositor, 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.
(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, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
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, provided such entity shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
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SECTION 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
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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 and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint at
the Trustee's own expense 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 inform the Master Servicer of such appointment.
Each Custodian shall be a depository institution supervised and regulated by a
federal or state banking authority, shall have 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, shall not be the Depositor or any Affiliate of
the Depositor, and shall have in place a fidelity bond and errors and omissions
policy, each in such form and amount as customarily required of custodians
acting on behalf of FHLMC or FNMA. Each Custodian shall be subject to the same
obligations, standard of care, protection and indemnities as would be imposed
on, or would protect, 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 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 afford to the Depositor, the Master Servicer,
the Special Servicer, each Holder of a Class B-3 Certificate, a Class B-4
Certificate or a Class C Certificate, the REMIC Administrator and each Rating
Agency and to the OTS, the FDIC and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to any
documentation regarding the Mortgage Loans within its control that may be
required to be provided 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) The Trustee shall maintain at its office primarily responsible
for administration of the Trust Fund and, upon reasonable prior written request
and during normal business hours, shall make available for review by the
Depositor, the Rating Agencies, and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee as a
prospective transferee of a Certificate or an interest therein, originals and/or
copies of the following items: (i) the prospectus and prospectus supplement
relating to the Class S, Class A and Class B-1 Certificates and any private
placement memorandum or other disclosure
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document relating to the Private Certificates, in each case in the form most
recently provided to the Trustee by the Depositor or by any Person designated by
the Depositor; (ii) this Agreement and any amendments hereto entered into
pursuant to Section 11.01; (iii) all Trustee Reports delivered to
Certificateholders pursuant to Section 4.02(a) since the Closing Date; (iv) all
Officer's Certificates delivered by the Master Servicer and the Special Servicer
to the Trustee since the Closing Date pursuant to Section 3.13; (v) all
accountants' reports caused to be delivered by the Master Servicer and the
Special Servicer to the Trustee since the Closing Date pursuant to Section 3.14;
(vi) the most recent inspection report prepared by the Master Servicer or the
Special Servicer and delivered to the Trustee in respect of each Mortgaged
Property pursuant to Section 3.12(a); (vii) the most recent quarterly and annual
operating statement and rent roll of each related Mortgaged Property and
financial statements of the related Mortgagor collected by the Master Servicer
or the Special Servicer and delivered to the Trustee pursuant to Section
3.12(b); (viii) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property as to which the environmental testing
contemplated by Section 3.09(c) revealed that neither of the conditions set
forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (ix)
all Determination Date Reports, Special Servicer Reports and Operating Statement
Analyses delivered to the Trustee since the Closing Date pursuant to Sections
4.02(b) and 4.02(c); (x) each of the Mortgage Files, including, without
limitation, any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into or consented to by the Master Servicer or the Special
Servicer and delivered to the Trustee pursuant to Section 3.20; (xi) the most
recent Appraisal for each Mortgage Loan and REO Property that has been delivered
to the Trustee (such item to be delivered to the Trustee by the Master Servicer
or Special Servicer, as applicable, promptly following its having been obtained
or formulated); and (xii) any and all Officer's Certificates and other evidence
delivered to or by the Trustee to support its, the Master Servicer's or the
Special Servicer's, as the case may be, determination that any Advance was or,
if made, would be, a Nonrecoverable Advance. The Trustee shall provide copies of
any and all of the foregoing items upon request of any of the parties set forth
in the previous sentence; however, except in the case of the Rating Agencies,
the Trustee shall be permitted to require payment of a sum sufficient to cover
the reasonable costs and expenses of providing such copies.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Trustee shall require (a) in the case
of Certificate Owners, a confirmation executed by the requesting Person
substantially in the form of Exhibit L-1 hereto generally to the effect that
such Person is a beneficial holder of Certificates, is requesting the
information solely for use in evaluating such Person's investment in the
Certificates and will otherwise keep such information confidential and (b) in
the case of a prospective purchaser, confirmation executed by the requesting
Person substantially in the form of Exhibit L-2 hereto generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Holders of the Certificates, by their acceptance thereof, will
be deemed to have agreed to keep such information
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confidential. The Trustee shall not be liable for providing information in
accordance with Section 8.12(a) or for the dissemination of information in
accordance with this Section 8.12(b).
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, 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 Special Servicer
or the Master Servicer of all Mortgage Loans and each REO Property remaining in
REMIC I at a price 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 an Independent
MAI-designated appraiser selected by the Master Servicer and approved by the
Trustee, minus (C) the aggregate amount of unreimbursed Advances made by the
Master Servicer or the Special Servicer, as applicable, together with any unpaid
Advance Interest in respect of such unreimbursed Advances and any unpaid
servicing compensation owing to such party (which items shall be deemed to have
been paid or reimbursed to the Master Servicer or Special Servicer, as the case
may be, 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 Special Servicer or the Master Servicer may at its option elect
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 that the aggregate Stated Principal
Balance of the Mortgage Pool at the time of such election is less than ___% of
the aggregate Cut-off Date Balance of the Mortgage Pool set forth in the
Preliminary Statement; and provided further that, in the case of any such
written notice delivered by the Master Servicer, the Special Servicer does not
elect in a writing delivered to the other parties hereto, within seven days of
receiving such written notice from the Master Servicer, to effect such purchase.
No Prepayment Premiums or Yield Maintenance Premiums will be payable in
connection with such a purchase. If the Trust Fund is to be terminated in
connection with the purchase of all of the Mortgage Loans and each REO Property
remaining in REMIC I by the Special Servicer or the Master Servicer, the Special
Servicer or the Master Servicer, as applicable, shall deliver to the Trustee for
deposit in the Distribution Account not later than the Master Servicer
Remittance Date relating to the anticipated
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Final Distribution Date 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 Collection Account). In addition, the Master
Servicer shall transfer to the Distribution Account all amounts required to be
transferred thereto on such Master Servicer Remittance Date from the Collection
Account pursuant to the first paragraph of Section 3.04(b), together with any
other amounts on deposit in the Collection Account that would otherwise be held
for future distribution. Upon confirmation that such final deposit has been
made, the Trustee shall release or cause to be released to the purchasing party
the Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the
purchasing party as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties to the purchasing party (or its designee).
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (x) if such notice is given in connection
with the purchase of the Mortgage Loans and each REO Property remaining in REMIC
I by the Special Servicer or the Master Servicer, 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 and (y) otherwise during the month of
such final distribution on or before the Master Servicer Remittance Date in such
month, in any event specifying (i) the Distribution Date upon which the Trust
Fund will terminate and final payment of 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 office or agency of
the Trustee therein designated. The Trustee shall give such notice to the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
at the time such notice is given to Certificateholders.
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 that is allocable to payments on the relevant Class in
accordance with Sections 4.01(a) and 4.01(b).
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
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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-III
Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject thereto.
SECTION 9.02. Additional Termination Requirements.
(a) If the Special Servicer or the Master Servicer purchases all of
the Mortgage Loans and each REO Property remaining in REMIC I as provided in
Section 9.01, the Trust Fund (and, accordingly, REMIC I, REMIC II and REMIC III)
shall be terminated in accordance with the following additional requirements,
unless the purchasing party 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
Fund to comply with the requirements of this Section 9.02 will not result in the
imposition of taxes on "prohibited transactions" on any of REMIC I, REMIC II or
REMIC III as defined in Section 860F of the Code or cause REMIC I, REMIC II or
REMIC III 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, REMIC II and REMIC III pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder;
(ii) during such 90-day liquidation period and at or prior to the
time of making the final payment on the Certificates, the Trustee shall
sell all of the assets of REMIC I to the Special Servicer or the Master
Servicer, as the case may be, for cash; and
(iii) immediately following 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 remaining cash on hand (other than cash retained
to meet claims), and each of REMIC I, REMIC II and REMIC III shall
terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize any purchaser of the Mortgage Loans and each REO Property as
provided in Section 9.01 to prepare (and such Person shall prepare), and to
authorize the Trustee to adopt on behalf
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of the Trust, a plan of complete liquidation of each of REMIC I, REMIC II and
REMIC III in accordance with the terms and conditions of this Agreement, which
authorization shall be binding upon all successor Certificateholders.
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ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I,
REMIC II and REMIC III 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 tax or information return or any appropriate 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 "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 REMIC II
Regular Interests are hereby designated as "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. The Class A-1A, Class ▇-▇▇,
▇▇▇▇▇ ▇-▇, Class A-3, Class B-1, Class B-2, Class B-3, Class B-4 and Class C
Certificates, together with the respective Components of the Class S
Certificates, are hereby designated as "regular interests" (within the meaning
of Section 860G(a)(1) of the Code), and the Class R-III Certificates are hereby
designated as the sole class of "residual interests" (within the meaning of
Section 860G(a)(2) of the Code), in REMIC III. None of the REMIC Administrator,
the Master Servicer, the Special Servicer or the Trustee shall, to the extent
within the control of such Person, create or permit the creation of any other
"interests" in REMIC I, REMIC II or REMIC III (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, REMIC II and REMIC III within the meaning of Section 860G(a)(9)
of the Code.
(d) The applicable Plurality Residual Certificateholder is hereby
designated as the Tax Matters Person of each of REMIC I, REMIC II and REMIC III,
and shall act on behalf of the related REMIC in relation to any tax matter or
controversy, shall represent the related REMIC in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority, shall request an administrative adjustment as to any taxable year of
the related REMIC, shall enter into settlement agreements with any governmental
taxing agency with respect to the related REMIC, shall extend any statute of
limitations relating to any tax item of the related REMIC and shall otherwise
act on behalf of the related REMIC in relation to any tax matter or controversy
involving such REMIC; provided that the REMIC Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each of REMIC I, REMIC II and REMIC III) as agent and
attorney-in-fact for the Tax Matters
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Person for each of REMIC I, REMIC II and REMIC III in the performance of its
duties as such. 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 Fund payable out of amounts on deposit in the
Distribution Account as provided by Section 3.05(b) unless such legal expenses
and costs are incurred by reason of a Tax Matters Person's or the REMIC
Administrator's misfeasance, bad faith or negligence in the performance of, or
such Person's reckless disregard of, its obligations or are expressly provided
by this Agreement to be borne by any party hereto.
(e) The REMIC Administrator shall prepare or cause to be prepared
and file, and the Trustee shall sign, all of the Tax Returns in respect of each
of REMIC I, REMIC II and REMIC III other than Tax Returns required to be filed
by the Master Servicer pursuant to Section 3.09(g). 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, REMIC II and REMIC III 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 Internal Revenue Service or any state or
local taxing authority. 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 a Permitted Transferee; (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 Internal Revenue Service, the
name, title, address and telephone number of the Person who will serve as the
representative of each of REMIC I, REMIC II and REMIC III. In addition, the
Depositor shall provide or cause to be provided to the REMIC Administrator,
within (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.
(g) The REMIC Administrator shall take such action and shall cause
each of REMIC I, REMIC II and REMIC III to take such action as shall be
necessary to create or maintain the status thereof as a REMIC under the REMIC
Provisions (and the Master Servicer shall assist it, to the extent reasonably
requested by it). The REMIC Administrator shall not take any action, cause REMIC
I, REMIC II or REMIC III to take any action or fail to take (or fail to cause to
be taken) any action that, under the REMIC Provisions, if taken or not taken, as
the case may be, could, except as provided in Section 3.17, result in an Adverse
REMIC Event in respect of REMIC I, REMIC II or REMIC III, unless the REMIC
Administrator has received an Opinion of Counsel to the effect that the
contemplated action will not result in an Adverse REMIC Event. None of the other
parties hereto shall take or fail to take any action (whether or not authorized
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hereunder) as to which the REMIC Administrator has advised it in writing that it
has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action. In addition, prior to taking any action
with respect to REMIC I, REMIC II or REMIC III or the assets of any of them, or
causing REMIC I, REMIC II or REMIC III to take any action, which 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, and no such
other party shall take any such action or cause REMIC I, REMIC II or REMIC III
to take any such action as to which the REMIC Administrator has advised it in
writing that an Adverse REMIC Event could occur. The REMIC Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement.
(h) In the event that any tax is imposed on REMIC I, REMIC II or
REMIC III, including, without limitation, "prohibited transactions" taxes as
defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to REMIC I, REMIC II or REMIC III after the Startup Day pursuant
to Section 860G(d) of the Code, and any other tax imposed by the Code or any
applicable provisions of state or local tax laws (other than any tax permitted
to be incurred by the Special Servicer pursuant to Section 3.17(a)(iii)), 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 of any of its obligations under this Article X; (ii) the Trustee, if
such tax arises out of or results from a breach 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 Fund in all other instances. Any
tax permitted to be incurred by the Special Servicer pursuant to Section
3.17(a)(iii) shall be charged to and paid by the Trust Fund. Any such amounts
payable by the Trust Fund 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, REMIC II and REMIC III 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, REMIC II or REMIC III 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
161
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 permit: (i) the sale or
disposition of any of Mortgage Loan (except in connection with (A) a breach of
any representation or warranty regarding any Mortgage Loan set forth in the
Mortgage Loan Purchase Agreement or as otherwise contemplated by Section
2.02(e), (B) the foreclosure, default or reasonably foreseeable material 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, REMIC II or REMIC III, or (D) the termination of the
Trust Fund pursuant to Article IX of this Agreement); (ii) the sale or
disposition of any investments in the Collection 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
Collection Account or the REO Account); in any event unless it has received an
Opinion of Counsel (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, REMIC II or REMIC III 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, REMIC II or REMIC III 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, REMIC II or REMIC III will
receive a fee or other compensation for services or, to the extent it is within
the control of such Person, permit REMIC I, REMIC II or REMIC III 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 ensure that substantially all of the assets of REMIC I,
REMIC II and REMIC III 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.
(m) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811 "Information
Return for Real Estate Mortgage Investment Conduits (REMICs) and Issuers of
Collateralized Debt Obligations" for the Trust Fund.
(n) On or before April 15 of each calendar year, commencing April
15, 199__, unless the REMIC Administrator and the Trustee are the same Person,
the REMIC Administrator shall deliver to the Trustee an Officer's Certificate
from a Responsible Officer of the REMIC Administrator stating the REMIC
Administrator's compliance with this Article X.
162
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 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) Each of the Master Servicer, the Special Servicer and the
Trustee shall furnish such reports, certifications and information in its
possession, 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. Indemnification by Trustee, REMIC Administrator,
Master Servicer and Special Servicer.
(a) Each of the Trustee and the REMIC Administrator agrees severally
to indemnify the Trust Fund, the Depositor, the Master Servicer and the Special
Servicer for any taxes and costs (including, without limitation, any reasonable
attorneys' fees) imposed on or incurred by the Trust Fund, the Depositor, the
Master Servicer or the Special Servicer, as a result of a breach of the
Trustee's or the REMIC Administrator's, as the case may be, covenants set forth
in this Article X.
(b) Each of the Master Servicer and the Special Servicer agrees
severally to indemnify the Trust Fund, the Depositor, the Trustee and the REMIC
Administrator for any taxes and costs (including, without limitation, any
reasonable attorneys' fees) imposed on or incurred by the Trust Fund, the
Depositor, the Trustee or the REMIC Administrator, as a result of a breach of
the Master Servicer's or the Special Servicer's, as the case may be, covenants
set forth in this Article X or in Article III.
SECTION 10.04. 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 the REMIC Administrator in the
exercise and performance of any of its obligations and duties hereunder.
163
SECTION 10.05. Use of Agents.
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys consented
to by the Trustee which consent shall not be unreasonably withheld; provided
that the REMIC Administrator will not be relieved of its obligations hereunder
by reason of the use of such agents.
164
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 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, or by the Securities Act or the
rules thereunder if the Securities Act or such rules are amended or clarified
such that any 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,
REMIC II or REMIC III 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, REMIC II or REMIC III; (vi) as provided in
Section 5.02(d)(iv), to modify, add to or eliminate any of the provisions of
Section 5.02(d)(i), (ii) or (iii); or (vii) for any other purpose; provided that
such amendment (other than any amendment for any of 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 the consent of
such Certificateholder; and provided further that any amendment covered solely
by clause (vii) above shall not adversely affect the then current rating
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 66 2/3% 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 Mortgage Loans and/or REO Properties which
are required to be distributed on any Certificate without the consent of the
Holder of such Certificate, [(ii) adversely affect in any material respect the
interests of the Holders of any Class of Certificates
165
in a manner other than as described in clause (i) above without the consent of
the Holders of all Certificates of such Class] or [(iii) modify the provisions
of this Section 11.01 without the 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 or any Affiliate of
the Depositor shall be entitled to the same Voting Rights with respect to the
matters described above as they would if registered in the name of any other
Person.
(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, REMIC II or REMIC III pursuant to
the REMIC Provisions or cause REMIC I, REMIC II or REMIC III 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 send a copy thereof to each Certificateholder and to each Rating Agency.
(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.
(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
that it reasonably believes protects or is 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 permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to
166
be effected by the Master Servicer at the expense of the Trust Fund on direction
by the Trustee, but only upon direction accompanied by an Opinion of Counsel
(the cost of which may be paid out of the Collection 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 Fund, 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 Fund, 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 unless also (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,
167
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, 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: (i) in the case of the Depositor, CRIIMI MAE
CMBS Corp., __________, ______________, Attention: ________________, telecopy
number: _____________; (ii) in the case of the Master Servicer,
________________, _________________, Attention: ___________, telecopy number:
____________; (iii) in the case of the Special Servicer,________________,
_________________, Attention: ___________, telecopy number: ____________ (with
copies to ________________, _________________, Attention: ___________, telecopy
number: ____________; (iv) in the case of the Trustee, ________________,
_________________, Attention: ___________, telecopy number: ____________; (v) in
the case of the REMIC Administrator, ________________, _________________,
Attention: ___________, telecopy number: ____________; and (vi) in the case of
the Ratings Agencies: (A)________________, _________________, Attention:
___________, telecopy number: ____________; and (B)________________,
_________________, Attention: ___________, telecopy number: ____________; or as
to each such Person such other address and/or telecopy number 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
168
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 parties hereto, their respective successors and assigns and
the other Persons referred to in Sections 6.03 and 8.05, and all such provisions
shall inure to the benefit of the Certificateholders. 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 Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which a Responsible Officer of the
Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default 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;
and
(v) the final payment to any Class of Certificateholders.
(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; and
(ii) any change in the location of the Collection Account.
169
(c) Each of the Master Servicer and the Special Servicer, as the
case may be, shall furnish 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, as the
case may be, shall promptly furnish each Rating Agency copies of the following
items:
(i) each of its annual statements as to compliance described
in Section 3.13;
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14; and
(iii) each report prepared pursuant to Section 3.09(e) and
Section 3.12.
(e) The Trustee shall promptly deliver to each Rating Agency a copy
of each statement to Certificateholders described in Section 4.02(a) and the
reports referred to in Section 4.02(c).
SECTION 11.10. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
170
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
CRIIMI MAE CMBS CORP.
Depositor
By:_____________________________
Name:
Title:
[___________________________]
Master Servicer
By:_____________________________
Name:
Title:
[___________________________]
Special Servicer
By:_____________________________
Name:
Title:
[___________________________]
Trustee and REMIC Administrator
By:_____________________________
Name:
Title:
171
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 CRIIMI MAE CMBS Corp., 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]
172
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 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]
173
STATE OF )
) ss.:
COUNTY OF )
On this _____ day of ____________ 199__, before me, a notary public
in and for said State, personally appeared _________________________, personally
known to me to be the ______________________________ of
___________________________, 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 hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
[Notarial Seal]
174
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 entities that
executed the within instrument as Trustee and as REMIC Administrator, 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]
175
EXHIBIT A-1
FORM OF CLASS S CERTIFICATE
CLASS S MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Initial Effective Pass-Through Rate: ___% Class Notional Amount of the Class S
per annum Certificates as of the Closing Date: _________
Cut-off Date: _________, 199_ Initial Certificate Notional Amount of this Class
S Certificate as of the Closing Date:
Closing Date: _________, 199_ $____________
First Distribution Date: ______________, 199_
Master Servicer: ______________ Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date:
_______________________________ $____________
Special Servicer: _____________ Trustee and REMIC Administrator:
___________
Certificate No. S-__ CUSIP No.
A-1-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI MAE
CMBS CORP., ___________________, _____________________, ____________________.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ___________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $100,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $100,000 OF INITIAL CERTIFICATE NOTIONAL
AMOUNT, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.]
REDUCTIONS OF THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE
MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A
CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO
DISTRIBUTIONS OF PRINCIPAL.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class S Certificate (obtained by dividing
the notional amount of this Class S Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional amount of all the
Class S Certificates (their "Class Notional Amount") as of the Closing Date) in
that certain beneficial ownership interest evidenced by all the Class S
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
CRIIMI MAE CMBS Corp. (the "Depositor", which term includes any successor entity
under the Agreement), __________________
A-1-2
______________ (the "Master Servicer", which term includes any successor entity
under the Agreement), ___________________ ___________________ (the "Special
Servicer", which term includes any successor entity under the Agreement) and
___________________ ____ (the "Trustee" and "REMIC Administrator", depending
upon the capacity in which it is acting, each of which terms includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class S Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class S
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with 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 distributions) and is the
registered owner of Certificates the aggregate initial Certificate Notional
Amount of which is at least $10,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class S Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class S
Certificates are exchangeable for new Class S Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration
A-1-3
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class S Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class S 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 Class S Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer, the Master Servicer
or the Majority Certificateholder of the Controlling Class at a price determined
as provided in the Agreement of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Class S Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than __% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66-2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
A-1-4
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
------------------------
as Trustee
By:
------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the
within-mentioned Agreement.
Dated:
------------------------
as Certificate Registrar
By:
------------------------
Authorized Officer
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________ _______________________________
for the account of __________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to ______________________________ _____________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ___________________________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS A-1A CERTIFICATE
CLASS A-1A MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the Class A-1A
Certificates as of the Closing Date:_____
______________
Cut-off Date: _________, 199_ Initial Certificate Principal Balance of this Class
A-1A Certificate as of the Closing Date:
Closing Date: _________, 199_ $_______
First Distribution Date: ______________, 199_
Master Servicer: ______________ Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date:
_______________________________ $__________
Special Servicer: _____________ Trustee and REMIC Administrator:
______________
Certificate No. A-1A-___ CUSIP No.
A-2-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI
MAE CMBS CORP. __________________ _____________________________________________,
_______________________________________________________________________________,
______________________________________________________________. NEITHER THIS
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS __________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3,
CLASS B-4 AND CLASS C CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-1A Certificate (obtained by
dividing the principal amount of this Class A-1A Certificate (its
A-2-2
"Certificate Principal Balance") as of the Closing Date by the aggregate
principal amount of all the Class A-1A Certificates (their "Class Principal
Balance") as of the Closing Date) in that certain beneficial ownership interest
evidenced by all the Class A-1A Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as of the Cut-off Date specified
above (the "Agreement"), among CRIIMI MAE CMBS Corp. (the "Depositor", which
term includes any successor entity under the Agreement), _________
_______________________ (the "Master Servicer", which term includes any
successor entity under the Agreement), __________ ____________________________
(the "Special Servicer", which term includes any successor entity under the
Agreement) and _________ ______________ (the "Trustee" and "REMIC
Administrator", depending upon the capacity in which it is acting, each of which
terms includes any successor entity under the Agreement), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class A-1A Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class A-1A
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with 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 distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Extraordinary Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued
A-2-3
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class A-1A Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-1A Certificates are exchangeable for new Class A-1A Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-1A Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-1A 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 Class A-1A Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer, the Master Servicer
or the Majority Certificateholder of the Controlling Class at a price determined
as provided in the Agreement of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Class A-1A Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than _% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
A-2-4
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66-2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
------------------------
as Trustee
By:
------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the
within-mentioned Agreement.
Dated:
------------------------
as Certificate Registrar
By:
------------------------
Authorized Officer
A-2-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
________________________________________________________________________________
_____________________________________________________ for the account of
_____________________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________________________________________________________
_______________________________________________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ______________________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS A-1B CERTIFICATE
CLASS A-1B MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the Class A-1B
Certificates as of the Closing Date:_____
______________
Cut-off Date: _________, 199_ Initial Certificate Principal Balance of this Class
A-1B Certificate as of the Closing Date:
Closing Date: _________, 199_ $_______
First Distribution Date: ______________, 199_
Master Servicer: ______________ Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date:
_______________________________ $___________
Special Servicer: _____________ Trustee and REMIC Administrator:
_____________
Certificate No. A-1B-_ CUSIP No.
A-3-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI
MAE CMBS CORP. __________________ _____________________________________________,
_______________________________________________________________________________,
______________________________________________________________. NEITHER THIS
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS __________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3,
CLASS B-4 AND CLASS C CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-1B Certificate (obtained by
dividing the principal amount of this Class A-1B Certificate (its
A-3-2
"Certificate Principal Balance") as of the Closing Date by the aggregate
principal amount of all the Class A-1B Certificates (their "Class Principal
Balance") as of the Closing Date) in that certain beneficial ownership interest
evidenced by all the Class A-1B Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as of the Cut-off Date specified
above (the "Agreement"), among CRIIMI MAE CMBS Corp. (the "Depositor", which
term includes any successor entity under the Agreement), _________
_______________________ (the "Master Servicer", which term includes any
successor entity under the Agreement), __________ ____________________________
(the "Special Servicer", which term includes any successor entity under the
Agreement) and _________ ______________ (the "Trustee" and "REMIC
Administrator", depending upon the capacity in which it is acting, each of which
terms includes any successor entity under the Agreement), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class A-1B Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class A-1B
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with 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 distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued
A-3-3
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class A-1B Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-1B Certificates are exchangeable for new Class A-1B Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-1B Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-1B 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 Class A-1B Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer, the Master Servicer
or the Majority Certificateholder of the Controlling Class at a price determined
as provided in the Agreement of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Class A-1B Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than _% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
A-3-4
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66-2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-3-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
------------------------
as Trustee
By:
------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1B Certificates referred to in the
within-mentioned Agreement.
Dated:
------------------------
as Certificate Registrar
By:
------------------------
Authorized Officer
A-3-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
-------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________________________________________
______________________________________________________ for the account of
_________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________ ______________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ____________________________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the Class A-2
Certificates as of the Closing Date:_____
______________
Cut-off Date: _________, 199_ Initial Certificate Principal Balance of this Class
A-2 Certificate as of the Closing Date:
Closing Date: _________, 199_ $_______
First Distribution Date: ______________, 199_
Master Servicer: ______________ Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date:
_______________________________ $_________
Special Servicer: _____________ Trustee and REMIC Administrator:
__________
Certificate No. A-2___ CUSIP No.
A-4-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI
MAE CMBS CORP., __________________ ______________, ____________________________,
______________________________________________________________. NEITHER THIS
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B AND CLASS S
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS __________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
A-4-2
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A AND CLASS A-1B
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-3, CLASS
B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C CERTIFICATES OF THE SAME SERIES
IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-2 Certificate (obtained by
dividing the principal amount of this Class A-2 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-2 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among CRIIMI MAE CMBS Corp. (the "Depositor", which term includes
any successor entity under the Agreement), _________ _______________________
(the "Master Servicer", which term includes any successor entity under the
Agreement), __________ ____________________________ (the "Special Servicer",
which term includes any successor entity under the Agreement) and _________
______________ (the "Trustee" and "REMIC Administrator", depending upon the
capacity in which it is acting, each of which terms includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class A-2 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class A-2
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with 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 distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Extraordinary Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the
A-4-3
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Notwithstanding anything herein to the
contrary, no distributions will be made with respect to a Certificate that has
previously been surrendered as contemplated by the preceding sentence or, with
limited exception, that should have been surrendered as contemplated by the
preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-2 Certificates are exchangeable for new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer of a Subordinated Certificate or any interest therein
shall be made (A) 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, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding 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 95-60 or Section 401(c) of ERISA; or (ii) in the
case of a Subordinated Certificate that is a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Trustee, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Subordinated Certificate or interest
therein (unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) the
preceding sentence) will be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Subordinated Certificate that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) that the purchase and holding of such Certificate or interest
therein by such person 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 95-60 or Section 401(c) of ERISA. It is
hereby acknowledged that the forms of certification attached to the Agreement as
A-4-4
Exhibit G-1 (in the case of Subordinated Certificates that are Definitive
Certificates) and Exhibit G-2 (in the case of ownership interests in
Subordinated Certificates that are Book-Entry Certificates) are acceptable for
purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-2 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 Class A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer, the Master Servicer
or the Majority Certificateholder of the Controlling Class at a price determined
as provided in the Agreement of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Class A-2 Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than _% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66-2/3]% of the Voting Rights allocated to the
A-4-5
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-4-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
------------------------
as Trustee
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
------------------------
as Certificate Registrar
By:
---------------------
Authorized Officer
A-4-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
-------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
________________________________________________________________________________
______________________________________________________ for the account of
_________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________________________________________________________
________________________________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ____________________________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS A-3 CERTIFICATE
CLASS A-3 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the Class
A-3 Certificates as of the Closing
Date:___________________
Cut-off Date: _________, 199_ Initial Certificate Principal Balance
of this Class A-3 Certificate as of the
Closing Date:
Closing Date: _________, 199_ $_______
First Distribution Date: ________, 199_
Master Servicer: _____________ Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date:
_______________________________ $__________
Special Servicer: _____________ Trustee and REMIC Administrator:
__________
Certificate No. A-3-__ CUSIP No.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI
MAE CMBS CORP. ________________________________ _______________________________,
_______________________________________________________________________________,
______________________________________________________________. NEITHER THIS
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S AND CLASS
A-2 CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS __________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
A-5-2
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS A-1B AND
CLASS A-2 CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN
REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE
MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B-1,
CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-3 Certificate (obtained by
dividing the principal amount of this Class A-3 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-3 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-3 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among CRIIMI MAE CMBS Corp. (the "Depositor", which term includes
any successor entity under the Agreement), _________ _______________________
(the "Master Servicer", which term includes any successor entity under the
Agreement), __________ ____________________________ (the "Special Servicer",
which term includes any successor entity under the Agreement) and
________________________ (the "Trustee" and "REMIC Administrator", depending
upon the capacity in which it is acting, each of which terms includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class A-3 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class A-3
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with 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 distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Extraordinary Expense previously allocated to this Certificate)
A-5-3
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-3 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-3 Certificates are exchangeable for new Class A-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer of a Subordinated Certificate or any interest therein
shall be made (A) 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, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding 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 95-60 or Section 401(c) of ERISA; or (ii) in the
case of a Subordinated Certificate that is a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Trustee, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Subordinated Certificate or interest
therein (unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) the
preceding sentence) will be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Subordinated Certificate that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) that the purchase and holding of such Certificate or interest
therein by such person 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
A-5-4
Exemption 95-60 or Section 401(c) of ERISA. It is hereby acknowledged that the
forms of certification attached to the Agreement as Exhibit G-1 (in the case of
Subordinated Certificates that are Definitive Certificates) and Exhibit G-2 (in
the case of ownership interests in Subordinated Certificates that are Book-Entry
Certificates) are acceptable for purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-3 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 Class A-3 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer the Master Servicer or
the Majority Certificateholder of the Controlling Class at a price determined as
provided in the Agreement of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Class A-3 Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than _% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with
A-5-5
the consent of the Holders of Certificates entitled to at least [66 2/3]% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of REMIC I, REMIC II or REMIC III as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-5-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
------------------------
as Trustee
By:
---------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
Dated:
------------------------
as Certificate Registrar
By:
---------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________________________________________
______________________________________________________ for the account of
_________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ____________________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS B-1 CERTIFICATE
CLASS B-1 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the Class
B-1 Certificates as of the Closing
Date:___________________
Cut-off Date: _________, 199_ Initial Certificate Principal Balance
of this Class B-1 Certificate as of the
Closing Date:
Closing Date: _________, 199_ $_______
First Distribution Date: ________, 199_
Master Servicer: _____________ Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date:
_______________________________ $__________
Special Servicer: _____________ Trustee and REMIC Administrator:
__________
Certificate No. B-1-__ CUSIP No.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI
MAE CMBS CORP., ___________________________________ ___________________________,
_______________________________________________________________________________,
______________________________________________________________. NEITHER THIS
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S AND CLASS
A-2 AND CLASS A-3 CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS __________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
A-6-2
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS A-1B,
CLASS A-2 AND CLASS A-3 CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class B-1 Certificate (obtained by
dividing the principal amount of this Class B-1 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class B-1 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class B-1 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among CRIIMI MAE CMBS Corp. (the "Depositor", which term includes
any successor entity under the Agreement), _________ _______________________
(the "Master Servicer", which term includes any successor entity under the
Agreement), __________ ____________________________ (the "Special Servicer",
which term includes any successor entity under the Agreement) and
________________________ (the "Trustee" and "REMIC Administrator", depending
upon the capacity in which it is acting, each of which terms includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class B-1 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class B-1
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with 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 distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Extraordinary Expense previously allocated to this Certificate)
A-6-3
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class B-1 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class B-1 Certificates are exchangeable for new Class B-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer of a Subordinated Certificate or any interest therein
shall be made (A) 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, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding 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 95-60 or Section 401(c) of ERISA; or (ii) in the
case of a Subordinated Certificate that is a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Trustee, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Subordinated Certificate or interest
therein (unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) the
preceding sentence) will be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Subordinated Certificate that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) that the purchase and holding of such Certificate or interest
therein by such person 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
A-6-4
Exemption 95-60 or Section 401(c) of ERISA. It is hereby acknowledged that the
forms of certification attached to the Agreement as Exhibit G-1 (in the case of
Subordinated Certificates that are Definitive Certificates) and G-2 (in the case
of ownership interests in Subordinated Certificates that are Book-Entry
Certificates) are acceptable for purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class B-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class B-1 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 Class B-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer, the Master Servicer
or the Majority Certificateholder of the Controlling Class at a price determined
as provided in the Agreement of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Class B-1 Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than _% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with
A-6-5
the consent of the Holders of Certificates entitled to at least [66 2/3]% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of REMIC I, REMIC II or REMIC III as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-6-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
-------------------------------------
as Trustee
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
-------------------------------------
as Certificate Registrar
By:
----------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ___________ ________________________________
______________________________________________________ for the account of
______________________________________________________ __________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________ ______________________________________________.
This information is provided by ___________________________, the Assignee
named above, or __________________________________, as its agent.
EXHIBIT A-7
FORM OF CLASS B-2 CERTIFICATE
CLASS B-2 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the Class
B-2 Certificates as of the Closing
Date:___________________
Cut-off Date: _________, 199_ Initial Certificate Principal Balance
of this Class B-2 Certificate as of the
Closing Date:
Closing Date: _________, 199_ $_______
First Distribution Date: ________, 199_
Master Servicer: _____________ Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date:
_______________________________ $__________
Special Servicer: _____________ Trustee and REMIC Administrator:
__________
Certificate No. B-2-__ CUSIP No.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI MAE
CMBS CORP., _________________________, ______________________________,
________________________________ _________________________. NEITHER THIS
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3 AND CLASS B-1 CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES
A-7-2
TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ___________, 199__.
ASSUMING THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS ▇-▇▇,
▇▇▇▇▇ ▇-▇, CLASS A-3 AND CLASS B-1 CERTIFICATES OF THE SAME SERIES IS REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B-3, CLASS B-4 AND CLASS C CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class B-2 Certificate (obtained by
dividing the principal amount of this Class B-2 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class B-2 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class B-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among CRIIMI MAE CMBS Corp. (the "Depositor", which term includes
any successor entity under the Agreement), _____________________________
_________________________ (the "Master Servicer", which term includes any
successor entity under the Agreement), __________ _______________ (the "Special
Servicer", which term includes any successor entity under the Agreement) and
____________________ ________________________ (the "Trustee" and "REMIC
Administrator", depending upon the capacity in which it is acting, each of which
terms includes any successor entity under the Agreement), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
A-7-3
of the Class B-2 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class B-2
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with 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 distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Extraordinary Expense previously allocated to this Certificate) will be
made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class B-2 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class B-2 Certificates are exchangeable for new Class B-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Private Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or a transfer thereof by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such
A-7-4
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee or the Certificate Registrar in their respective capacities as
such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Private Certificate
or interest therein without registration or qualification. Any Holder of a
Private Certificate desiring to effect a transfer of such Private Certificate or
interest therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer, 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.
No transfer of a Subordinated Certificate or any interest therein
shall be made (A) 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, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding 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 95-60 or Section 401(c) of ERISA; or (ii) in the
case of a Subordinated Certificate that is a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Trustee, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Subordinated Certificate or interest
therein (unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) the
preceding sentence) will be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Subordinated Certificate that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) that the purchase and holding of such Certificate or interest
therein by such person 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 95-60 or Section 401(c) of ERISA. It is
hereby acknowledged that the forms of certification attached to the Agreement as
Exhibit G-1 (in the case of Subordinated Certificates that are Definitive
Certificates) and Exhibit G-2 (in the case of ownership interests in
Subordinated Certificates that are Book-Entry Certificates) are acceptable for
purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class B-2 Certificates in
authorized
A-7-5
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class B-2 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 Class B-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer, the Master Servicer
or the Majority Certificateholder of the Controlling Class at a price determined
as provided in the Agreement of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Class B-2 Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than __% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
A-7-6
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-7-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
-------------------------------
as Trustee
By:
----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
-------------------------------
as Certificate Registrar
By:
----------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________________________________________
_______________________________________________________________________________
_________________________________________________________________ for the
account of ___________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________ ______________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ___________________________________, as its agent.
EXHIBIT A-8
FORM OF CLASS B-3 CERTIFICATE
CLASS B-3 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the Class
B-3 Certificates as of the Closing
Date:___________________
Cut-off Date: _________, 199_ Initial Certificate Principal Balance
of this Class B-3 Certificate as of the
Closing Date:
Closing Date: _________, 199_ $_______
First Distribution Date: ________, 199_
Master Servicer: _____________ Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date:
_______________________________ $__________
Special Servicer: _____________ Trustee and REMIC Administrator:
__________
Certificate No. B-3-__ CUSIP No.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI MAE
CMBS CORP., __________________________ __________________________,
____________________________________,_________________________________________.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1 AND CLASS B-2 CERTIFICATES OF THE SAME SERIES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ______________, 199_.
ASSUMING THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
A-8-2
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS ▇-▇▇,
▇▇▇▇▇ ▇-▇, CLASS A-3, CLASS B-1 AND CLASS B-2 CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B-4 AND CLASS C CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Class B-3 Certificate (obtained by
dividing the principal amount of this Class B-3 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class B-3 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class B-3 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among CRIIMI MAE CMBS Corp. (the "Depositor", which term includes
any successor entity under the Agreement), __________________________________
(the "Master Servicer", which term includes any successor entity under the
Agreement), ___________________________________ (the "Special Servicer", which
term includes any successor entity under the Agreement) and
_____________________________ (the "Trustee" and "REMIC Administrator",
depending upon the capacity in which it is acting, each of which terms includes
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class B-3 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class B-3
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with 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 distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Extraordinary Expense previously allocated to this Certificate)
A-8-3
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class B-3 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class B-3 Certificates are exchangeable for new Class B-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Private Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or a transfer thereof by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee 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 Fund or of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee or the Certificate Registrar in their respective capacities as
such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Private Certificate
or interest therein without registration or qualification. Any Holder of a
Private Certificate desiring to effect a transfer of such Private Certificate or
interest therein shall, and does hereby agree to, indemnify, the Depositor, the
A-8-4
Underwriter, the Trustee, the Master Servicer, the Special Servicer, 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.
No transfer of a Subordinated Certificate or any interest therein
shall be made (A) 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, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding 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 95-60 or Section 401(c) of ERISA; or (ii) in the
case of a Subordinated Certificate that is a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Trustee, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Subordinated Certificate or interest
therein (unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) the
preceding sentence) will be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Subordinated Certificate that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) that the purchase and holding of such Certificate or interest
therein by such person 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 95-60 or Section 401(c) of ERISA. It is
hereby acknowledged that the forms of certification attached to the Agreement as
Exhibit G-1 (in the case of Subordinated Certificates that are Definitive
Certificates) and Exhibit G-2 (in the case of ownership interests in
Subordinated Certificates that are Book-Entry Certificates) are acceptable for
purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class B-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class B-3 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 Class B-3 Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose
A-8-5
name this Certificate is registered as the owner hereof for all purposes, and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer, the Master Servicer
or the Majority Certificateholder of the Controlling Class at a price determined
as provided in the Agreement of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Class B-3 Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than __% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-8-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
---------------------
as Trustee
By:
-----------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-3 Certificates referred to in the
within-mentioned Agreement.
Dated:
-------------------------
as Certificate Registrar
By:
---------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________________________________________
_________________________________________________________________ for the
account of _____________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________ ______________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ___________________________________, as its agent.
EXHIBIT A-9
FORM OF CLASS B-4 CERTIFICATE
CLASS B-4 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the Class
B-4 Certificates as of the Closing
Date:___________________
Cut-off Date: _________, 199_ Initial Certificate Principal Balance
of this Class B-4 Certificate as of the
Closing Date:
Closing Date: _________, 199_ $_______
First Distribution Date: ________, 199_
Master Servicer: _____________ Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date:
_______________________________ $__________
Special Servicer: _____________ Trustee and REMIC Administrator:
__________
Certificate No. B-4-__ CUSIP No.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI MAE
CMBS CORP., __________________________ ______________________________,
_____________________________________________________, ______________________
___________. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS
IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ______________, 199_.
ASSUMING THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
A-9-2
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS ▇-▇▇,
▇▇▇▇▇ ▇-▇, CLASS A-3, CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS C CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Class B-4 Certificate (obtained by
dividing the principal amount of this Class B-4 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class B-4 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class B-4 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among CRIIMI MAE CMBS Corp. (the "Depositor", which term includes
any successor entity under the Agreement), ________________________________(the
"Master Servicer", which term includes any successor entity under the
Agreement), ________ _______________________________ (the "Special Servicer",
which term includes any successor entity under the Agreement) and
___________________________ (the "Trustee" and "REMIC Administrator", depending
upon the capacity in which it is acting, each of which terms includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class B-4 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class B-4
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with 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 distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Extraordinary Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final
A-9-3
distribution. Notwithstanding anything herein to the contrary, no distributions
will be made with respect to a Certificate that has previously been surrendered
as contemplated by the preceding sentence or, with limited exception, that
should have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class B-4 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class B-4 Certificates are exchangeable for new Class B-4 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Private Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or a transfer thereof by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee 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 Fund or of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee or the Certificate Registrar in their respective capacities as
such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Private Certificate
or interest therein without registration or qualification. Any Holder of a
Private Certificate desiring to effect a transfer of such Private Certificate or
interest therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer, the REMIC
Administrator and the
A-9-4
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.
No transfer of a Subordinated Certificate or any interest therein
shall be made (A) 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, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding 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 95-60 or Section 401(c) of ERISA; or (ii) in the
case of a Subordinated Certificate that is a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Trustee, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Subordinated Certificate or interest
therein (unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) the
preceding sentence) will be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Subordinated Certificate that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) that the purchase and holding of such Certificate or interest
therein by such person 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 95-60 or Section 401(c) of ERISA. It is
hereby acknowledged that the forms of certification attached to the Agreement as
Exhibit G-1 (in the case of Subordinated Certificates that are Definitive
Certificates) and Exhibit G-2 (in the case of ownership interests in
Subordinated Certificates that are Book-Entry Certificates) are acceptable for
purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class B-4 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class B-4 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 Class B-4 Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master
A-9-5
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer, the Master Servicer
or the Majority Certificateholder of the Controlling Class at a price determined
as provided in the Agreement of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Class B-4 Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than __% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-9-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
--------------------------
as Trustee
By:
--------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-4 Certificates referred to in the
within-mentioned Agreement.
Dated:
-------------------------
as Certificate Registrar
By:
----------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_________________________________________________________________ for the
account of _______________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________ ______________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ___________________________________, as its agent.
EXHIBIT A-10
FORM OF CLASS C CERTIFICATE
CLASS C MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the Class
C Certificates as of the Closing
Date:___________________
Cut-off Date: _________, 199_ Initial Certificate Principal Balance
of this Class C Certificate as of the
Closing Date:
Closing Date: _________, 199_ $_______
First Distribution Date: ________, 199_
Master Servicer: _____________ Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date:
_______________________________ $__________
Special Servicer: _____________ Trustee and REMIC Administrator:
__________
Certificate No. C-__ CUSIP No.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI MAE
CMBS CORP., __________________________ __________________________,
___________________________________, _______________________________________.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3 AND CLASS B-4 CERTIFICATES OF
THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ___________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
A-10-2
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS ▇-▇▇,
▇▇▇▇▇ ▇-▇, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3 AND CLASS B-4 CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Class C Certificate (obtained by
dividing the principal amount of this Class C Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class C Certificates (their "Class Principal Balance") as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
CRIIMI MAE CMBS Corp. (the "Depositor", which term includes any successor entity
under the Agreement), ___________ _____________________________ (the "Master
Servicer", which term includes any successor entity under the Agreement),
___________ _____________________________ (the "Special Servicer", which term
includes any successor entity under the Agreement) and ________
______________________ (the "Trustee" and "REMIC Administrator", depending upon
the capacity in which it is acting, each of which terms includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class C Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class C
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with 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 distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Extraordinary Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final
A-10-3
distribution. Notwithstanding anything herein to the contrary, no distributions
will be made with respect to a Certificate that has previously been surrendered
as contemplated by the preceding sentence or, with limited exception, that
should have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class C Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class C
Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Private Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or a transfer thereof by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee 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 Fund or of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee or the Certificate Registrar in their respective capacities as
such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Private Certificate
or interest therein without registration or qualification. Any Holder of a
Private Certificate desiring to effect a transfer of such Private Certificate or
interest therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer, the REMIC
Administrator and the
A-10-4
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.
No transfer of a Subordinated Certificate or any interest therein
shall be made (A) 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, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding 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 95-60 or Section 401(c) of ERISA; or (ii) in the
case of a Subordinated Certificate that is a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Trustee, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Subordinated Certificate or interest
therein (unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) the
preceding sentence) will be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Subordinated Certificate that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) that the purchase and holding of such Certificate or interest
therein by such person 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 95-60 or Section 401(c) of ERISA. It is
hereby acknowledged that the forms of certification attached to the Agreement as
Exhibit G-1 (in the case of Subordinated Certificates that are Definitive
Certificates) and Exhibit G-2 (in the case of ownership interests in
Subordinated Certificates that are Book-Entry Certificates) are acceptable for
purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class C Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class C 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 Class C Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master
A-10-5
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer, the Master Servicer
or the Majority Certificateholder of the Controlling Class at a price determined
as provided in the Agreement of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Class C Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than __% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-10-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
------------------------
as Trustee
By:
---------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
Dated:
------------------------
as Certificate Registrar
By:
---------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________
______________________________________________________________
______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________________________________________
_________________________________________________________________ for the
account of __________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________ _____________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ___________________________________, as its agent.
EXHIBIT A-11
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Cut-off Date: _________, 199_ Percentage Interest evidenced by this Class R-I
Certificate: _____%
Closing Date: _________, 199_ Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date:
$____________
First Distribution Date:
____________, 199_
Master Servicer: ____________ Trustee and REMIC Administrator:
______________
_____________________________
Special Servicer:
Certificate No. R-I-___
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI
MAE CMBS CORP., _________________________ _______________________,
_______________________________________, ___________________________________.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY
OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY,
ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Class R-I Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-I Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
CRIIMI MAE CMBS
A-11-2
Corp. (the "Depositor", which term includes any successor entity under the
Agreement), ____________________________________ (the "Master Servicer", which
term includes any successor entity under the Agreement),
__________________________________________ (the "Special Servicer", which term
includes any successor entity under the Agreement) and
_______________________________ (the "Trustee" and "REMIC Administrator",
depending upon the capacity in which it is acting, each of which terms includes
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class R-I Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class R-I
Certificates will be made by the Trustee to the Person entitled thereto by check
mailed to the address of such Certificateholder as it appears in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution. Notwithstanding anything herein to the contrary, no distributions
will be made with respect to a Certificate that has previously been surrendered
as contemplated by the preceding sentence or, with limited exception, that
should have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class R-I Certificates are exchangeable for new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Private Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or a transfer thereof by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse
A-11-3
to register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit F-1A to the
Agreement; or (ii) a certificate from the Certificateholder desiring to effect
such transfer substantially in the form attached as Exhibit F-1B to the
Agreement and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit F-2A or as Exhibit F-2B to
the Agreement; or (iii) an Opinion of Counsel satisfactory to the Trustee 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 Fund or of
the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator, the Trustee or the Certificate Registrar in their respective
capacities as such), 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. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of Private
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Private Certificate or interest therein without registration or qualification.
Any Holder of a Private Certificate desiring to effect a transfer of such
Private Certificate or interest therein shall, and does hereby agree to,
indemnify, the Depositor, the Underwriter, the Trustee, the Master Servicer, the
Special Servicer, 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.
No transfer of a Subordinated Certificate or any interest therein
shall be made (A) 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, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding 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 95-60 or Section 401(c) of ERISA; or (ii) in the
case of a Subordinated Certificate that is a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Trustee, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Subordinated Certificate or interest
therein (unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) the
preceding sentence) will be required to deliver to the Certificate Registrar
(or, in the case of an interest in Subordinated Certificates that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) that the purchase and holding of such Certificate or interest
therein by such person 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 95-60 or Section 401(c) of ERISA. It is
hereby acknowledged that the forms of certification attached to the Agreement as
Exhibit G-1 (in the case of Subordinated Certificates that are Definitive
Certificates) and G-2 (in the case of ownership interests Subordinated
Certificates that are in Book-Entry Certificates) are acceptable for purposes of
the preceding sentence.
A-11-4
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) 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. Each Person
holding or acquiring any Ownership Interest in this Certificate must be a
Permitted Transferee and shall promptly notify the Trustee and the REMIC
Administrator of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit H-1 to the
Agreement (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 this Certificate
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 this
Certificate, it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the Certificate
Registrar or Trustee has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in this Certificate
to such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, 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 such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement 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 confirmation from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to qualify,
downgrade or withdraw its then-current ratings 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 any of REMIC I, REMIC II or REMIC
III to (x) cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Class R-I Certificate to a Person that 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 Class R-I
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" and a "Non-United States Person". A "Disqualified
Organization" is any of (i) the United States, any State or
A-11-5
political subdivision thereof, any possession of the United States, 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 the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code
and (v) any other Person so designated by the REMIC Administrator based upon an
Opinion of Counsel provided to it that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause the Trust Fund 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.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is 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 or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class R-I 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 Class R-I Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer, the Master Servicer
or the Majority
A-11-6
Certificateholder of the Controlling Class at a price determined as provided in
the Agreement of all the Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Special Servicer,
the Master Servicer or the Majority Certificateholder of the Controlling Class
to purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class R-I Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
being less than __% of the aggregate Stated Principal Balance of the Mortgage
Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-11-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
----------------------
as Trustee
By:
-------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated:
------------------------
as Certificate Registrar
By:
---------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________
______________________________________________________________
______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:_____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall be by check made payable to ________________________
and mailed to __________________________________________________.
Applicable statements and notices should be mailed to
____________________________ ____________________________________.
This information is provided by ___________________________, the Assignee
named above, or ____________________________________, as its agent.
EXHIBIT A-12
FORM OF CLASS R-II CERTIFICATE
CLASS R-II MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Cut-off Date: _________, 199_ Percentage Interest evidenced by this Class R-II
Certificate: _____%
Closing Date: _________, 199_ Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date:
$_____________
First Distribution Date:
____________, 199_
Master Servicer: ____________ Trustee and REMIC Administrator:
______________
_____________________________
Special Servicer:
Certificate No. R-II-___
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI MAE
CMBS CORP., _________________________ __________________________,
____________________________________, _________________________________________.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY,
ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Class R-II Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-II Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
CRIIMI MAE CMBS
A-12-2
Corp. (the "Depositor", which term includes any successor entity under the
Agreement), _______________________________________ (the "Master Servicer",
which term includes any successor entity under the Agreement),
_____________________________________ (the "Special Servicer", which term
includes any successor entity under the Agreement) and
________________________________________ (the "Trustee" and "REMIC
Administrator", depending upon the capacity in which it is acting, each of which
terms includes any successor entity under the Agreement), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class R-II Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class R-II
Certificates will be made by the Trustee to the Person entitled thereto by check
mailed to the address of such Certificateholder as it appears in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution. Notwithstanding anything herein to the contrary, no distributions
will be made with respect to a Certificate that has previously been surrendered
as contemplated by the preceding sentence or, with limited exception, that
should have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class R-II Certificates are exchangeable for new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Private Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or a transfer thereof by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse
A-12-3
to register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit F-1A to the
Agreement; or (ii) a certificate from the Certificateholder desiring to effect
such transfer substantially in the form attached as Exhibit F-1B to the
Agreement and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit F-2A or as Exhibit F-2B to
the Agreement; or (iii) an Opinion of Counsel satisfactory to the Trustee 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 Fund or of
the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator, the Trustee or the Certificate Registrar in their respective
capacities as such), 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. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of Private
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Private Certificate or interest therein without registration or qualification.
Any Holder of a Private Certificate desiring to effect a transfer of such
Private Certificate or interest therein shall, and does hereby agree to,
indemnify, the Depositor, the Underwriter, the Trustee, the Master Servicer, the
Special Servicer, 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.
No transfer of a Subordinated Certificate or any interest therein
shall be made (A) 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, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding 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 95-60 or Section 401(c) of ERISA; or (ii) in the
case of a Subordinated Certificate that is a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Trustee, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Subordinated Certificate or interest
therein (unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) the
preceding sentence) will be required to deliver to the Certificate Registrar
(or, in the case of an interest in Subordinated Certificates that constitute a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) that the purchase and holding of such Certificate or interest
therein by such person 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 95-60 or Section 401(c) of ERISA. It is
hereby acknowledged that the forms of certification attached to the Agreement as
Exhibit G-1 (in the case of Subordinated Certificates that are Definitive
Certificates) and G-2 (in the case of ownership interests in Subordinated
Certificates that are Book-Entry Certificates) are acceptable for purposes of
the preceding sentence.
A-12-4
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) 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. Each Person
holding or acquiring any Ownership Interest in this Certificate must be a
Permitted Transferee and shall promptly notify the Trustee and the REMIC
Administrator of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit H-1 to the
Agreement (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 this Certificate
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 this
Certificate, it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the Certificate
Registrar or Trustee has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in this Certificate
to such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, 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 such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement 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 confirmation from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to qualify,
downgrade or withdraw its then-current ratings 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 any of REMIC I, REMIC II or REMIC
III to (x) cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Class R-II Certificate to a Person that 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 Class R-II
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" and a "Non-United States Person". A "Disqualified
Organization" is any of (i) the United States, any State or
A-12-5
political subdivision thereof, any possession of the United States, 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 the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code
and (v) any other Person so designated by the REMIC Administrator based upon an
Opinion of Counsel provided to it that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause the Trust Fund 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.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is 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 or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class R-II 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 Class R-II Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Majority
Certificateholder of the
A-12-6
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Master Servicer or the Majority
Certificateholder of the Controlling Class to purchase from the Trust Fund all
the Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class R-II Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than __% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Closing Date specified
on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-12-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
-----------------------
as Trustee
By:
--------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated:
------------------------
as Certificate Registrar
By:
---------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________
______________________________________________________________
______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:_____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall be by check made payable to __________________________
and mailed to ________________________________________________________________.
Applicable statements and notices should be mailed to ___________________
____________________________________.
This information is provided by ___________________________, the Assignee
named above, or ____________________________________, as its agent.
EXHIBIT A-13
FORM OF CLASS R-III CERTIFICATE
CLASS R-III MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of [specify general characteristics of the
Mortgage Loans] mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
CRIIMI MAE CMBS CORP.
Cut-off Date: _________, 199_ Percentage Interest evidenced by this Class R-III
Certificate: _____%
Closing Date: _________, 199_ Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date:
$_____________
First Distribution Date:
____________, 199_
Master Servicer: ____________ Trustee and REMIC Administrator:
______________
_____________________________
Special Servicer:
Certificate No. R-III-___
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CRIIMI MAE
CMBS CORP., _________________________ __________________________,
_______________________________, __________________________________________.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY,
ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Class R-III Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-III Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
CRIIMI MAE CMBS
A-13-2
Corp. (the "Depositor", which term includes any successor entity under the
Agreement), __________________________________ (the "Master Servicer", which
term includes any successor entity under the Agreement),
_________________________________ (the "Special Servicer", which term includes
any successor entity under the Agreement) and _________________________________
(the "Trustee" and "REMIC Administrator", depending upon the capacity in which
it is acting, each of which terms includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the __th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class R-III Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class R-III
Certificates will be made by the Trustee to the Person entitled thereto by check
mailed to the address of such Certificateholder as it appears in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution. Notwithstanding anything herein to the contrary, no distributions
will be made with respect to a Certificate that has previously been surrendered
as contemplated by the preceding sentence or, with limited exception, that
should have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class R-III Certificates are exchangeable for new Class R-III Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Private Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or a transfer thereof by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse
A-13-3
to register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit F-1A to the
Agreement; or (ii) a certificate from the Certificateholder desiring to effect
such transfer substantially in the form attached as Exhibit F-1B to the
Agreement and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit F-2A or as Exhibit F-2B to
the Agreement; or (iii) an Opinion of Counsel satisfactory to the Trustee 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 Fund or of
the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator, the Trustee or the Certificate Registrar in their respective
capacities as such), 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. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of Private
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Private Certificate or interest therein without registration or qualification.
Any Holder of a Private Certificate desiring to effect a transfer of such
Private Certificate or interest therein shall, and does hereby agree to,
indemnify, the Depositor, the Underwriter, the Trustee, the Master Servicer, the
Special Servicer, 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.
No transfer of a Subordinated Certificate or any interest therein
shall be made (A) 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, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding 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 95-60 or Section 401(c) of ERISA; or (ii) in the
case of a Subordinated Certificate that is a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Trustee, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Subordinated Certificate or interest
therein (unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) the
preceding sentence) will be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Subordinated Certificate that constitute a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) that the purchase and holding of such Certificate or interest
therein by such person 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 95-60 or Section 401(c) of ERISA. It is
hereby acknowledged that the forms of certification attached to the Agreement as
Exhibit G-1 (in the case of Subordinated Certificates that are Definitive
Certificates) and Exhibit G-2 (in the case of ownership interests in
Subordinated Certificates that are Book-Entry Certificates) are acceptable for
purposes of the preceding sentence.
A-13-4
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) 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. Each Person
holding or acquiring any Ownership Interest in this Certificate must be a
Permitted Transferee and shall promptly notify the Trustee and the REMIC
Administrator of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit H-1 to the
Agreement (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 this Certificate
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 this
Certificate, it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the Certificate
Registrar or Trustee has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in this Certificate
to such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, 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 such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement 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 confirmation from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to qualify,
downgrade or withdraw its then-current ratings 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 any of REMIC I, REMIC II or REMIC
III to (x) cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Class R-III Certificate to a Person that 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 Class R-III
Certificate to a Person that is not a Permitted Transferee.
A-13-5
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" and a "Non-United States Person". A "Disqualified
Organization" is any of (i) the United States, any State or political
subdivision thereof, any possession of the United States, 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 the
FHLMC, a majority of its board of directors is not selected by such governmental
unit), (ii) a foreign government, any international organization, or any agency
or instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the REMIC Administrator based upon an
Opinion of Counsel provided to it that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause the Trust Fund 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.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is 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 or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-III Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class R-III 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 Class R-III Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or
A-13-6
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Special Servicer, the Master Servicer or the
Majority Certificateholder of the Controlling Class to purchase from the Trust
Fund all the Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class R-III
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
__% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-13-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
-----------------------
as Trustee
By:
-------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
Dated:
------------------------
as Certificate Registrar
By:
---------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________
______________________________________________________________
______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall be by check made payable to __________________________
and mailed to ________________________________________________________________.
Applicable statements and notices should be mailed to ____________________
_________________________________.
This information is provided by ___________________________, the Assignee
named above, or ____________________________________, as its agent.
EXHIBIT B-1
MORTGAGE LOAN SCHEDULE
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO
MORTGAGE FILE DELIVERY
EXHIBIT C
LETTER OF REPRESENTATIONS
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
__________________________
__________________________
__________________________
Attention: _______________________________________
Re: CRIIMI MAE CMBS Corp. Series 199_-___
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of__________, 199_ (the "Pooling and Servicing Agreement"), among CRIIMI MAE
CMBS Corp. as depositor, the undersigned as master servicer,
______________________________________________ as special servicer, and you as
trustee (in such capacity, the "Trustee") and REMIC administrator, the
undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full.
The undersigned hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be
credited to the Collection Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
------------------------
as Master Servicer
By:
--------------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
__________________________
__________________________
__________________________
Attention: _______________________________________
Re: CRIIMI MAE CMBS Corp., Series 199_-___
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of ____________, 199_ (the "Pooling and Servicing Agreement"), among CRIIMI
MAE CMBS Corp. as depositor, ____________________ ____________________ as master
servicer, the undersigned as special servicer, and you as trustee (in such
capacity, the "Trustee") and REMIC administrator, the undersigned hereby
requests a release of the Mortgage File (or the portion thereof specified below)
held by or on behalf of you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan is being foreclosed, in which case the Mortgage File (or such
portion thereof) will be returned when no longer required by us for such
purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
--------------------------
as Special Servicer
By:
--------------------------------------
Name:
Title:
D-2-2
EXHIBIT E-1
FORM OF TRUSTEE REPORT
EXHIBIT E-2
FORM OF DETERMINATION DATE REPORT
Issue Identifier
Loan Number
Note Rate %
Scheduled P & I Payment
Scheduled Interest Amount
Scheduled Principal Amount
Curtailment Amount
Curtailment Adjustment
Curtailment Date (YYYYMMDD)
Payoff Amount
Payoff Date (YYYYMMDD)
Payoff Code
Ending Scheduled Balance
Paid Through Date (YYYYMMDD)
Loan Status Code
Recovered Delinquency Amount
Debt Service Coverage Ratio (DSCR)
Filler
EXHIBIT E-3
FORM OF SPECIAL SERVICER REPORT
Loan Number
Property Name
Property Type
Property Address
MSA
Past Due Status
Paid-To Date
Date of Last Financial Statement
Date of Last Inspection Report
Current NOI
Number of Months of Revenue Annualized
Current Occupancy
Original Loan Balance*
Current Principal Balance
Scheduled Monthly P&I
Gross Coupon
Appraised Value at Origination and Date of Appraisal*
Current Appraised Value and Date of Appraisal
Debt Service Coverage at Origination*
Occupancy at Origination*
Current Debt Service Coverage
Modified Since Origination (Y/N)*
Comments that the Special Servicer has regarding loan status and certain factual
matters regarding servicing including modifications, foreclosures and notices
* Special Servicer's information with respect to these items is based solely
upon information, if any, in files delivered to the Special Servicer.
EXHIBIT E-4
FORM OF OPERATING STATEMENT ANALYSIS
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
__________________________ as Certificate Registrar
__________________________
__________________________
Attention: _______________________________________
Re: CRIIMI MAE CMBS Corp. Mortgage Pass-Through Certificates, Series
199_-___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate Certificate Principal
Balance as of ____________, 199_ (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of
_____________, 199_(the "Pooling and Servicing Agreement"), among CRIIMI MAE
CMBS Corp. as depositor, _____________ _______________________ as master
servicer, _________________ ______________________ as special servicer, and
_______________ _______________ as trustee and REMIC administrator. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Private
Certificate, any interest in any Private Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of any Private Certificate,
any interest in any Private Certificate or any other similar security from
any person in any manner, (c) otherwise approached or negotiated with
respect to any Private Certificate, any interest in any Private
Certificate or any other similar security with any person in any manner,
(d) made any general solicitation by means of general advertising or in
any other manner, or (e) taken any other action, which (in the case of any
of the acts described in clauses (a) through (e) hereof) would constitute
a distribution of any Transferred Certificate under the Securities Act of
1933, as amended (the "Securities Act"), or would render the disposition
of any Transferred Certificate a violation of Section 5 of the Securities
Act or any state securities laws, or would require registration or
qualification of any Transferred Certificate pursuant to the Securities
Act or any state securities laws.
3. The Transferor and any person acting on behalf of the Transferor
in this matter reasonably believe that the Transferee is a "qualified
institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act (a "Qualified
Institutional Buyer") purchasing for its own account or for the account of
a Qualified Institutional Buyer. In determining whether the Transferee is
a Qualified Institutional Buyer, the Transferor and any person acting on
behalf of the Transferor in this matter have relied upon the following
method(s) of establishing the Transferee's ownership and discretionary
investments of securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a
date within 16 months preceding the date of sale of the
Transferred Certificate in the case of a U.S. purchaser and
within 18 months preceding such date of sale for a foreign
purchaser; or
___ (b) The most recent publicly available information appearing
in documents filed by the Transferee with the Securities and
Exchange Commission or another United States federal, state,
or local governmental agency or self-regulatory organization,
or with a foreign governmental agency or self-regulatory
organization, which information is as of a date within 16
months preceding the date of sale of the Transferred
Certificate in the case of a U.S. purchaser and within 18
months preceding such date of sale for a foreign purchaser; or
___ (c) The most recent publicly available information appearing
in a recognized securities manual, which information is as of
a date within 16 months preceding the date of sale of the
Transferred Certificate in the case of a U.S. purchaser and
within 18 months preceding such date of sale for a foreign
purchaser; or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer
of the Transferee, specifying the amount of securities owned
and invested on a discretionary basis by the Transferee as of
a specific date on or since the close of the Transferee's most
recent fiscal year, or, in the case of a Transferee that is a
member of a "family of investment companies", as that term is
defined in Rule 144A, a certification by an executive officer
of the investment adviser specifying the amount of securities
owned by the "family of investment companies" as of a specific
date on or since the close of the Transferee's most recent
fiscal year.
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned
and invested on a discretionary basis by an entity for purposes of
establishing whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with the Transferee;
securities that are part of an unsold allotment to or
subscription by the Transferee, if the Transferee is a dealer;
securities of issuers that are part of the Transferee's
"family of investment companies", if the Transferee is a
registered investment company; bank deposit notes and
certificates of deposit; loan participations; repurchase
agreements; securities owned but subject to a repurchase
agreement; and currency, interest rate and commodity swaps;
F-1A-2
(b) the aggregate value of the securities shall be the cost of
such securities, except where the entity reports its
securities holdings in its financial statements on the basis
of their market value, and no current information with respect
to the cost of those securities has been published, in which
case the securities may be valued at market;
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements
prepared in accordance with generally accepted accounting
principles may be included if the investments of such
subsidiaries are managed under the direction of the entity,
except that, unless the entity is a reporting company under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, securities owned by such subsidiaries may not be
included if the entity itself is a majority-owned subsidiary
that would be included in the consolidated financial
statements of another enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the
Transferor is relying on the exemption from the provisions of Section 5 of
the Securities Act provided by Rule 144A.
6. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a)
the Transferred Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and
Servicing Agreement and (d) any credit enhancement mechanism associated
with the Transferred Certificates, that the Transferee has requested.
Very truly yours,
-------------------------------------
(Transferor)
By:
----------------------------------
Name:
Title:
F-1A-3
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
_______________________ as Certificate Registrar
__________________________
__________________________
Attention: _______________________________________
Re: CRIIMI MAE CMBS Corp. Mortgage Pass-Through Certificates, Series
199_-___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate Certificate Principal
Balance as of ____________, 199_ (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of
_______________, 199_ (the "Pooling and Servicing Agreement"), among CRIIMI MAE
CMBS Corp. as depositor, _________ __________________________ as master
servicer, _________________ ________________ as special servicer, and
______________________ ___________ as trustee and REMIC administrator. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Private
Certificate, any interest in any Private Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of any Private Certificate,
any interest in any Private Certificate or any other similar security from
any person in any manner, (c) otherwise approached or negotiated with
respect to any Private Certificate, any interest in any Private
Certificate or any other similar security with any person in any manner,
(d) made any general solicitation by means of general advertising or in
any other manner, or (e) taken any other action, which (in the case of any
of the acts described in clauses (a) through (e) hereof) would constitute
a distribution of any Transferred Certificate under the Securities Act of
1933, as amended (the "Securities Act"), or would render the disposition
of any Transferred Certificate a violation of Section 5 of the Securities
Act or any state securities laws, or would require registration or
qualification of any Transferred Certificate pursuant to the Securities
Act or any state securities laws.
Very truly yours,
-------------------------------------
(Transferor)
By:
----------------------------------
Name:
Title:
F-1B-2
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
__________________________ as Certificate Registrar
__________________________
__________________________
Attention: _______________________________________
Re: CRIIMI MAE CMBS Corp., Mortgage Pass-Through Certificates,
Series 199_- ___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate Certificate Principal
Balance as of __________, 199_ (the "Closing Date") of $__________] [evidencing
a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of ____________
199_ (the "Pooling and Servicing Agreement"), among CRIIMI MAE CMBS Corp. as
depositor, ____________________________ as master servicer,
________________________ as special servicer, and ____________________________
as trustee and REMIC administrator. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act") and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
of the Transferred Certificates is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Certificates for its own
account or for the account of a Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account
of a Qualified Institutional Buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Transferred Certificates and distributions thereon, (b) the
nature, performance and servicing of the Mortgage Loans, (c) the Pooling
and Servicing Agreement, and (d) any credit enhancement mechanism
associated with the Transferred Certificates, that it has requested.
Very truly yours,
-------------------------------------
(Transferee)
By:
----------------------------------
Name:
Title:
F-2A-2
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and _________________________ as Certificate Registrar, with
respect to the mortgage pass-through certificates being transferred (the
"Transferred Certificates") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. bank, and not more than 18 months preceding such
date of sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months
--------
Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
preceding the date of sale of the Certificate in the case of a U.S.
savings and loan association, and not more than 18 months preceding
such date of sale for a foreign savings and loan association or
equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another
2
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
Yes No Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
3
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
-------------------------------------
Print Name of Transferee
By:
----------------------------------
Name:
Title:
Date:
4
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar] as Certificate Registrar,
with respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificates") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Yes No Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
2
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
-------------------------------------
Print Name of Transferee or
Adviser
By:
----------------------------------
Name:
Title:
IF AN ADVISER:
--------------------------------------
Print Name of Transferee
Date:
---------------------------------
3
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
________________________ as Certificate Registrar
________________________
________________________
Attention: _____________________________________
Re: CRIIMI MAE CMBS Corp., Mortgage Pass-Through Certificates, Series
199_ - ___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of Class ___ Certificates [having an initial aggregate
Certificate Principal Balance as of ____________, 199_ (the "Closing Date") of
$__________] [evidencing a ___% Percentage Interest in the related Class] (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of _____________, 199_ (the "Pooling and Servicing Agreement"), among CRIIMI
MAE CMBS Corp. as depositor (the "Depositor"), ________________________________
as master servicer, _____________ _________________ as special servicer, and
________________________ as trustee (in such capacity, the "Trustee") and REMIC
administrator. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you as Certificate
Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificates belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant any
applicable state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration and qualification and the Certificate
Registrar has received either: (A) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1A to the Pooling and Servicing Agreement; (B) a certificate from such
Certificateholder substantially in the form attached as Exhibit F-1B to the
Pooling and Servicing Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached either as Exhibit F-2A
or as Exhibit F-2B to the Pooling and Servicing Agreement; or (C) an opinion of
counsel satisfactory to the Trustee with respect to the availability of such
exemption from registration under the Securities Act, together with copies of
the written certification(s) from the transferor and/or transferee setting forth
the facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the provisions of
Section 5.02 of the Pooling and Servicing Agreement, which provisions it has
carefully reviewed, and that each Transferred Certificate will bear the
following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE
MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation with respect to any Certificate, any interest in any Certificate or
any other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Certificate, any
interest in any Certificate or any other similar security, which (in the case of
any of the acts described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act, would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities law or would require registration
or qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to any
Certificate, any interest in any Certificate or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, and
(e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificates; the Transferee
F-2B-2
has sought such accounting, legal and tax advice as it has considered necessary
to make an informed investment decision; and the Transferee is able to bear the
economic risks of such investment and can afford a complete loss of such
investment.
Very truly yours,
-------------------------------------
(Transferee)
By:
----------------------------------
Name:
Title:
F-2B-3
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE CERTIFICATES)
[Date]
____________________________ as Certificate Registrar
____________________________
____________________________
Attention: __________________________________________
Re: CRIIMI MAE CMBS Corp. Mortgage Pass-Through Certificates, Series
199_-___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate Certificate Principal
Balance as of_______, 199_ (the "Closing Date") of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of ______________, 199_, among CRIIMI MAE CMBS
Corp. as depositor, ___________________________________________ as master
servicer, ___________________________________________ as special servicer and
___________________________________________ as trustee and REMIC administrator.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you as Certificate
Registrar, as follows (check the applicable paragraph):
___ The Transferee is neither (A) an employee benefit plan or other retirement
arrangement, including an individual retirement account or annuity, a
▇▇▇▇▇ plan or a collective investment fund or separate account in which
such plans, accounts or arrangements are invested, including, without
limitation, an insurance company general account, that is subject to ERISA
or the Code (each, a "Plan"), nor (B) a Person who is directly or
indirectly purchasing the Transferred Certificates on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan;
___ The Transferee is using funds from an insurance company general account to
acquire the Transferred Certificates, however, the purchase and holding of
such Certificates by such Person 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 95-60.
Very truly yours,
-------------------------------------
(Transferee)
By:
----------------------------------
Name:
Title:
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (BOOK-ENTRY CERTIFICATES)
[Date]
[TRANSFEROR]
Re: CRIIMI MAE CMBS Corp., Mortgage Pass-Through Certificates, Series
199_-___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in
Class ___ Certificates [having an initial aggregate Certificate Principal
Balance as of __________, 199_ (the "Closing Date") of $__________] [evidencing
a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of ___________,
199_ (the "Pooling and Servicing Agreement"), among CRIIMI MAE CMBS Corp. as
depositor, _______________ ___________________as master servicer,
____________________________ as special servicer and ___________________________
as trustee (in such capacity, the "Trustee") and REMIC administrator. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you as follows (check
the applicable paragraph):
___ The Transferee is neither (A) an employee benefit plan or other retirement
arrangement, including an individual retirement account or annuity, a
▇▇▇▇▇ plan or a collective investment fund or separate account in which
such plans, accounts or arrangements are invested, including, without
limitation, an insurance company general account, that is subject to ERISA
or the Code (each, a "Plan"), nor (B) a Person who is directly or
indirectly purchasing an interest in the Transferred Certificates on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan;
___ The Transferee is using funds from an insurance company general account to
acquire an interest in the Transferred Certificates, however, the purchase
and holding of such interest by such Person 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
95-60.
Very truly yours,
-------------------------------------
(Transferee)
By:
----------------------------------
Name:
Title:
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of CRIIMI MAE CMBS Corp., Mortgage
Pass-Through Certificates, Series 199_-___, Class [R-I] [R-II] [R-III],
evidencing a ____% Percentage Interest in such Class (the "Residual
Certificates")), a ________________________ duly organized and validly existing
under the laws of ____________________, on behalf of which he/she makes this
affidavit. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement
pursuant to which the Residual Certificates were issued (the "Pooling and
Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization" or a possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor, or, if such transfer is through an agent (which
Person includes a broker, nominee or middleman) for a non-Permitted Transferee,
on the agent; (iii) that the Person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such Person an
affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury regulation Section 1.860E-1(c) and that
the transferor of a "noneconomic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
_________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificates (in particular, clause (ii)(A) of Section
5.02(d) which authorizes the Trustee to deliver payments on the Residual
Certificate to a Person other than the Transferee and clause (ii)(B) of Section
5.02(d) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 5.02(d)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale
of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee will, in connection with any transfer that it
makes of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit H-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
H-1-2
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this __ day of _______, 199__.
[NAME OF TRANSFEREE]
By:
----------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
------------------------
[Assistant] Secretary
Personally appeared before me the above-named ____________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the ____________________ of the Transferee, and
acknowledged to me that he/she executed the same as his/her free act and deed
and the free act and deed of the Transferee.
Subscribed and sworn before me this day of _____________________,
199__.
----------------------------------
NOTARY PUBLIC
COUNTY OF _____
STATE OF ________________
My Commission expires the _________ day of
___________, 19__.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF RESIDUAL CERTIFICATES
[Date]
_____________________________as Certificate Registrar
_____________________________
_____________________________
Attention: _________________________________________
Re: CRIIMI MAE CMBS Corp., Mortgage Pass-Through Certificates, Series
199_-___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in the related Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of _____________, 199_, among CRIIMI MAE CMBS Corp. as depositor,
_______________________ as master servicer, ____________________________________
as special servicer and _________________________ as trustee and REMIC
administrator. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby certifies, represents and warrants to you as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit H-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
-------------------------------------
(Transferor)
By:
----------------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
[RATING AGENCIES]
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.06 of the Pooling and
Servicing Agreement, dated as of ______________, 199_ and relating to CRIIMI MAE
CMBS Corp., Mortgage Pass-Through Certificates, Series 199_-___ (the
"Agreement"). Capitalized terms used but not otherwise defined herein shall have
respective meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
________________ to serve as the Special Servicer under the Agreement.
The designation of __________________ as Special Servicer will become
final if certain conditions are met and each Rating Agency delivers to
________________________________, the trustee under the Agreement (the
"Trustee"), written confirmation that if the person designated to become the
Special Servicer were to serve as such, such event would not result in the
qualification, downgrade or withdrawal of the rating or ratings assigned to one
or more Classes of the Certificates. Accordingly, such confirmation is hereby
requested as soon as possible.
Please acknowledge receipt of this notice by signing the enclosed copy of
this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
--------------------------
as Trustee
By:
-----------------------------
Name:
Title:
Receipt acknowledged:
------------------------------
By:
---------------------------------
Name:
Title:
Date:
------------------------------
By:
---------------------------------
Name:
Title:
Date:
I-1-2
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
[REMIC ADMINISTRATOR]
Re: CRIIMI MAE CMBS CORP., Series 199_-___
Ladies and Gentlemen:
Pursuant to Section 6.06 of the Pooling and Servicing Agreement, dated as
of ___________, 199_, relating to CRIIMI MAE CMBS CORP., Mortgage Pass-Through
Certificates, Series 199_-___ (the "Agreement"), the undersigned hereby agrees
with all the other parties to the Agreement that the undersigned shall serve as
Special Servicer under, and as defined in, the Agreement. The undersigned hereby
acknowledges that, as of the date hereof, it is and shall be a party to the
Agreement and bound thereby to the full extent indicated therein in the capacity
of Special Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 2.06 of the Agreement, with
the following corrections with respect to type of entity and jurisdiction of
organization: ____________________.
-------------------------------------
By:
----------------------------------
Name:
Title:
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
EXHIBIT 1 to EXHIBIT J
This Exhibit 1 is attached to and incorporated in a financing
statement pertaining to CRIIMI MAE CMBS Corp. as depositor (referred to as the
"Debtor" for the purpose of this financing statement only), and
_________________________ as trustee for the holders of the Series 199_-___
Certificates (referred to as the "Secured Party" for purposes of this financing
statement only), under that certain Pooling and Servicing Agreement, dated as of
____________, 199_ (the "Pooling and Servicing Agreement"), among the Debtor,
the Secured Party, _______________________________ as master servicer (the
"Master Servicer"), ____________________________ as special servicer (the
"Special Servicer") and ___________________ as REMIC administrator, relating to
the issuance of the Debtor's Mortgage Pass-Through Certificates, Series 199_-___
(collectively, the "Series 199_-___ Certificates"). Capitalized terms used
herein and not defined shall have the respective meanings given to them in the
Pooling and Servicing Agreement. The attached financing statement covers all of
the Debtor's right (including the power to convey title thereto), title and
interest in and to the Trust Fund created pursuant to the Pooling and Servicing
Agreement, consisting of the following:
1. The mortgage notes or other evidence of indebtedness of a
borrower (the "Mortgage Notes") with respect to the mortgage
loans (the "Mortgage Loans") listed on the Mortgage Loan
Schedule to the Pooling and Servicing Agreement, which
Mortgage Loan Schedule is attached hereto as Exhibit 3;
2. The related mortgages, deeds of trust or other similar
instruments securing such Mortgage Notes (the "Mortgages");
3. With respect to each Mortgage Note and each Mortgage, each
other document in the related Mortgage File;
4. (a) the Collection Account maintained by the Master Servicer
pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Collection Account, (c)
the investments of any such funds consisting of securities,
instruments or other obligations (including, without
limitation, the Permitted Investments described on Exhibit 2
hereto), and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation,
the right to payments of principal and interest and the right
to enforce the related payment obligations, arising from or
under any such investments;
5. All REO Property;
6. (a) the REO Account required to be maintained by the Special
Servicer pursuant to the Pooling and Servicing Agreement, (b)
all funds from time to time on deposit in the REO Account, (c)
the investments of any such funds consisting of securities,
instruments or other obligations (including, without
limitation, the Permitted Investments described on Exhibit 2
hereto), and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation,
the right to payments of principal and interest and the right
to enforce the related payment obligations, arising from or
under any such investments;
7. (a) the Servicing Account(s) and Reserve Account(s) maintained
by the Master Servicer or Special Servicer pursuant to the
Pooling and Servicing Agreement, and (b) all funds from time
to time on deposit in the Servicing Account(s) and Reserve
Account(s);
8. (a) the Distribution Account maintained by the Trustee
pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Distribution Account, (c)
the investments of any such funds consisting of securities,
instruments or other obligations (including, without
limitation, the Permitted Investments described on Exhibit 2
hereto), and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation,
the right to payments of principal and interest and the right
to enforce the related payment obligations, arising from or
under any such investments;
9. All insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement,
transferred to the Trust Fund and to be serviced by the Master
Servicer or Special Servicer; and
11. All income, payments, products and proceeds of any of the
foregoing, together with any additions thereto or
substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER DOCUMENTS IN THE RELATED
MORTGAGE FILES EVIDENCED BY THE SERIES 199_-___ CERTIFICATES, AND THIS FILING
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT OCCURRED. THE
REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE UNIFORM
COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR
SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER
DOCUMENT IN A MORTGAGE FILE. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS (INCLUDING WITHOUT LIMITATION, PERMITTED
INVESTMENTS) SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SECURITY,
INSTRUMENT OR OTHER OBLIGATION (INCLUDING WITHOUT LIMITATION, ANY PERMITTED
INVESTMENT) IS NOT AN INSTRUMENT, A CERTIFICATED SECURITY OR AN UNCERTIFICATED
SECURITY WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY
APPLICABLE JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE CONSTRUED AS A
CONCLUSION THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY
INTEREST OF THE SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT, INCLUDING,
WITHOUT LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST AND THE
RIGHT TO ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER ANY
SECURITY, INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY
PERMITTED INVESTMENT). WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY
IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
2
EXHIBIT 2 to EXHIBIT J
The term "Permitted Investments" shall include any of the following
instruments, securities or other 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, have a predetermined, fixed amount of principal
due at maturity (that cannot vary or change), do not have an
"r" highlighter attached to any rating, and each obligation
has a fixed interest rate or has its interest rate tied to a
single interest rate index plus a single fixed spread;
(ii) certain obligations of agencies or instrumentalities of the
United States that are not backed by the full faith and credit
of the United States, provided such obligations have a
predetermined, fixed amount of principal due at maturity (that
cannot vary or change), do not have an "r" highlighter
attached to any rating, and each obligation has a fixed
interest rate or has its interest rate tied to a single
interest rate index plus a single fixed spread;
(iii) federal funds, uncertificated certificates of deposit, time
deposits, bankers' acceptances and repurchase agreements having
maturities of not more than 365 days, of any bank or trust company
organized under the laws of the United States or any state thereof,
provided that such items are rated in the highest short-term debt
rating category of ____ ("_______") and, if rated thereby, _____
("______" and, together with ______, the "Rating Agencies") or, in
the case of each Rating Agency, such lower rating as will not result
in a qualification, downgrading or withdrawal of the rating then
assigned to any Class of Certificates by such Rating Agency (as
evidenced in writing by such Rating Agency), do not have an "r"
highlighter affixed to its rating and its terms have a predetermined
fixed amount of principal due at maturity (that cannot vary or
change), and each obligation has a fixed interest rate or has its
interest rate tied to a single interest rate index plus a single
fixed spread;
(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 (or of any corporation
not so incorporated, provided that the commercial paper is
United States Dollar denominated and amounts payable
thereunder are not subject to any withholding imposed by any
non-United States jurisdiction) which is rated in the highest
short-term debt rating category of each of the Rating Agencies
or, in the case of each Rating Agency, such lower rating as
will not result in a qualification, downgrading or withdrawal
of the rating then assigned to any Class of Certificates by
such Rating Agency (as evidenced in writing by such Rating
Agency), do not have an "r" highlighter affixed to its rating
and its terms have a predetermined fixed amount of principal
due at maturity (that cannot vary or change), and each
obligation has a fixed interest rate or has its interest rate
tied to a single interest rate index plus a single fixed
spread;
(v) units of money market funds which maintain a constant net
asset value and which are rated in the highest applicable
rating category of each of the Rating Agencies or, in the case
of each Rating Agency, such lower rating as will not result in
a qualification, downgrading or withdrawal of the rating then
assigned to any Class of Certificates by such Rating Agency
(as evidenced in writing by such Rating Agency); or
(vi) any other obligation or security acceptable to each Rating
Agency, which will not result in a qualification, downgrading
or withdrawal of the rating then assigned to any Class of
Certificates by such Rating Agency (as evidenced in writing by
such Rating Agency);
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) 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 (that
cannot vary or change).
2
EXHIBIT 3 to EXHIBIT J
MORTGAGE LOAN SCHEDULE
EXHIBIT K
CALCULATION OF NET OPERATING INCOME
With respect to any Mortgaged Property, "Net Operating Income" shall mean
for each fiscal year or portion thereof, (i) the related Operating Income
allocable to such period, less (ii) the related Operating Expenses allocable to
such period, and less (iii) any U/W Recurring Replacement Reserve and U/W
Leasing Commission and U/W Tenant Improvement for such Mortgaged Property as
indicated in the Prospectus Supplement dated ___________, 199_ relating to the
publicly offered classes of the CRIIMI MAE CMBS Corp., Mortgage Pass-Through
Certificates, Series 199_-___ (the amounts described in this clause (iii) to be
prorated if "Net Operating Income" is being calculated for less than a full
fiscal year).
With respect to any Mortgaged Property "Operating Income" shall mean, for
each fiscal year or portion thereof, all revenue derived by the related
Mortgagor arising from the Mortgaged Property, including, without limitation,
rental revenues (whether denominated as basic rent, additional rent, percentage
rent, escalation payments, electrical payments or otherwise) and other fees and
charges payable pursuant to leases or otherwise in connection with the Mortgaged
Property, and rent insurance proceeds. Operating Income shall not include (a)
insurance proceeds (other than proceeds of business interruption or other
similar insurance allocable to the applicable period) and condemnation awards
(other than awards arising from a temporary taking or the use and occupancy of
all or part of the applicable Mortgaged Property allocable to the applicable
period), or interest accrued on such proceeds or awards, (b) proceeds of any
financing, (c) proceeds of any sale, exchange or transfer of the Mortgaged
Property or any part thereof or interest therein, (d) capital contributions or
loans to the Mortgagor or an Affiliate of the Mortgagor, (e) any item of income
otherwise includible in Operating Income but paid directly by any tenant to a
Person other than the Mortgagor except for real estate taxes paid directly to
any taxing authority by any tenant, (f) any other extraordinary, non-recurring
revenues, (g) rent paid by or on behalf of any lessee under space lease which is
the subject of any proceeding or action relating to its bankruptcy,
reorganization or other arrangement pursuant to federal bankruptcy law or any
similar federal or state law or which has been adjudicated a bankrupt or
insolvent, unless such space lease has been affirmed by the trustee in such
proceeding or action, or (h) rent paid by or on behalf of any lessee under a
space lease the demised premises of which are not occupied either by such lessee
or by a sublessee thereof.
With respect to any Mortgaged Property "Operating Expenses" shall mean,
for each fiscal year or portion thereof, all expenses directly attributable to
the operation, repair and/or maintenance of the Mortgaged Property, including,
without limitation, impositions, insurance premiums, management fees, payments
to third party suppliers, and costs attributable to the operation, repair and
maintenance of the systems for heating, ventilating and air conditioning, and
actually paid for by the Mortgagor. Operating Expenses shall not include
interest, principal and premium, if any, due under the Mortgage Note or
otherwise in connection with any other secured indebtedness, income taxes,
extraordinary capital improvements costs, or any non-cash charge or expense such
as depreciation.
EXHIBIT L-1
FORM OF CERTIFICATE WITH RESPECT TO INFORMATION
REQUEST BY BENEFICIAL HOLDER
[Date]
_____________________________
_____________________________
_____________________________
Attention: ______________________________________
Re: CRIIMI MAE CMBS Corp., Series 199_-___
In accordance with Section 8.12(b) of the Pooling and Servicing
Agreement, dated as of______________, 199_ (the "Pooling and Servicing
Agreement"), among CRIIMI MAE CMBS Corp. as depositor (the "Depositor"),
_______________________________________________________ as master servicer,
________________________________________________________as special servicer and
_____________________________ as trustee (in such capacity, the "Trustee") and
REMIC administrator, with respect to the CRIIMI MAE CMBS Corp. Mortgage
Pass-Through Certificates, Series 199_-___ (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of the Class ____
Certificates.
2. The undersigned is requesting the information identified on
the schedule attached hereto pursuant to Section 8.12(b) of
the Pooling and Servicing Agreement (the "Information") for
use in evaluating its investment in the Class ____
Certificates.
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as
are assisting it in making the evaluation described in
paragraph 2), and such Information will not, without the prior
written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees,
agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in
part.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision
of the Securities Act of 1933, as amended (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended, or
would require registration of any Certificate pursuant to
Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall
indemnify the Depositor, the Trustee and the Trust Fund for
any loss, liability or expense incurred thereby with respect
to any such breach by the undersigned or any of its
Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[BENEFICIAL HOLDER OF A
CERTIFICATE]
By:
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Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE WITH RESPECT TO INFORMATION
REQUEST BY PROSPECTIVE PURCHASER
[Date]
_____________________________ as Trustee
_____________________________
_____________________________
Attention: _____________________________
Re: CRIIMI MAE CMBS Corp., Series 199_-___
In accordance with Section 8.12(b) of the Pooling and Servicing
Agreement, dated as of _____________, 199_ (the "Pooling and Servicing
Agreement"), among CRIIMI MAE CMBS Corp. as depositor (the "Depositor"),
____________________________ as master servicer, ______________________________
as special servicer and __________________ as trustee (in such capacity, the
"Trustee") and REMIC administrator, with respect to the CRIIMI MAE CMBS Corp.
Mortgage Pass-Through Certificates, Series 199_-___ (the "Certificates"), the
undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class
____ Certificates.
2. The undersigned is requesting the information identified on
the schedule attached hereto pursuant to Section 8.12(b) of
the Pooling and Servicing Agreement (the "Information") solely
for use in evaluating such possible investment.
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as
are assisting it in making the investment decision described
in paragraphs 1 and 2), and such Information will not, without
the prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees,
agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in
part.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision
of the Securities Act of 1933, as amended (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended, or
would require registration of any Certificate pursuant to
Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall
indemnify the Depositor, the Trustee and the Trust Fund for
any loss, liability or expense incurred thereby with respect
to any such breach by the undersigned or any of its
Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By:
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Name:
Title:
L-2-2